EXHIBIT 99.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 30, 2003 (this "Agreement"), by
and between General Electric Capital Corporation, a Delaware corporation ("GE
Capital"), and Xxxx Corp., a Delaware corporation (the "Company").
WHEREAS, the GE Capital and the Company are parties to that certain
Amended and Restated Stockholders Agreement, dated as of March 25, 1998, among
Xxxxx Mas, Xxxx Xxxxxx Mas, GE Capital, GECFS, Inc., Xxxxx X. Xxxxxxxxxx, Xxxxxx
Fund I, L.P. and the Company (the "Stockholders Agreement"; capitalized terms
used herein and not defined shall have the meaning specified in the Stockholders
Agreement); and
WHEREAS, GE Capital has agreed with the Company to waive its voting
rights with respect to certain of the Equity Securities of the Company;
NOW, THEREFORE, IT IS HEREBY AGREED, by and between the undersigned
and in consideration of the promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, as follows:
1. Until the occurrence of any of the Specified Events (defined
below), GE Capital agrees, on behalf of itself and its affiliates, that, with
respect to any matter submitted to the stockholders of the Company for action at
a meeting or for action by written consent, GE Capital shall, and shall cause
its affiliates to, exercise voting rights only with respect to Equity Securities
of the Company aggregating fifteen percent (15%) of the outstanding Equity
Securities of the Company as of the record date for determining stockholders
entitled to take such action; it being understood and agreed that the foregoing
voting restrictions shall not be applicable to any unaffiliated third party
acquiring Equity Securities of the Company from GE Capital or any of its
affiliates.
2. Until the occurrence of either of the Specified Events described
in Sections 3(ii) or (iii) below, GE Capital waives its right, as the record and
beneficial owner of Class B Special Common Stock, par value $0.01 per share, of
the Company, to elect a director to the Company's board of directors.
3. For purposes of this Agreement, a "Specified Event" shall occur
if:
(i) any Person or group (as defined in the Exchange Act) (other than
GE Capital and the Mas Stockholders or a transferee of GE Capital) shall acquire
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the aggregate Equity Securities
of the Company and GE Capital shall notify the Company that the voting
restrictions in this Agreement are no longer applicable; or
(ii) none of GE Capital nor any of its affiliates shall be a lender
under or party to (x) that certain Loan and Security Agreement, dated as of
December 19, 2001 (as amended, modified or supplemented from time to time, the
"Loan Agreement"), among the Company, Xxxx Rental, Inc., the lenders party
thereto, Fleet Capital Corporation, as Agent, and GECC Capital Markets Group,
Inc., as Syndication Agent or (y) any refinancing or replacement of such Loan
Agreement; or
(iii) each of (x) that certain Indenture, dated as of May 28, 1998,
among the Company, Xxxx Rental, Inc., a Florida corporation ("Xxxx Rental"), and
State Street Bank, as Trustee, with respect to the Company 10 1/4% Senior
Subordinated Notes due 2008, as amended, modified or supplemented from time to
time and (y) that certain Indenture, dated as of December 9, 1998, among the
Company, Xxxx Rental, and State Street Bank, as Trustee, with respect to the
Company's 10 1/4% Senior Subordinated Notes due 2008, as amended, modified or
supplemented from time to time (together, the "Indentures") shall be amended to
provide that Senior Debt (as defined in the Indentures) does not exclude
Indebtedness (as defined in the Indentures) of the Company held by an Affiliate
(as defined in the Indentures) of the Company.
4. GE Capital hereby confirms that as of the date hereof, neither it
nor any of its affiliates presently intends to direct, cause the direction of,
influence or participate in the management and policies of the Company
5. This Agreement may be executed with counterpart signature pages or
in one or more counterparts, all of which shall be deemed one and the same
agreement, and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to all of the parties.
6. This Agreement constitutes the full and entire Agreement among the
parties with regard to the subject hereof, and supersedes all prior
representations, promises, or warranties (oral or otherwise) made by any party.
7. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to principles of
conflict of laws. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.
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IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed as of the date first written above.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
XXXX CORP.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
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