EXHIBIT 4
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STOCK PURCHASE AGREEMENT
BETWEEN
COMMERZBANK AKTIENGESELLSHAFT, GRAND CAYMAN BRANCH
AND
GENERAL ELECTRIC CAPITAL CORPORATION
DATED AS OF MARCH 22, 2002
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ARTICLE I DEFINITIONS........................................................1
Section 1.01. DEFINITIONS...................................................1
ARTICLE II PURCHASE AND SALE..................................................2
Section 2.01. PURCHASE AND SALE OF THE SELLER'S SHARES......................2
Section 2.02. PURCHASE PRICE................................................2
Section 2.03. CLOSING.......................................................2
Section 2.04. CLOSING DELIVERIES BY SELLER..................................2
Section 2.05. CLOSING DELIVERIES BY PURCHASER...............................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER...........................3
Section 3.01. ORGANIZATION, AUTHORITY AND QUALIFICATION OF SELLER...........3
Section 3.02. NO CONFLICT...................................................3
Section 3.03. OWNERSHIP OF THE SELLER'S SHARES..............................4
Section 3.04. ABSENCE OF LITIGATION.........................................4
Section 3.05. BROKERS.......................................................4
Section 3.06. DIVIDENDS PAID................................................4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER........................4
Section 4.01. ORGANIZATION AND AUTHORITY OF PURCHASER.......................4
Section 4.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS....................5
Section 4.03. FINANCIAL ABILITY.............................................5
Section 4.04. BROKERS.......................................................5
Section 4.05. ABSENCE OF LITIGATION.........................................5
ARTICLE V ADDITIONAL AGREEMENTS..............................................6
Section 5.01. NO DISPOSITION OR ENCUMBRANCE OF THE SELLER'S SHARES..........6
Section 5.02. NOTIFICATION OF CERTAIN MATTERS...............................6
Section 5.03. FURTHER ACTION; REASONABLE COMMERCIAL EFFORTS.................6
Section 5.04. PUBLIC ANNOUNCEMENTS..........................................6
ARTICLE VI CONDITIONS TO CLOSING..............................................7
Section 6.01. CONDITIONS TO THE CLOSING.....................................7
Section 6.02. CONDITIONS TO OBLIGATIONS OF SELLER...........................7
Section 6.03. CONDITIONS TO OBLIGATIONS OF PURCHASER........................8
ARTICLE VII TERMINATION AND WAIVER.............................................8
Section 7.01. TERMINATION...................................................8
Section 7.02. EFFECT OF TERMINATION.........................................9
Section 7.03. WAIVER........................................................9
ARTICLE VIII GENERAL PROVISIONS.................................................9
Section 8.01. NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................9
Section 8.02. EXPENSES......................................................9
Section 8.03. NOTICES.......................................................9
Section 8.04. HEADINGS.....................................................10
Section 8.05. SEVERABILITY.................................................10
Section 8.06. ENTIRE AGREEMENT.............................................10
Section 8.07. ASSIGNMENT...................................................10
Section 8.08. PARTIES IN INTEREST..........................................11
Section 8.09. GOVERNING LAW................................................11
Section 8.10. WAIVER OF JURY TRIAL.........................................11
Section 8.11. COUNTERPARTS.................................................11
Section 8.12. SPECIFIC PERFORMANCE.........................................11
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 22, 2002 (this
"AGREEMENT"), between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation ("PURCHASER"), and COMMERZBANK AKTIENGESELLSHAFT, GRAND CAYMAN
BRANCH, a Cayman Islands licensed branch of a German corporation ("SELLER"), as
stockholder of SECURITY CAPITAL GROUP INCORPORATED, a Maryland corporation (the
"COMPANY").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller is the record and beneficial owner of 257,642 shares
of Series B Cumulative Convertible Redeemable Voting Preferred Stock, par value
$0.01 per share, of the Company (Seller's "SHARES");
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase from Seller, the Seller's Shares, upon the terms and subject to the
conditions set forth herein;
WHEREAS, Purchaser and EB Acquisition Corp., a wholly owned indirect
subsidiary of Purchaser and a Maryland corporation ("MERGER SUB"), have
separately entered into an Agreement and Plan of Merger, dated as of December
14, 2001 (as amended from time to time, the "MERGER AGREEMENT"), with the
Company, pursuant to which Merger Sub, upon the terms and subject to the
conditions set forth in the Merger Agreement, will merge with and into the
Company, with the Company surviving such merger (the "MERGER");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, Purchaser and Seller hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. For purposes of this Agreement:
"ACTION" means any litigation, suit, claim, action, proceeding or
investigation.
