SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
(Amendment No. 13)
Under the Securities Exchange Act of 1934
COMMERCIAL FEDERAL CORPORATION
(Name of Issuer)
Common Stock, $0.01 par value
(Title of Class of Securities)
201647104
(CUSIP Number)
Robin R. Glackin
President
CAI Corporation
12770 Coit Road, Suite 902
Dallas, Texas 75251
(214) 991-7707
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to
Fred B. White III, Esq
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
(212) 735-2144
August 21, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a
statement on Schedule 13G to report the acquisition which
is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(b)(3) or (4), check the
following box: [ ]
Check the following box if a fee is being paid
with this statement: [ ]
The undersigned hereby amend the Schedule 13D
filing made on February 13, 1992 (the "Schedule 13D")
pursuant to Rule 13d-2(a) of Regulation 13D-G of the
General Rules and Regulations under the Securities Ex-
change Act of 1934, as amended (the "1934 Act"), as
thereafter amended by Amendments No. 1 through 12 thereto
(the "Amended Schedule 13D"), with regard to the Common
Stock of Commercial Federal Corporation ("CFC") by sup-
plementing Items 4, 5 and 6 of the Amended Schedule 13D
as set forth below (terms defined in previous Amendments
and not defined herein are used herein with the same
meaning).
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby supplemented and amended by
adding thereto the following:
On August 21, 1996, CAI sold to CFC all
1,250,100 shares of CFC Common Stock owned by CAI (the
"Shares") pursuant to a Stock Purchase Agreement, dated
August 21, 1996 (the "Stock Purchase Agreement"), by and
among CAI, CFC, Mr. Robin R. Glackin, Mr. Steven M. Ellis
and Mr. Byron A. Lax. Following such sale, CAI does not
own any securities of CFC, and CAI does not intend to
file any further amendments to this Amended Schedule 13D.
Messrs. Glackin, Ellis and Lax each own one-third of the
outstanding shares of common stock of CAI. A copy of the
Stock Purchase Agreement is attached hereto as Exhibit
17. For a description of certain terms of the Stock
Purchase Agreement, see Items 5 and 6 below.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5(c) is hereby supplemented and amended by
adding thereto the following:
On August 21, 1996, pursuant to the Stock
Purchase Agreement, CAI sold the Shares to CFC for con-
sideration consisting of $28,227,162 in cash and the
surrender of a warrant, held by CFC, to purchase shares
of common stock of CAI. CFC has valued such warrant at
approximately $20.7 million, resulting in an aggregate
consideration of approximately $48.9 million, or approxi-
mately $39.11 per share.
Item 5(e) is hereby supplemented and amended to
read in its entirety as follows:
(e) CAI and each of Messrs. Glackin, Ellis and
Lax ceased to be the beneficial owner of more than five
percent of the CFC Common Stock on August 21, 1996.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE
ISSUER.
In addition to the sale of the Shares, pursuant
to the Stock Purchase Agreement, among other things, (a)
each of CAI and each of Messrs. Glackin, Ellis and Lax
agreed to certain standstill provisions in respect of CFC
for a period of five years, including without limitation,
covenants that during such period each such party will
not (i) acquire any securities of CFC or any of its
subsidiaries, (ii) seek or propose any merger or other
business combination involving CFC or any of its subsid-
iaries or (iii) participate in any proxy solicitation
with respect to any securities of CFC or any of its
subsidiaries, (b) Messrs. Glackin and Ellis resigned from
the Board of Directors of CFC and (c) CFC reimbursed
certain expenses incurred by CAI.
The foregoing description of the terms of the
Stock Purchase Agreement does not purport to be complete
and is qualified in its entirety by reference to the
Stock Purchase Agreement, a copy of which is attached
hereto as Exhibit 17.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following Exhibit is filed herewith:
17. Stock Purchase Agreement, dated as of
August 21, 1996, by and among CAI Corpora-
tion, Commercial Federal Corporation, Mr.
Robin R. Glackin, Mr. Steven M. Ellis and
Mr. Byron A. Lax.
SIGNATURES AND POWER OF ATTORNEY
After reasonable inquiry and to the best of the
undersigneds' knowledge and belief, the undersigned
certify that the information set forth in this statement
is true, complete and correct.
Date: August 26, 1996
STEVEN M. ELLIS *
ROBIN R. GLACKIN *
BYRON A. LAX *
By: /s/ ROBIN R. GLACKIN
* By Robin R. Glackin, attorney-
in-fact, pursuant to power of
attorney filed as part of Amend-
ment No. 7 to this statement.
