ABS Purchase Agreement
Exhibit
10.3
EXECUTION
VERSION
This
Agreement (this “Agreement”), dated as of November 29, 2007,
constitutes the understanding and agreement by and among Citadel Equity
Fund Ltd. (“CEFL”), an affiliate of Citadel Limited
Partnership (“Citadel”), E*TRADE
Bank (the “Bank”),
E*TRADE Global
Asset Management, Inc.
(“ETGAM”, and together with the Bank, the
“Sellers”), and E*TRADE Financial
Corporation
(the “Company”) regarding
the acquisition by CEFL of all of the Sellers’ Asset-Backed Securities
(“ABS”) portfolio (including CMOs, CDOs and other asset-backed
instruments) listed on Schedule A hereto (the “Portfolio”, and
each line-item of which is a “Position”).
1. Transfer.
In consideration of the Purchase Price (as hereinafter defined) and the
premises set forth herein and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, effective as of
the
Initial Closing Date (as defined in the Investment and Securities Purchase
Agreement, dated as of November 29, 2007 by and between ▇▇▇▇▇▇▇ Capital Ltd.
and
the Company (the “Investment Agreement”)) (the
“Effective Date”), the Sellers hereby sell, transfer,
assign
and convey to CEFL, free and clear of all liens, claims, encumbrances or
rights
of third parties of any kind, all right, title and interest in and to the
Portfolio and the Positions and CEFL hereby purchases from the Sellers all
right, title and interest in and to, and assumes the obligations of the Sellers
in respect of, the Portfolio and Positions, in each case on the terms and
subject to the conditions set forth herein (the
“Transfer”).
2. Purchase
Price. The “Purchase Price” means (a) eight
hundred million dollars ($800,000,000), plus (b) any and all interest which,
as
of the Effective Date, is accrued and unpaid for the Positions (except with
respect to those ABS CDOs and TRUPS CDOs listed on Schedule B hereto) with
respect to the periods prior to 12:01 a.m. New York City time on November
18,
2007 (the “Accrued Interest Amount”), less (c) any and all
principal and interest payments which, as of the Effective Date, have been
received directly or indirectly by the Sellers for the Positions with respect
to
the periods between 12:01 a.m. New York City time on November 18, 2007 and
12:01
a.m. New York City time on the Effective Date (the “Principal and
Interest Amount”).
3. Closing. Upon
the terms and subject to the conditions herein (including, but not limited
to,
the terms of paragraph 8, regarding the Mechanics of the Transfer of Positions
and the Movement of Cash), on the Effective Date, CEFL shall pay, or shall
cause
to be paid to the Sellers: (a) eight hundred million dollars ($800,000,000)
plus, (b) the Estimated Accrued Interest Amount. These payments shall
be made as follows:
(i)
CEFL
shall pay, or shall cause to be paid to the Bank, (a) seven hundred ninety
million seven hundred twenty-five thousand six dollars and ninety cents
($790,725,006.90) plus, (b) the Estimated Accrued Interest Amount for the
“Bank”
Positions which is equal to nine million seven hundred sixty-four thousand
seven
hundred thirty-eight dollars and sixty-seven cents ($9,764,738.67);
and
(ii)
CEFL
shall pay, or shall cause to be paid to ETGAM, (a) nine million two hundred
seventy-four thousand nine hundred ninety-three dollars and ten cents
($9,274,993.10) plus, (b) the Estimated Accrued Interest Amount for the “ETGAM”
Positions which is equal to thirty-three thousand seven hundred thirty-four
dollars and forty-four cents ($33,734.44).
To
the
extent that the Effective Date Payment is not made completely in connection
with
the DVP/RVP settlement process set forth in paragraph 8, then any remaining
portions of the Effective Date Payment will be made by wire transfer of
immediately available funds to the Bank’s and/or ETGAM’s accounts designated
below immediately following the completion of such settlement
process.
In
addition to the foregoing payments, on the Effective Date, the Sellers shall
pay, or shall cause to be paid to CEFL, the Estimated Principal and Interest
Amount by wire transfer of immediately available funds to an account designated
below by CEFL.