"GOVERNMENTAL AUTHORITY" means any United States federal, state,
county or local or non-United States government, governmental, regulatory or
administrative authority, agency, instrumentality or commission or any court,
tribunal, judicial or arbitral body.
"LAW" means any United States or non-United States statute, law,
ordinance, regulation, rule, code, executive order, injunction, judgment, decree
or other order.
"LIEN" means any lien, mortgage, deed of trust, pledge,
hypothecation, security interest, encumbrance, claim or charge of any kind, or
any conditional sale agreement or other agreement to create any of the
foregoing.
"PURCHASE PRICE BANK ACCOUNT" means a bank account to be designated
by Seller in a written notice to Purchaser at least three business days before
the Closing.
ARTICLE II
PURCHASE AND SALE
Section 2.01. PURCHASE AND SALE OF THE SELLER'S SHARES. Upon the terms and
subject to the conditions contained in this Agreement, at the Closing (as
hereinafter defined), Seller shall sell to Purchaser, and Purchaser shall
purchase from Seller, the Seller's Shares.
Section 2.02. PURCHASE PRICE. The purchase price for each of the Seller's Shares
shall consist of the amount of immediately available United States dollars
(the "CASH PURCHASE PRICE") equal to $1,000 plus all accrued and unpaid
dividends payable thereon (calculated at the dividend rate and otherwise
in accordance with the terms of the designations of the Seller's Shares)
up to, but excluding, the Closing Date.
Section 2.03. CLOSING. Subject to the terms and conditions of this Agreement,
the sale and purchase of the Seller's Shares contemplated by this
Agreement shall take place at a closing (the "CLOSING") to be held at the
offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, immediately following the consummation of the Merger, provided that
all conditions to the obligations of the parties set forth in Article 6
are at such time satisfied or waived, or at such other place or at such
other time or on such other date as Seller and Purchaser may mutually
agree upon in writing (the date on which the Closing takes place being the
"CLOSING DATE").
Section 2.04. CLOSING DELIVERIES BY SELLER. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser:
(a) stock certificates evidencing the Seller's Shares duly endorsed in blank,
or accompanied by stock powers duly executed in blank, in form reasonably
satisfactory to Purchaser and with all required stock transfer tax stamps,
if any, affixed;
(b) a receipt for an amount equal to the Cash Purchase Price; and
(c) the certificates and other documents required to be delivered pursuant to
Section 6.03.
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Section 2.05. CLOSING DELIVERIES BY PURCHASER. At the Closing, Purchaser shall
deliver to Seller:
(a) an amount equal to the Cash Purchase Price by wire transfer in immediately
available funds to the Purchase Price Bank Account; and
(b) the certificates and other documents required to be delivered pursuant to
Section 6.02.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller
hereby represents and warrants to Purchaser as of the date hereof and as of the
Closing Date as follows:
Section 3.01. ORGANIZATION, AUTHORITY AND QUALIFICATION OF SELLER. Seller is a
Cayman Islands licensed branch of a banking corporation duly organized,
validly existing and in good standing under the laws of Germany and has
all necessary corporate power and authority to enter into this Agreement,
to carry out its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Seller, the performance by Seller of its obligations hereunder and the
consummation by Seller of the transactions contemplated hereby have been
duly authorized by all requisite action on the part of Seller. This
Agreement has been duly executed and delivered by Seller, and (assuming
due authorization, execution and delivery by Purchaser) this Agreement
constitutes a legal, valid and binding obligation of Seller enforceable
against it in accordance with its terms.
Section 3.02. NO CONFLICT. (a) The execution, delivery and performance of this
Agreement by Seller do not and will not, (i) contravene, conflict with or
violate the certificate of incorporation, by-laws or equivalent
organizational documents of Seller, (ii) assuming satisfaction of the
requirements set forth in Section 3.02(b) below and the accuracy of
Purchaser's representations and warranties set forth in Section 4.02,
contravene, conflict with or violate any Law applicable to Seller or by
which any property or asset of Seller is bound or affected, or (iii)
result in any breach of, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a Lien on any property or asset of Seller
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation,
except for any such conflicts, violations, breaches, defaults or other
occurrences that would not adversely affect or materially delay the
ability of Seller to carry out its obligations under, and to consummate
the transactions contemplated by, this Agreement.