Date: August 26, 1996
CAI CORPORATION
By: /s/ ROBIN R. GLACKIN
Robin R. Glackin
President
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this
"Agreement"), is dated as of August 21, 1996, by and
among CAI Corporation, a Delaware corporation ("CAI"),
Commercial Federal Corporation, a Nebraska corporation
("CFC"), Mr. Robin R. Glackin ("Glackin"), Mr. Steven M.
Ellis ("Ellis") and Mr. Byron A. Lax ("Lax"). Each of
Glackin, Ellis and Lax is sometimes hereinafter referred
to as a "Shareholder", and collectively as the
"Shareholders".
WHEREAS, CAI owns an aggregate of 1,250,100
shares of common stock, par value $0.01 per share (the
"CFC Common Stock"), of CFC; and
WHEREAS, CFC owns the Warrant to Purchase 99
Shares of Common Stock (Par Value $.01 Per Share) of CAI
Corporation, dated December 30, 1989 (the "Warrant"),
which entitles the holder thereof to purchase, upon
exercise thereof, 99 shares of non-voting common stock of
CAI; and
WHEREAS, CFC desires to purchase from CAI the
shares of CFC Common Stock owned by CAI; and
WHEREAS, CAI wishes to acquire from CFC, and
cancel, the Warrant; and
WHEREAS, the parties desire to make certain
representations, warranties and agreements in connection
with the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the mutual
covenants, representations, warranties and agreements
contained herein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
SALE AND TRANSFER OF
COMMON STOCK; RETURN OF WARRANT
1.1 Sale and Transfer of Common Stock. Upon
the basis of the representations, warranties and
agreements herein contained, and subject to the terms and
conditions hereof, CAI agrees to sell, transfer and
assign to CFC 1,250,100 shares of CFC Common Stock (such
shares of CFC Common Stock are hereinafter referred to as
the "Shares"), in exchange for (i) a payment of
$28,227,162 (the "Cash Consideration"), (ii) the transfer
and assignment to CAI of the Warrant (in whole and not in
part), unexercised and free and clear of any Liens (as
defined herein), (iii) a payment of $2,200,000 in
reimbursement of certain costs and expenses incurred by
CAI in connection with its ownership of the Shares,
including costs and expenses incurred in connection with
the proxy contest of 1995 (the "Expense Reimbursement
Payment"), and (iv) a payment of $62,500 as an agreed
upon amount in lieu of the pro rata portion of the
dividend on the Shares for CFC's current fiscal quarter
(the "Dividend Amount").
1.2 Return of Warrant; Payment of
Consideration. Upon the basis of the representations,
warranties and agreements herein contained, and subject
to the terms and conditions hereof, CFC agrees to (i)
purchase and accept from CAI the Shares, (ii) transfer
and assign the Warrant (in whole and not in part),
unexercised and free and clear of any Liens, to CAI,
(iii) pay CAI the Cash Consideration, (iv) pay CAI the
Expense Reimbursement Payment and (v) pay CAI the
Dividend Amount.
1.3 Closing. The closing of the sale and
purchase of the Shares and the other transactions
contemplated hereby (the "Closing") shall take place in
Omaha, Nebraska on August 21, 1996, or at such other time
or place as the parties may mutually agree (the "Closing
Date").
1.4 Closing Deliveries. At the Closing, the
parties shall deliver the following documents, and take
the following actions, all of which deliveries and
actions shall be deemed to occur simultaneously and none
of which shall be effective until all have occurred:
(a) CFC shall deliver, or cause to be
delivered, to CAI (i) the Warrant (in whole and not in
part), duly endorsed, unexercised and free and clear of
any Liens, (ii) the Cash Consideration, the Expense
Reimbursement Payment and the Dividend Amount, in the
form of a cash payment of $30,489,662, by wire transfer
of immediately available same day funds in United States
dollars to an account designated in writing by CAI; and
(b) CAI shall deliver, or cause to be
delivered pursuant to book entry at DTC, to CFC 1,250,000
of the Shares and stock powers and certificate for 100 of
the Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CFC
CFC hereby represents and warrants to CAI and
the Shareholders as follows:
2.1 Corporate Organization. CFC is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Nebraska. CFC
has the corporate power and authority to own or lease all
of its properties and assets and to carry on its business
as it is now being conducted and is duly licensed or
qualified to do business in each jurisdiction in which
the nature of the business conducted by it or the
character or location of the properties and assets owned
or leased by it makes such licensing or qualification
necessary.
