THAT A REMEDY AT
LAW WOULD BE ADEQUATE AND THAT THE PARTIES HERETO, IN ADDITION TO ANY OTHER
REMEDY TO WHICH THEY MAY BE ENTITLED AT LAW OR IN EQUITY, SHALL BE ENTITLED TO
COMPEL SPECIFIC PERFORMANCE OF THIS AGREEMENT.
G.
AMENDMENTS.
THIS AGREEMENT MAY NOT BE AMENDED, MODIFIED OR
SUPPLEMENTED WITHOUT THE PRIOR WRITTEN CONSENT OF ALL THE PARTIES HERETO.
H.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL BUT ALL OF WHICH SHALL
CONSTITUTE ONE AND THE SAME AGREEMENT.
I.
GOVERNING LAW.
THIS AGREEMENT AND ALL DISPUTES OR CONTROVERSIES
ARISING HEREUNDER OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK (EXCLUDING PRINCIPLES OF CONFLICTS OF LAW THAT WOULD APPLY THE LAW OF
ANOTHER JURISDICTION).
J.
EXPENSES.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PARTIES TO
THIS AGREEMENT SHALL BEAR THEIR RESPECTIVE EXPENSES INCURRED IN CONNECTION WITH
THE PREPARATION, EXECUTION AND PERFORMANCE OF THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, ALL FEES AND
EXPENSES OF AGENTS, REPRESENTATIVES, COUNSEL AND ACCOUNTANTS.
(SIGNATURES ON FOLLOWING PAGE)
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
BCC EQUIPMENT LEASING CORPORATION
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
8
Draft
PURCHASE OPTION AGREEMENT
THIS PURCHASE OPTION AGREEMENT (this "Agreement") is dated as of
, 2004 by and between BCC EQUIPMENT LEASING CORPORATION, a
Delaware corporation (the "Seller"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (the "Buyer").
WHEREAS, the Seller is a partner in MDFC/Mitsui Leasing Partnership, a
California general partnership (the "Partnership");
WHEREAS, Seller and Mitsui Leasing (U.S.A.) Inc., a
corporation ("Mitsui"), are parties to that certain MDFC/Mitsui Leasing
Partnership General Partnership Agreement, dated as of March 31, 1995, between
MDFC Equipment Leasing Corporation and Mitsui (the "Partnership Agreement");
WHEREAS, Seller holds a partnership interest in the Partnership as referenced in
the Partnership Agreement;
WHEREAS, the Seller and the Buyer are among the parties to that certain Purchase
and Sale Agreement dated as of May
, 2004 (the "Purchase Agreement") (each
capitalized term used in this Agreement which is not defined herein shall have
the meaning ascribed to such term in the Purchase Agreement); and
WHEREAS, pursuant to the Purchase Agreement, the Seller has agreed to grant to
the Buyer the rights provided for under this Agreement as a condition precedent
to the Buyer's obligation to close under the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
IV.
PURCHASE OPTION
A.
PURCHASE OPTION.
THE SELLER HEREBY GRANTS TO THE BUYER THE RIGHT
TO PURCHASE FROM THE SELLER (THE "PURCHASE OPTION") ON THE PURCHASE DATE (AS
HEREINAFTER DEFINED) ALL (BUT NOT LESS THAN ALL) OF THE SELLER'S RIGHT, TITLE
AND INTEREST IN, TO AND UNDER A 1% PARTNERSHIP INTEREST IN THE PARTNERSHIP, AS
REFERENCED IN