(b) Assuming the accuracy of Purchaser's representations and warranties set
forth in Section 4.02, the execution, delivery and performance of this
Agreement by Seller do not and will not require any consent, approval,
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authorization or permit of, or filing with or notification to, any
Governmental Authority.
Section 3.03. OWNERSHIP OF THE SELLER'S SHARES.
(a) Seller is the sole record and beneficial owner of, and has good title
to each of the Seller's Shares. The Seller's Shares are owned free and
clear of all Liens, other than any Liens created by this Agreement.
(b) To the Seller's knowledge, the Seller's Shares are validly issued, fully
paid and nonassessable. Such Shares are all the equity securities of the
Company owned, either of record or beneficially, by Seller and Seller does
not have any option or other right to acquire any other securities of the
Company. Seller has not appointed or granted any proxy, which appointment
or grant is still effective, with respect to the Seller's Shares. At the
Closing, Seller shall deliver, and upon such delivery and payment of the
Cash Purchase Price therefor, good, valid and marketable title to the
Seller's Shares free and clear of any Liens, other than pursuant to this
Agreement.
Section 3.04. ABSENCE OF LITIGATION. There is no Action pending or, to the
knowledge of Seller, threatened against Seller, or any property or asset
of Seller, before any Governmental Authority that seeks to delay or
prevent the consummation of the transactions contemplated by this
Agreement.
Section 3.05. BROKERS. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Seller.
Section 3.06. DIVIDENDS PAID. Seller has received full cash dividend payments
with respect to the Seller's Shares for all dividend periods beginning on
the date on which such Shares were issued by the Company through the most
recent quarterly dividend payment date and no dividends are in arrears.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement, Purchaser
hereby represents and warrants to Seller as of the date hereof and as of the
Closing Date as follows:
Section 4.01. ORGANIZATION AND AUTHORITY OF PURCHASER. Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all necessary corporate power
and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Purchaser, the performance by
Purchaser of its obligations hereunder and the consummation by Purchaser
of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of Purchaser. This Agreement has been duly
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executed and delivered by Purchaser, and (assuming due authorization,
execution and delivery by Seller) this Agreement constitutes a legal,
valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms.
Section 4.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The execution,
delivery and performance of this Agreement by Purchaser do not and will
not (i) contravene, conflict with or violate the certificate of
incorporation, by-laws or equivalent organizational documents of
Purchaser, (ii) assuming satisfaction of the requirements set forth in
4.02(b) below, contravene, conflict with or violate any Law applicable to
Purchaser or by which any property or asset of Purchaser is bound or
affected or (iii) result in any breach of, or constitute a default (or
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a Lien on
any property or asset of Purchaser pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation, except for any such conflicts, violations,
breaches, defaults or other occurrences that would not adversely affect or
materially delay the ability of Purchaser to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement.
(b) Assuming the accuracy of Seller's representations and warranties set forth
in Section 3.02, the execution, delivery and performance of this Agreement
by Purchaser do not and will not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any
Governmental Authority.
Section 4.03. FINANCIAL ABILITY. Purchaser has or will have at the Closing
sufficient funds to permit Purchaser to consummate the transactions
contemplated hereby.
Section 4.04. BROKERS. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Purchaser.
Section 4.05. ABSENCE OF LITIGATION. There is no Action pending or, to the
knowledge of Purchaser, threatened against Purchaser or any of its
subsidiaries, or any property or asset of Purchaser or any of its
subsidiaries, before any Governmental Authority that seeks to materially
delay or prevent the consummation of the transactions contemplated by this
Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.01. NO DISPOSITION OR ENCUMBRANCE OF THE SELLER'S SHARES. Seller
agrees that until the earliest to occur of the Closing or the termination
5
of this Agreement, Seller shall not (i) sell, transfer, tender, pledge,
assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to,
deposit into any voting trust, enter into any voting agreement with
respect to, or create or permit to exist any Liens of any nature
whatsoever with respect to, any of the Seller's Shares (or agree or
consent to, or offer to do, any of the foregoing), (ii) take any action
that would make any representation or warranty of Seller herein untrue or
incorrect in any material respect or have the effect of preventing or
disabling Seller from performing Seller's obligations hereunder or (iii)
directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any
of the foregoing.