2.2 Authority; No Violation.
(a) CFC has full corporate power and
authority to execute and deliver this Agreement and the
other documents and instruments contemplated hereby and
to consummate the transactions contemplated hereby and
thereby. The execution and delivery by CFC of each of
this Agreement and the other documents and instruments
contemplated hereby and the consummation of the
transactions contemplated hereby and thereby have been
duly and validly approved by the Board of Directors of
CFC, and no other corporate proceedings on the part of
CFC are necessary to consummate the transactions
contemplated hereby and thereby. This Agreement has
been, and upon execution and delivery thereof by CFC,
each of the other documents and instruments contemplated
hereby will be, duly and validly executed and delivered
by CFC and (assuming due authorization, execution and
delivery by CAI) this Agreement constitutes, and upon
execution and delivery thereof by CFC, each of the other
documents and instruments contemplated hereby will
constitute, a valid and binding obligation of CFC
enforceable against CFC in accordance with its respective
terms.
(b) Neither the execution and delivery of
this Agreement or any other document or instrument
contemplated hereby by CFC nor the consummation by CFC of
the transactions contemplated hereby and thereby, nor
compliance by CFC with any of the terms or provisions
hereof or thereof, will (i) violate any provision of the
Articles of Incorporation, By-Laws or similar governing
documents of CFC, or (ii) (x) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ,
decree or injunction ("Law") applicable to CFC or any of
its properties or assets, or (y) violate, conflict with,
result in a breach of any provision of or the loss of any
benefit under, constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a
default) under, result in the termination of or a right
of termination or cancellation under, accelerate the
performance required by, or result in the creation of any
Lien upon any of the respective properties or assets of
CFC under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or
obligation to which CFC is a party, or by which it or any
of its properties or assets may be bound or affected.
2.3 Consents and Approvals. No consents or
approvals of, or filings or registrations with, any
court, administrative agency or commission or other
governmental authority or instrumentality (each a
"Governmental Authority") or with any third party are
necessary in connection with (a) the execution and
delivery by CFC of this Agreement and the other documents
and instruments contemplated hereby and (b) the
consummation by CFC of the transactions contemplated
hereby and thereby.
2.4 Title to Warrant. CFC has, and upon the
transfer of the Warrant to CAI in accordance with the
terms hereof, CAI will have, good, valid and marketable
title to the Warrant (in whole and not in part), free and
clear of any liens, charges, encumbrances, pledges,
options, trusts, voting trusts, restrictions, members or
shareholders' agreements, adverse rights or claims and
security interests whatsoever ("Liens"). Except for
this Agreement, CFC does not have and is not bound by any
outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for
the purchase, issuance, transfer or assignment of the
Warrant, any interest in the Warrant or the shares of
non-voting common stock of CAI purchasable upon exercise
of the Warrant. Without limiting the generality of the
foregoing, CFC is the Holder (as defined in the Warrant)
of the Warrant and there are no other Holders of the
Warrant.
2.5 Status of Warrant.
(a) CFC's election, pursuant to its
letter, dated August 13, 1996, to exercise the Warrant
has been effectively and irrevocably rescinded and
withdrawn for all purposes prior to the effectiveness of
such election, pursuant to the letter, dated August 14,
1996, a true, correct and complete copy of which is
attached hereto as Exhibit A.
(b) Neither CFC nor any other Holder
(including, without limitation any prior Holder) has
exercised, in whole or in part, the Warrant, and no
person or entity (other than CFC in its capacity as
Holder) has the right or power to exercise or cause the
exercise of the Warrant. Without limiting the generality
of the foregoing, neither CFC nor any of its
Representatives (as defined herein) has taken any action
which has caused (or which, with notice or the passage of
time, will cause) any shares of common stock or other
securities of CAI to become issuable or to be deemed to
have been issued or to have become issuable pursuant to
the Warrant for any reason.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CAI
CAI hereby represents and warrants to CFC as
follows:
3.1 Corporate Organization. CAI is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. CAI
has the corporate power and authority to own or lease all
of its properties and assets and to carry on its business
as it is now being conducted and is duly licensed or
qualified to do business in each jurisdiction in which
the nature of the business conducted by it or the
character or location of the properties and assets owned
or leased by it makes such licensing or qualification
necessary.