“Estimated
Accrued Interest Amount” means $9,798,473.11, which is a good faith
estimate by CEFL and the Sellers of the Accrued Interest
Amount. “Estimated Principal and Interest Amount”
means $18,035,093.85, which is a good faith estimate by
CEFL and the Sellers of
the Principal and Interest Amount received or likely to be received by the
Sellers. “Effective Date Payment” means eight
hundred million dollars ($800,000,000) plus, (x) the Estimated Accrued Interest
Amount less (y) the Estimated Principal and Interest Amount.
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4.
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Purchase
Price Adjustment.
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(a) Purchase
Price Adjustment Statement. Within thirty (30) days after the
Effective Date, the Sellers shall prepare and deliver to CEFL a statement
of the
Principal and Interest Amount, which statement shall separately identify
“Bank”
Positions and “ETGAM” Positions. Within forty-five (45) days after
the Effective Date, CEFL shall prepare and deliver to the Sellers a statement
of
the Accrued Interest Amount and the Principal and Interest Amount, which
statement shall separately identify “Bank” Positions and “ETGAM” Positions
(which may include adjustments to the Principal and Interest Amount provided
by
the Sellers if such adjustments are necessary to correct the information)
as of
the Effective Date for purposes of calculating the adjustment to the Effective
Date Payment (the “Purchase Price Adjustment
Statement”). CEFL shall have reasonable access
to any documents, schedules or work papers of the Sellers related to the
Principal and Interest Amount.
(b) Review. The
Sellers shall have fifteen (15) days after delivery of the Purchase Price
Adjustment Statement to review the Purchase Price Adjustment
Statement. If the Sellers fail to deliver to CEFL a written objection
to the Purchase Price Adjustment Statement within such fifteen (15) day period,
the Purchase Price Adjustment Statement shall be deemed to be agreed to by
the
Sellers and will be final and binding upon the parties. If the
Sellers disagree with the determination of the adjustment to the
Effective Date Payment under the Purchase Price Adjustment Statement, the
Sellers must notify CEFL in writing of such disagreement within such fifteen
(15) day period, which notice shall describe the nature of any such disagreement
in reasonable detail, identify the specific items involved and the dollar
amount
of each such disagreement and provide reasonable supporting documentation
for
each such disagreement.
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During
the
fifteen (15) day period of its review, the Sellers shall have reasonable
access
to any documents, schedules or work papers used in the preparation of the
Purchase Price Adjustment Statement.
(c) Dispute
Resolution. The Sellers and CEFL agree to negotiate in good faith
to resolve any such disagreement and any resolution agreed to in writing
by the
Sellers and CEFL shall be final and binding upon the parties. If the
Sellers and CEFL are unable to resolve all disagreements properly identified
by
the Sellers pursuant to Section 4(c) hereof within twenty (20) days after
delivery to CEFL of written notice of such disagreement, then the disputed
matters shall be referred for final determination to arbitration. The
Sellers and CEFL shall jointly select an arbiter from an accounting firm
of
national standing that is not the independent auditor of either the Sellers
or
CEFL (or their respective affiliates); if the Sellers and CEFL are unable
to
select such an arbiter within five (5) days after the end of such twenty
(20)
day period, the American Arbitration Association shall make such
selection. The person so selected shall be referred to herein as the
“Arbitrator”. The Arbitrator shall deliver to the
Sellers and CEFL, as promptly as practicable after its appointment and in
any
event within thirty (30) days after its appointment, a written report setting
forth the resolution of any such disagreement determined in accordance with
the
terms herein. Such report shall be final and binding upon the Sellers
and CEFL. The fees, expenses and costs of the Arbitrator shall be
borne equally by the Sellers and CEFL.
(d) The
“Final Accrued Interest Amount” and the “Final
Principal and Interest Amount” means the Accrued Interest Amount (with
respect to “Bank” Positions and “ETGAM” Positions) and the Principal and
Interest Amount (with respect to “Bank” Positions and “ETGAM” Positions)
respectively, each as either (a) set forth in the Purchase Price Adjustment
Statement (if the Sellers do not object within the fifteen (15) day period),
(b)
mutually agreed upon by the Sellers and CEFL or (c) finally determined by
the
Arbitrator.