Section 5.02. NOTIFICATION OF CERTAIN MATTERS. Seller shall give prompt notice
to Purchaser, and Purchaser shall give prompt notice to Seller, of (a) the
occurrence, or non-occurrence, of any event the occurrence, or
non-occurrence, of which reasonably could be expected to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect and (b) any failure of Seller or
Purchaser, as the case may be, to comply with or satisfy any covenant or
agreement to be complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this Section 5.03
shall not limit or otherwise affect the remedies available hereunder to
the party receiving such notice.
Section 5.03. FURTHER ACTION; REASONABLE COMMERCIAL EFFORTS. (a) Upon the terms
and subject to the conditions hereof, the parties hereto shall use their
respective reasonable commercial efforts to take, or cause to be taken,
all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable Laws to consummate and
make effective the transactions contemplated by this Agreement.
(b) The parties hereto agree to cooperate and use their respective reasonable
commercial efforts to contest and resist any Action, including
administrative or judicial Action, and to have vacated, lifted, reversed
or overturned any decree, judgment, injunction or other order (whether
temporary, preliminary or permanent) that is in effect and that restricts,
prevents or prohibits consummation of the transactions contemplated by
this Agreement, including, without limitation, by pursuing all available
avenues of administrative and judicial appeal.
Section 5.04. PUBLIC ANNOUNCEMENTS. The parties hereto agree that no public
release or announcement concerning the transactions contemplated by this
Agreement shall be issued by any party without the prior consent (which
consent shall not be unreasonably withheld) of Purchaser, in the case of a
release or announcement by Seller or any of its affiliates, or Seller, in
the case of a release or announcement by Purchaser or any of its
affiliates, except as such release or announcement may be required by Law
or the rules or regulations of any United States or non-United States
securities exchange, in which case the party required to make the release
or announcement shall use its reasonable commercial efforts to allow the
other party reasonable time to comment on such release or announcement in
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advance of such issuance. Notwithstanding the foregoing, Seller agrees to
permit Purchaser to request that the Company publish and disclose in the
proxy statement to be sent to the Company's stockholders pursuant to the
Merger Agreement and publish and disclose in related filings by the
Company or Purchaser under the securities laws Seller's identity and
ownership of the Seller's Shares and the nature of its commitments,
arrangements and understandings under this Agreement; provided that Seller
shall be given reasonable opportunity to review and comment upon any such
materials filed by the Company or Purchaser under the securities laws
describing Seller or the transactions contemplated by this Agreement prior
to such publication and disclosure; provided further, however, that
nothing herein shall be deemed to provide Seller with any right of
approval with respect to the disclosure in any such materials filed by the
Company or Purchaser under the securities laws describing Seller, the
transactions contemplated by this Agreement or otherwise.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.01. CONDITIONS TO THE CLOSING. The obligations of each party to
consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) NO ORDER; COMPLIANCE WITH LAW. (i) No Governmental Authority shall have
enacted, issued, promulgated, enforced or entered any Law (whether
temporary, preliminary or permanent) which is then in effect and has the
effect of making the acquisition of any or all of the Seller's Shares by
Purchaser or any affiliate of Purchaser illegal or otherwise restricting
or prohibiting consummation of the transactions contemplated by this
Agreement and (ii) the consummation of the transactions contemplated by
this Agreement shall not conflict with or violate any provision of United
States Law; and
(b) MERGER. All conditions to the consummation of the Merger shall have been
satisfied or waived and the Merger shall have been consummated immediately
prior to the Closing.
Section 6.02. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller to
consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Purchaser contained in Article IV in this Agreement (i) that are qualified
by materiality shall be true and correct as of the Closing with the same
force and effect as if made as of the Closing, and (ii) that are not
qualified by materiality shall be true and correct in all material
respects as of the Closing with the same force and effect as if made as of
the Closing, and Seller shall have received a certificate to such effect
signed by a duly authorized officer of Purchaser; and
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(b) COVENANTS. The covenants and agreements contained in this Agreement to be
complied with by Purchaser on or before the Closing shall have been
complied with in all material respects, and Seller shall have received a
certificate to such effect signed by a duly authorized officer of
Purchaser.