3.2 Authority; No Violation.
(a) CAI has full corporate power and
authority to execute and deliver this Agreement and the
other documents and instruments contemplated hereby and
to consummate the transactions contemplated hereby and
thereby. The execution and delivery by CAI of each of
this Agreement and the other documents and instruments
contemplated hereby and the consummation of the
transactions contemplated hereby and thereby have been
duly and validly approved by the Board of Directors of
CAI, and no other corporate proceedings on the part of
CAI are necessary to consummate the transactions
contemplated hereby and thereby. This Agreement has
been, and upon execution and delivery thereof by CAI,
each of the other documents and instruments contemplated
hereby will be, duly and validly executed and delivered
by CAI and (assuming due authorization, execution and
delivery by CFC) this Agreement constitutes, and upon
execution and delivery thereof by CAI, each of the other
documents and instruments contemplated hereby will
constitute, a valid and binding obligation of CAI
enforceable against CAI in accordance with its respective
terms.
(b) Neither the execution and delivery of
this Agreement or any other document or instrument
contemplated hereby by CAI nor the consummation by CAI of
the transactions contemplated hereby and thereby, nor
compliance by CAI with any of the terms or provisions
hereof or thereof, will (i) violate any provision of the
Certificate of Incorporation, By-laws or similar
governing documents of CAI, or (ii) (x) violate any Law
applicable to CAI or any of its properties or assets, or
(y) violate, conflict with, result in a breach of any
provision of or the loss of any benefit under, constitute
a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result
in the termination of or a right of termination or
cancellation under, accelerate the performance required
by, or result in the creation of any Lien upon any of the
respective properties or assets of CAI under, any of the
terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease,
agreement or other instrument or obligation to which CAI
is a party, or by which it or any of its properties or
assets may be bound or affected.
3.3 Consents and Approvals. No consents or
approvals of, or filings or registrations with, any
Governmental Authority or with any third party are
necessary in connection with (a) the execution and
delivery by CAI of this Agreement and the other documents
and instruments contemplated hereby and (b) the
consummation by CAI of the transactions contemplated
hereby and thereby.
3.4 Ownership of Shares.
(a) The Shares are the only shares of CFC
Common Stock beneficially owned by CAI.
(b) CAI has (except for a lien of
Comerica Bank on the Shares, which lien will be paid in
full from the Cash Consideration, and upon the transfer
of the Shares to CFC in accordance with the terms hereof
CFC will have, good, valid and marketable title to the
Shares, free and clear of any Liens. CAI does not have
and is not bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of
any character calling for the purchase, issuance,
transfer or assignment of the Shares or any interest in
the Shares other than the Comerica Lien.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
Each Shareholder hereby represents and warrants
on his own behalf to CFC as follows:
4.1 Execution and Delivery. This Agreement
has been, and upon execution and delivery thereof by such
Shareholder, each of the other documents and instruments
contemplated hereby will be, duly and validly executed
and delivered by such Shareholder and (assuming due
authorization, execution and delivery by CFC) this
Agreement constitutes, and upon execution and delivery
thereof by such Shareholder, each of the other documents
and instruments contemplated hereby will constitute, a
valid and binding obligation of such Shareholder,
enforceable against such Shareholder in accordance with
its respective terms.
4.2 Ownership of CFC Common Stock. Except for
the Shares, such Shareholder does not beneficially own
any shares of CFC Common Stock, other than, with respect
to Glackin and Ellis, shares of CFC Common Stock granted
to such Shareholder as part of his compensation as a
director of CFC.
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS
5.1 Forbearances. None of CFC, CAI nor any
Shareholder shall take any action that is intended or may
reasonably be expected to result in any of its
representations and warranties set forth in this
Agreement being or becoming untrue in any material
respect at any time prior to the Closing, except, in
every case, as required by Law.
5.2 No Exercise or Transfer of Warrant. CFC
hereby agrees that from and after the date of this
Agreement, it shall not (a) exercise, in whole or in
part, give any notice of exercise, in whole or in part,
or permit or cause any other person or entity to exercise
or give any notice of exercise, in whole or in part, of,
the Warrant or (b) except as contemplated hereby, sell,
assign, convey or otherwise transfer (including, without
limitation, through merger or consolidation or otherwise
by operation of law), in whole or in part, the Warrant or
any interest therein, including, without limitation, any
right to acquire, hold or exercise the Warrant or any
part thereof.