(e) Purchase
Price Adjustment. In the event that the Estimated Principal and
Interest Amount (with respect to “Bank” Positions and/or “ETGAM” Positions, as
the case may be) is greater than the Final Principal and Interest Amount
(with
respect to “Bank” Positions and/or “ETGAM” Positions, as the case may be), CEFL
shall pay the applicable Seller an amount equal to the difference between
the
applicable Estimated Principal and Interest Amount and the applicable Final
Principal and Interest Amount in accordance with Section 4 hereof. In
the event that the applicable Final Principal and Interest Amount is greater
than the applicable Estimated Principal and Interest Amount, the applicable
Seller shall pay CEFL an amount equal to the difference between the applicable
Final Principal and Interest Amount and the applicable Estimated Principal
and
Interest Amount in accordance with Section 4 hereof. In the event
that the applicable Estimated Accrued Interest Amount is greater than the
applicable Final Accrued Interest Amount, the applicable Seller shall pay
CEFL
an amount equal to the difference between the applicable Estimated Accrued
Interest Amount and the applicable Final Accrued Interest Amount in accordance
with Section 4 hereof. In the event that the applicable Final Accrued
Interest Amount is greater than the applicable Estimated Accrued Interest
Amount, CEFL shall pay the applicable Seller an amount equal to the difference
between the applicable Final Accrued Interest Amount and the applicable
Estimated Accrued Interest Amount in accordance with Section 4
hereof.
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(f) Payment. Any
adjustment to the Effective Date Payment shall be paid by the Sellers or
CEFL,
as applicable, by wire transfer of immediately available funds to an account
designated by the party receiving such payment within five (5) Business Days
(as
hereinafter defined) after the final determination of the adjustment to the
Effective Date Payment. “Business Day” means a day other than a
Saturday, a Sunday or any other day on which commercial banks in the State
of
New York are authorized or obligated to be closed.
5. Post-Closing
Principal and Interest Payments. Any and all principal and
interest payments received by the Sellers or its affiliates for the Positions
after 12:01 a.m. New York City time on the Effective Date shall be held in
trust
thereby and shall be paid promptly by the Sellers to CEFL, by wire transfer
of
immediately available funds to an account designated by CEFL within five
(5)
Business Days after CEFL receives notice from the Sellers of such principal
and
interest payments.
6. Portfolio. The
Portfolio consists of the Positions listed by CUSIP, original size, and/or
size
as of the end of September, 2007, on Schedule A. Each of the Sellers
and the Company represents and warrants (a) that Schedule A accurately reflects
the Positions in all respects set forth therein (e.g., the CUSIP,
Original Face Amount, September 30 Face Amount, nature of exposure, and the
like), (b) that there are no Over-The-Counter (OTC) derivative or forward
positions contained within the Portfolio (including, but not limited to,
credit
default swaps), (c) that no novations or assignments are necessary to vest
CEFL
with full right, title and interest in the Positions, (d) that there are
no
short positions contained within the Portfolio, and (e) that the Positions
will
be delivered to CEFL by the Sellers free and clear of any liens, pledges
and
other encumbrances.
7. Trade
Breaks. If Citadel identifies any “trade breaks” (such as errors
in the instrument, CUSIP, nature of exposure (such as short rather
than long), Original or Current Face Amount, or the like) resulting in
differences in the composition of any Position being transferred from the
information set forth in Schedule A, the Sellers and the Company shall, at
CEFL’s election, (a) take such action as may be necessary to conform such
Position to the information set forth in Schedule A, and to place CEFL in
the
position it would have been in had the Position been as represented (such
as by
replacing the Position with a conforming Position) or (b) pay CEFL the greater
of the difference between the fair market value that the Position would have
had
if the Position had been as identified in Schedule A and the fair market
value
as actually received on (i) the Effective Date or (ii) the date on which
Citadel
notifies the Sellers of the trade break, it being understood that Citadel
will
begin managing the risk associated with each Position as reflected on Schedule
A
on behalf of CEFL immediately upon the execution of this
Agreement. Notwithstanding the foregoing, Citadel is not entitled to
be put in a better financial position than it would have been in had there
been
no trade break.
In
the
event that the parties have a dispute regarding any claimed trade break,
each
party may seek resolution of such dispute in accordance with the terms of
the
Investment Agreement.