Section 6.03. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment, at or prior to the Closing, of each
of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. (i) The representations and warranties of
Seller contained in Article III of this Agreement (A) that are qualified
by materiality shall be true and correct as of the Closing with the same
force and effect as if made as of the Closing, and (B) that are not
qualified by materiality shall be true and correct in all material
respects as of the Closing with the same force and effect as if made as of
the Closing and (ii) the representations contained in Section 3.03 shall
be true and correct as of the Closing with the same force and effect as if
made as of the Closing, and Purchaser shall have received a certificate to
such effect signed by a duly authorized officer of Seller; and
(b) COVENANTS. The covenants and agreements contained in this Agreement to be
complied with by Seller on or before the Closing shall have been complied
with in all material respects, and Purchaser shall have received a
certificate to such effect signed by a duly authorized officer of Seller.
ARTICLE VII
TERMINATION AND WAIVER
Section 7.01. TERMINATION. This Agreement may be terminated at any time prior
to the Closing:
(a) by mutual written consent of each of Seller and Purchaser; or
(b) by either Seller or Purchaser if:
(i) any Governmental Authority in the United States, Germany or the Cayman
Islands shall have enacted, issued, promulgated, enforced or entered any
injunction, order, decree or ruling (whether temporary, preliminary or
permanent) which has become final and nonappealable and has the effect of
making the transactions contemplated by this Agreement illegal or
otherwise preventing or prohibiting consummation of the transactions
contemplated by this Agreement; or
(ii) the Merger Agreement shall have been terminated.
Section 7.02. EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 7.01, this Agreement shall forthwith
become void and there shall be no liability on the part of either party
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hereto except (a) as set forth in Section 8.02 and (b) that nothing herein
shall relieve any party from liability for any breach of this Agreement.
Section 7.03. WAIVER. At any time prior to the Closing, either of the parties
hereto may (a) extend the time for the performance of any obligation or
other act of the other party hereto, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in
any document delivered pursuant hereto and (c) waive compliance with any
agreement of the other party or any condition to its own obligations
contained herein. Any such extension or waiver shall be valid if set forth
in an instrument in writing signed by the party or parties to be bound
thereby.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The covenants
(other than any covenants to be performed after the Closing) and
representations and warranties of Seller and of Purchaser (other than the
representations and warranties contained in Section 3.03) shall not
survive the Closing.
Section 8.02. EXPENSES. Except as otherwise specified in this Agreement, all
costs and expenses, including, without limitation, fees and disbursements
of counsel, financial advisors and accountants, incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid
by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
Section 8.03. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
telecopy, or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice
given in accordance with this Section 8.03):
if to Seller:
Commerzbank AG
New York and Grand Cayman Branches
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ Boehsch
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with a copy to:
Commerzbank AG
New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
if to Purchaser:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇ [Ref: Security Capital]
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Section 8.04. HEADINGS. The descriptive headings contained in this Agreement
are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 8.05. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the
fullest extent possible.
Section 8.06. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral,
among the parties or any of them, with respect to the subject matter
hereof.
Section 8.07. ASSIGNMENT. This Agreement shall not be assigned (whether pursuant
to a merger, operation of law or otherwise), except that Purchaser may
assign all or any of its rights and obligations under this Agreement to
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any affiliate; PROVIDED that no such assignment shall relieve Purchaser of
its obligations hereunder.
Section 8.08. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
Section 8.09. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving
effect to the choice of Law principles thereof. The parties hereto hereby
(a) submit to the exclusive jurisdiction of any state or federal court
sitting in the State of Delaware in respect of the interpretation and
enforcement of the provisions of this Agreement brought by any party
hereto, and (b) irrevocably waive, and agree not to assert by way of
motion, defense, or otherwise, in any such Action, any claim that it is
not subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that the
Action is brought in an inconvenient forum, that the venue of the Action
is improper, or that this Agreement may not be enforced in or by any of
the above-named courts.
Section 8.10. WAIVER OF JURY TRIAL. Each of the parties hereto hereby waives to
the fullest extent permitted by applicable Law any right it may have to a
trial by jury with respect to any Action directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties
hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party
would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement by, among other things, the mutual
waivers and certifications in this Section 8.10.
Section 8.11. COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Section 8.12. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to
any other remedy at Law or equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
COMMERZBANK AKTIENGESELLSHAFT, GRAND CAYMAN BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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