5.3 Standstill. CAI and each Shareholder
hereby agrees that during the Standstill Period (as
defined herein), it shall not, directly or indirectly,
(a) acquire, agree to acquire or make any proposal to
acquire, the securities of CFC or any of its
subsidiaries, any warrant or option to acquire any such
securities, any security convertible into or exchangeable
for any such securities or any other right to acquire any
such securities (except, in the case of Glackin and
Ellis, for securities of CFC or any of its subsidiaries
issued to such Shareholders as members of the Board of
Directors of CFC); (b) seek or propose any merger,
consolidation, business combination, tender or exchange
offer, sale or purchase of assets or securities,
dissolution, liquidation, restructuring, recapitalization
or similar transaction of or involving CFC or any of its
subsidiaries; (c) make, or in any way participate in, any
"solicitation" of proxies or consents within the meaning
of Rule 14a-1 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), with respect to any
securities of CFC or any of its subsidiaries, or seek to
advise or influence any person with respect to the voting
of any securities of CFC or any of its subsidiaries or
demand a copy of the stock ledger, list of stockholders
or any other books and records of CFC or any of its
subsidiaries (except in connection with the enforcement
of any claim of CAI or any such Shareholder under this
Agreement); (d) form, join or in any way participate in a
"group" (within the meaning of Section 13(d)(3) of the
Exchange Act), with respect to any securities of CFC or
any of its subsidiaries; (e) otherwise act, alone or in
concert with others, to seek to control or influence, in
any manner, the management, Board of Directors or
policies of CFC or any of its subsidiaries; (f) have any
discussions or enter into any arrangements,
understandings or agreements (whether written or oral)
with, or advise, finance, assist or encourage, any other
persons in connection with any of the foregoing; or make
any other investment in any other person that engages, or
offers or proposes to engage, in any of the foregoing;
provided, however, nothing contained herein shall be
deemed to prohibit CAI or any Shareholder from acquiring
any publicly-traded security (other than any security of
CFC or any of its subsidiaries); provided, further, that
if the issuer (or any Affiliate thereof) of such
publicly-traded security is engaged in any activity
otherwise prohibited under this Section 5.5, neither CAI
nor any of the Shareholders shall acquire a controlling
interest in such issuer or otherwise actively participate
in the business activities of such issuer. CAI and each
Shareholder also agrees during such period not to make
any proposal, statement or inquiry, or disclose any
intention, plan or arrangement (whether written or oral)
inconsistent with the foregoing, or request CFC, directly
or indirectly, to amend, waive or terminate any provision
of this Section 5.3 (including this sentence).
Notwithstanding anything in this Agreement to the
contrary, no restriction or prohibition set forth in this
Section 5.3 shall apply to either of Glackin or Ellis in
his capacity as a director of CFC or any of its
subsidiaries. For purposes of this Agreement, the
"Standstill Period" shall mean the period of 60 months
beginning on the date of this Agreement.
5.4 Indemnification. CFC hereby agrees to
indemnify, defend and hold harmless CAI and each
director, officer and Affiliate (as defined herein) of
CAI, including, without limitation, the Shareholders
(collectively, the "CAI Group"), from and against all
reasonable fees and expenses of counsel incurred by any
member of the CAI Group in connection with the defense of
any litigation brought against any member of the CAI
Group by or on behalf of any shareholder of CFC
challenging the validity of this Agreement or the
transactions contemplated hereby; provided, that the CAI
Group shall reasonably cooperate with CFC in the defense
or settlement of any such litigation. The
indemnification provided hereunder is not intended to
apply to the conduct of any member of the CAI Group
outside the scope of this Agreement or the transactions
contemplated hereby. Nothing contained herein shall be
deemed a waiver of any right of indemnification otherwise
available to any member of the CAI Group.
5.5 Waiver and Release.
(a) CFC, on behalf of itself and its
Representatives (as defined herein), for good and
sufficient consideration, the receipt and adequacy of
which are hereby acknowledged, hereby waives, releases
and forever discharges CAI and each Shareholder, and
their respective Representatives, from each and every
class, individual, or derivative claim, of any kind,
known or unknown, from the beginning of the world to the
Closing, which CFC or its Representatives had, now have,
or may hereafter have, in any capacity, against CAI, the
Shareholders and their respective Representatives, or any
of them, except for claims arising out of this Agreement.
For purposes of this Agreement, "Representatives" shall
mean, with respect to a particular party, its officers,
directors, employees, shareholders, Affiliates (as such
term is defined in Rule 12b-2 under the Exchange Act),
and their respective heirs, executors, successors, and
administrators.