8. Mechanics
of the Transfer of Positions and the Movement of Cash. The
Sellers, as promptly as practicable, shall take any and all actions necessary
to
effect the transfer
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of
the
Positions to CEFL on the terms contemplated hereby (including but not limited
to
executing any documents and instruments reasonably required by CEFL and
providing appropriate instructions, and procuring the consent of third parties)
via (a) the DTC for DTC-eligible securities or such other custodian as
designated by CEFL; (b) physical delivery to CEFL’s designated custodian for
non-DTC-eligible securities, or (c) such other acceptable processes as the
parties may agree. The Company and the Sellers, jointly and
severally, will hold CEFL harmless from any costs or losses of the Positions
incurred as the result of any inability to transfer such Positions on the
terms
contemplated hereby. The parties will endeavor to settle
the transfer of the Positions via the
Delivery-Versus-Payment/Receive-Versus-Payment (DVP/RVP) method. For
these settlement purposes only, the parties will agree to dollar values for
each
Position so that each Position will move versus cash. The parties will make
all
commercially reasonable efforts to settle these cash versus Position transfers
on the Effective Date, but recognize that it may take more than one business
day
to complete.
9. Cooperation. The
parties will use their reasonable best efforts to cooperate with each other
in
effectuating this Agreement, including but not limited to executing any
necessary instruments and other documents and providing appropriate
instructions. To the extent not already provided, the Sellers will
immediately provide CEFL with copies of the most current back office and
other
files containing details relating to the Positions and will provide them
in such
file and other format as requested by CEFL.
10. Certain
Information. The Sellers acknowledge that because it desires to
sell, transfer, assign and convey to CEFL all of its Positions in the Portfolio,
it is possible that CEFL may have information about one or more of the
Positions, issuers or reference entities of Positions that is not publicly
available and that may be material (“Excluded
Information”). The Sellers acknowledge and agree that it has
not requested that Excluded Information be disclosed to it and that Excluded
Information is not being disclosed to it. The Sellers hereby
irrevocably and unconditionally waive any right that it may have to the
disclosure of any such Excluded Information in connection with this
transaction. The Sellers further agree that CEFL shall not be
obligated to refrain from using any such Excluded Information in connection
with
this transaction, and that the parties shall not have any liability to each
other with respect to any such non-disclosure or use of Excluded Information
in
connection with this transaction or any related transaction.
11. Representations
and Warranties of CEFL. CEFL represents and warrants that (a) it
has the power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, (b) the execution, delivery
and
performance by it of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly authorized, (c) this Agreement,
when delivered in accordance with the terms hereof, assuming the due execution
and delivery of this Agreement by the Sellers and the Company, shall have
been duly executed and delivered by it and shall be a valid and binding
obligation of it, enforceable against it in accordance with its terms, except
to
the extent that enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and to general equitable principles, and (d) no
action, consent or approval of, registration or filing with or any other
action
by any governmental authority, regulatory authority, self-regulatory authority,
exchange or clearing
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organization
or any other third party will be required to be made, taken or obtained by
it
for the purchase and assumption by, or transfer to, it of the Portfolio pursuant
to this Agreement on the terms contained herein, other than those that have
already been properly made, taken or obtained by CEFL.
12. Representations
and Warranties of the Sellers and the Company. Each
of the Sellers and the Company represents and warrants that (a) it has the
power
and authority to execute and deliver this Agreement and, to consummate the
transactions contemplated hereby, (b) the execution, delivery and performance
by
it of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly authorized, (c) this Agreement, when delivered in
accordance with the terms hereof, assuming the due execution and delivery
of
this Agreement by CEFL, shall have been duly executed and delivered by it
and
shall be a valid and binding obligation of it, enforceable against it in
accordance with its terms, except to the extent that enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium
or
similar laws affecting the enforcement of creditors’ rights generally and to
general equitable principles, (d) the consummation of the Transfer as provided
herein will transfer to CEFL all of the right, title and interest in the
Positions and the Portfolio free and clear of any liens, claims, encumbrances
or
rights of third parties of any kind, (e) the Transfer is being made by the
Sellers in compliance with all applicable laws and regulations, and (f) no
action, consent or approval of, registration or filing with or any other
action
by any governmental authority, regulatory authority, self-regulatory authority,
exchange or clearing organization or any other third party will be required
to
be made, taken or obtained by it for the sale, transfer, assignment and
conveyance by the Sellers of the Portfolio to CEFL pursuant to this Agreement
on
the terms contained herein, other than those that have already been properly
made, taken or obtained by the Sellers or the Company.