(b) CAI and each Shareholder, on behalf
of itself and its respective Representatives, for good
and sufficient consideration, the receipt and adequacy of
which are hereby acknowledged, hereby waives, releases
and forever discharges CFC and its Representatives, from
each and every class, individual, or derivative claim, of
any kind, known or unknown, from the beginning of the
world to the Closing, which CAI, any Shareholder, or any
of their respective Representatives had, now have, or may
hereafter have, in any capacity, against CFC and its
Representatives, or any of them, except for claims
arising out of this Agreement, the Note or the Security
Agreement.
5.6 Public Announcements. Promptly following
execution of this Agreement, CFC shall issue a press
release in the form attached hereto as Exhibit B. CFC
shall not, and for so long as CFC shall be in compliance
with all of its obligations under the Note and the
Security Agreement, neither CAI nor any Shareholder
shall, (i) make any public statement that is contrary to
such press release or (ii) make any public or private
statement or issue any press release concerning the
subject matter hereof which contains derogatory
information or statements regarding the other parties
hereto or their Representatives.
5.7 Resignations. At or prior to payment in
full of the Note by CFC, each of Ellis and Glackin shall
deliver to CFC a duly executed letter of resignation from
the Board of Directors of CFC, substantially in the form
of Exhibit C attached hereto.
ARTICLE VI
MISCELLANEOUS
6.1 Survival of Representations, Warranties
and Agreements. Each of the representations, warranties,
covenants and agreements of the parties contained herein
shall survive the Closing indefinitely.
6.2 Expenses. Except as otherwise provided in
this Agreement, all costs and expenses incurred in
connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring
such expense.
6.3 Notices. All notices and communications
required or permitted hereunder shall be in writing, and
effective upon receipt, if delivered in person, sent by
certified or registered mail (postage prepaid), sent by a
nationally recognized overnight courier or sent by means
of facsimile with telephone confirmation or receipt as
follows (or at such other address or telecopy number for
a party as shall be specified by like notice):
To CFC: Commercial Federal Corporation
P.O. Box 1103
2120 South 72nd Street
Omaha, Nebraska 68101
Attention: William A. Fitzgerald
Telephone: (402) 554-9200
Telecopy: (402) 390-5256
To the CAI Corporation
Shareholders 12770 Coit Road, Suite 902
and CAI: Dallas, Texas 75251
Attention: Robin R. Glackin
Telephone: (214) 991-7716
Telecopy: (214) 991-8922
6.4 Modifications; Waivers. The provisions of
this Agreement may only be modified by written agreement
duly executed by all parties hereto. No waiver of any
provision of this Agreement shall be binding unless executed
in writing by granting the waiver. No waiver of any
provision of this Agreement shall be deemed or shall
constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing
waiver.
6.5 Headings. Captions and headings appearing in
this Agreement are for ease of reference only and do not
constitute a part of this Agreement.
6.6 GOVERNING LAW. THIS AGREEMENT AND ALL
QUESTIONS CONCERNING ITS VALIDITY, CONSTRUCTION OR
PERFORMANCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
6.7 Counterparts. This Agreement may be executed
in more than one counterpart, each of which shall be deemed
to be an original, but all of which together shall
constitute one and the same document.
6.8 Assignment; Successors and Assigns. This
Agreement may not be assigned by any party hereto without
the prior written consent of CAI, on behalf of itself and
the Shareholders, in the case of an assignment by CFC, and
CFC, in the case of an assignment by CAI or any Shareholder.
This Agreement shall inure to the benefit of, be binding
upon, and be enforceable by and against the parties and
their respective successors and permitted assigns.
6.9 Entire Agreement. This Agreement constitutes
the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among or between the
parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this
Agreement or caused this Agreement to be executed and
delivered by their respective officers or representatives
thereunto duly authorized, in each case, as of the date
first indicated above.
COMMERCIAL FEDERAL CORPORATION
By:/s/ William A. Fitzgerald
William A. Fitzgerald
Chairman of the Board and
Chief Executive Officer
CAI CORPORATION
By:/s/ Steven M. Ellis
Steven M. Ellis
Senior Vice President
/s/ Robin R. Glackin
Robin R. Glackin
/s/ Steven M. Ellis
Steven M. Ellis
/s/ Byron A. Lax
Byron A. Lax
Exhibit A
[August 14th Letter]
Exhibit B
[Press Release]
Exhibit C
[Form of Letter of Resignation]