13. No
Third Party Beneficiaries. No person other than the parties
hereto shall have any rights with respect to the matters contemplated hereby
and
there are no third party beneficiaries hereto, except for the Citadel
Indemnitees (as hereinafter defined) pursuant to Section 14.
14. Indemnity. (a)
The Sellers and the Company, jointly and severally, shall indemnify and defend
each of CEFL, Citadel and each of their respective officers, directors,
employees, agents and affiliates (the “Citadel Indemnitees”),
to the fullest extent lawful, from and against any and all actions, suits,
claims, proceedings, damages, losses, deficiencies, liabilities, penalties,
fines, interest, costs, damages, judgments, amounts paid in settlement and
expenses (including, without limitation, the cost and expenses of any
litigations, actions, judgments and settlements related thereto, and the
reasonable costs and expenses of attorneys and accountants incurred in the
investigation or defense thereof or the enforcement of rights hereunder)
(collectively, “Losses”) arising out of or resulting from (i)
any breach of any representation or warranty made by the Sellers or the Company
under this Agreement, (ii) any breach by the Sellers or the Company of any
covenant, obligation or other agreement contained in this Agreement (including,
without limitation, Sections 6 and 12 hereof), or (iii) any third party or
governmental claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of or otherwise relating
to the transactions contemplated by this Agreement (including, but not limited
to, any such claim, action, suit,
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proceeding
or investigation initiated by or on behalf of any investors, clients or
customers of the Sellers or the Company). Notwithstanding anything to the
contrary set forth in this Agreement, (x) except for fraud, the aggregate
amount
of Losses for which the Company and Sellers are obligated to indemnify the
Citadel Indemnitees in respect of claims under Section 14(a)(i) shall not
exceed
$800,000,000 and (y) CEFL and Citadel agree, prior to asserting any
indemnification claims hereunder against the Bank, to use commercially
reasonable efforts to seek satisfaction of such indemnification claim from
the
Company (it being understood that the use of such reasonably commercial efforts
shall not waive any rights of CEFL and Citadel against the Bank or limit
any
obligations and liabilities of the Bank hereunder).
(b)
CEFL
and Citadel jointly and severally, shall indemnify and defend each of the
Sellers, the Company and each of their respective officers, directors,
employees, agents and affiliates (the “Company Indemnitees”),
to the fullest extent lawful, from and against any and all Losses arising
out of
or resulting from (i) any breach of any representation or warranty made by
CEFL
under this Agreement or (ii) any breach by CEFL of any covenant, obligation
or
other agreement contained in this Agreement. Notwithstanding anything
to the contrary set forth in this Agreement, except for fraud, the aggregate
amount of Losses for which CEFL and Citadel are obligated to indemnify the
Company Indemnitees in respect of claims under Section 14(b)(i) shall not
exceed
$800,000,000.
15. Securities
Contract. This Agreement is intended to be a “securities
contract” within the meaning of section 741 of title 11 of the United States
Code. It is also intended to be a "qualified financial contract"
within the meaning of section 1821(e)(8) of title 12 of the United States
Code
and the Company agrees to maintain this Agreement and the evidence of authority
in its official books and records.
16. Choice
of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made
and to be performed within such State without regard to principles of conflict
of laws.
17. Notice. Except
as provided elsewhere herein, notices hereunder shall be sent by express
courier, e-mail, or hand delivery to the addresses indicated below:
Citadel
Equity Fund Ltd.
c/o
Citadel Limited Partnership
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with
a copy (which shall not constitute
notice) to:
Attention: Legal
Department
E-Mail:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Wire
instructions:
Bank
of
New York
7
ABA:
▇▇▇▇▇▇▇▇▇
Citadel
Equity Fund
Account:
8900472545
DTC:
DTC
ID: 0775
a/c: CEFL
E*TRADE
Bank
Attn:
Back
Office Services, 15th Floor
Ballston
Tower
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
E*TRADE
Global Asset Management, Inc.
Attn:
Back
Office Services, 15th Floor
Ballston
Tower
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
E*TRADE
Financial Corporation
▇▇▇
▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attention:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
Chief Administrative Officer &
General Counsel
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with
a
copy (which shall not constitute notice) to:
▇▇▇▇▇
▇▇▇▇
& ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Attention:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇.
▇▇▇▇▇▇▇
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Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Wire
instructions:
E*TRADE
Bank:
ABA
#
▇▇▇▇▇▇▇▇▇
ETRADE
BANK
Acct
#
▇▇▇▇▇▇▇
Acct
Name:
E*TRADE Bank
E*TRADE
Global Asset Management, Inc.:
8
ABA
#
▇▇▇▇▇▇▇▇▇
ETRADE
BANK
Acct
#
2000020145
Acct
Name:
ETGAM
DTC:
E*TRADE
Bank:
Agent
Bank: 48614
Inst.
ID: 48614
DTC
Part.
#: 2225
MidWest
ID: TBCM
Telebank
Sub Account: TBNK
Mortgage
Sub Account:
ETMG
E*TRADE
Global Asset Management, Inc.:
Agent
Bank: 48609
Inst.
ID: 48609
DTC
Part.
#: 2226
18. Consent
to Jurisdiction; Waiver of Jury Trial. Any judicial proceeding
brought against any party regarding any dispute arising out of this Agreement
or
any matter related hereto may be brought in the courts of the State of New
York,
or in the United States District Court for the Southern District of New York,
in
each case located in the Borough of Manhattan, and, by execution and delivery
of
this Agreement, each such party accepts the exclusive jurisdiction of such
courts solely for such purpose. Each party hereto hereby agrees that
service of any process, summons, notice or document by U.S. registered mail
addressed to CEFL, the Sellers or the Company at the addresses listed above
or
at such other address as each party may provide to the others from time to
time,
as applicable, shall be effective service of process for any action, suit
or
proceeding brought against such addressee in any such court. Each
party hereto hereby irrevocably and unconditionally waives any objection
to the
laying of venue of any such suit, action or proceeding brought in any such
court
and any claim that any such suit, action or proceeding brought in any such
court
has been brought in an inconvenient forum. Each party hereto agrees
that a final judgment relating to it in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon it and may
be
enforced in any other courts to whose jurisdiction such party is or may be
subject, by suit upon each judgment. EACH PARTY HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING
TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SUCH
PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
19. Severability. In
the event that any provision or portion of this Agreement is determined to
be
invalid, illegal or unenforceable for any reason, in whole or in part, the
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remaining
provisions of this Agreement shall be unaffected thereby and shall remain
in
full force and effect to the fullest extent permitted by applicable
law.
20. Entire
Agreement. This Agreement (including the Exhibits) and the
Investment Agreement, constitutes the entire agreement between the parties
hereto relating to the subject matter contained herein, and supersedes and
replaces all prior writings, discussions and rights relating hereto and thereto;
and no obligation of any kind relating hereto is assumed by or implied against
any party hereto except for those obligations expressly stated
herein. This Agreement may only be amended by a written
instrument signed by the parties hereto.
21. Survival. The
representations and warranties contained in this Agreement shall survive
the
conclusion of the Transfer.
22. Counterparts. This
Agreement may be executed in counterparts (including by facsimile or similar
means of electronic transmission), and any party hereto may execute any such
counterpart, each of which when executed and delivered shall be deemed to
be an
original and all of which counterparts taken together shall constitute but
one
and the same instrument.
* * * * *
10
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto or
by
their respective duly authorized officers, all as of the date first above
written.
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Citadel
Equity Fund Ltd.
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||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
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Name:
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▇▇▇▇ ▇▇▇▇▇▇ | |||
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Title:
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Senior Managing Director and General Counsel | |||
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E*TRADE
Bank
|
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
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Name:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
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Title:
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President and COO | |||
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E*TRADE
Global Asset Management, Inc.
|
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
|
Name:
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
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Title:
|
President and CEO | |||
|
E*TRADE
Financial Corporation
|
||||
| By: | /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
|
Name:
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R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
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Title:
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President and COO | |||