EXHIBIT 99.1
SETTLEMENT AND RELEASE AGREEMENT
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SETTLEMENT AND RELEASE AGREEMENT (this "Agreement"), dated April 30,
2003, by and between Xxxxxx Fund I, L.P., a Texas limited partnership
("Xxxxxx"), and General Electric Capital Corporation, a Delaware corporation
("GE Capital" and together with Xxxxxx, the "Parties").
RECITALS
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WHEREAS, in connection with the purchase by Xxxxxx from GECFS, Inc.,
a Nevada corporation ("GECFS"), of 900,000 shares of the Class A Common Stock,
$0.01 par value (the "Xxxx Shares"), of Xxxx Corp., a Delaware corporation
("Xxxx"), Xxxxxx issued to GECFS that certain Promissory Note, dated of May 20,
1998, in the principal amount of $11,500,000 (the "Promissory Note");
WHEREAS, pursuant to the terms of that certain Stock Pledge
Agreement, dated as of May 20, 1998 (the "Stock Pledge Agreement"), made by
Xxxxxx in favor of GECFS, Xxxxxx (i) pledged to GECFS the Xxxx Shares as
evidenced by Xxxx Class A Common Stock Certificate No. 4 (the "Certificate") and
(b) delivered such Certificate to GECFS as collateral security under the Stock
Pledge Agreement.
WHEREAS, GECFS was subsequently merged with and into GE Capital and
its rights under the Promissory Note and Stock Pledge Agreement were
transferred, by operation of law, to GE Capital;
WHEREAS, the Certificate has been lost or misplaced by the GE
Capital, or stolen or destroyed;
WHEREAS, Xxxxxx is unable to meet its obligations under the
Promissory Note; and
WHEREAS, the Parties desire to resolve and settle all amounts due and
owing between them arising out of, or in any way related to, the Promissory
Note.
NOW THEREFORE, IT IS HEREBY AGREED, by and among the undersigned and
in consideration of the promises and releases contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, as follows:
AGREEMENT
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Section 1. Recitals. The recitals set forth above are incorporated by
reference and are explicitly made a part of this Agreement.
Section 2. Transfer of Xxxx Shares. On or before the Effective Date
(as defined below), Xxxxxx shall cause Xxxx to deliver to GE Capital a
replacement Certificate representing the Xxxx Shares (the "Replacement
Certificate") issued in the name of GE Capital, to be held in escrow by GE
Capital until the Effective Date. Delivery of such Replacement Certificate shall
be made by overnight courier to the offices of GE Capital at its office
indicated in Section 9 below. On the Effective Date, GE Capital shall accept, in
full and final satisfaction of any and all indebtedness and obligations released
herein, the Xxxx Shares.
Section 3. Ownership and Transfer of Shares. Xxxxxx represents and
warrants to GE Capital that, as of the Effective Date, (i) Xxxxxx is the record
and beneficial owner of the Xxxx Shares, free and clear of any and all liens
(other than the liens granted to GE Capital) and (ii) Xxxxxx has the power and
authority to sell, transfer, assign and deliver the Xxxx Shares as provided in
this Agreement, and such delivery will convey to GE Capital good and marketable
title to the Xxxx Shares, free and clear of any and all liens.
Section 4. Releases. On the Effective Date (as defined below):
a. in consideration for the Replacement Certificate representing the
Xxxx Shares having been delivered by to GE Capital pursuant to
the terms and conditions of this Agreement, GE Capital shall be
deemed to have released and forever discharged Xxxxxx and its
parents, affiliates, subsidiaries, divisions, predecessors,
successors, agents, assigns, representatives, officers,
directors, consultants, principals, and employees from and
against any and all past, present, and future claims, rights,
actions, litigations, arbitrations, complaints, demands, causes
of action, attorneys' fees, costs or liabilities, of any nature
whatsoever, known or unknown, based on, arising out of, or in any
way relating or pertaining to the Promissory Note (collectively,
the "Claims"); and
b. in consideration for the Replacement Certificate representing the
Xxxx Shares having been delivered to GE Capital pursuant to the
terms and conditions of this Agreement, Xxxxxx shall be deemed to
have released and forever discharged GE Capital and its parents,
affiliates, subsidiaries, divisions, predecessors, successors,
agents, assigns, representatives, officers, directors,
consultants, principals, and employees from and against any and
all Claims.
Section 5. Waivers. Xxxxxx waives all rights under Sections 9-611 and
9-623 of the Uniform Commercial Code.
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Section 6. Effectiveness of Agreement. This Agreement shall be
effective immediately upon the date (the "Effective Date") when (i) this
Agreement shall be fully executed by the Parties and (ii) GE Capital shall have
received an opinion from Xxxxxx, Xxxx & Xxxxxxxx LLP in form and substance
satisfactory to GE Capital. Xxxxxx shall cause Xxxx to deliver to GE Capital the
Replacement Certificate representing the Xxxx Shares as soon as practicable
after the date hereof, and in any event, prior to May 6, 2003. Upon receipt of
the Replacement Certificate representing the Xxxx Shares, GE Capital shall
execute and deliver to Xxxxxx an Acknowledgement of Receipt in the form attached
hereto as Exhibit A and the original Promissory Note.
Section 7. Amendments. This Agreement may not be amended or modified
except by a written agreement executed by the party to be charged with the
amendment.
Section 8. Entire Agreement. 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. No party shall be liable or bound to any other
party for any prior representation promise or warranty (oral or otherwise)
except for those that may be expressly set forth in this Agreement.
Section 9. Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. Copies of executed counterparts transmitted by
telecopy or other electronic transmission service shall be considered original
executed counterparts, provided receipt of copies of such counterparts is
confirmed.
Section 10. Notices. All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been given when sent by facsimile, overnight delivery or registered or
certified mail (postage prepaid), or delivered in person, in each case to the
appropriate address and facsimile numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties).
If to Xxxxxx, to:
Xxxxxx Fund I, L.P.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Mas
Telecopy: (000) 000-0000
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If to GE Capital, to:
General Electric Capital Corporation
000 Xxxxxxx 0, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Account Manager
Telecopy: (000) 000-000-0000
with a copy to:
General Electric Capital Corporation
000 Xxxxxxx 0, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxx, Esq.
Telecopy: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Simeon Gold, Esq.
Telecopy: (000) 000-0000
Section 11. Binding Agreement. This Agreement is binding on the
Parties, their predecessors, successors, parents, subsidiaries, assignees,
agents, directors, officers, employees, and shareholders. Each of the
signatories of this Agreement represents and warrants that he or she is
authorized to execute this Agreement on behalf of his or her respective party
and by such signature to bind that party to this Agreement.
Section 12. Severability. If any part or provision of this Agreement
is determined to be invalid or unenforceable under applicable law by a court of
competent jurisdiction, that part or provision shall be ineffective to the
extent of such invalidity or unenforceability only, without in any way affecting
the remaining parts of said part or provision or the remaining parts or
provisions of this Agreement.
Section 13. Governing Law; WAIVER OF JURY TRIAL. 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. XXXXXX AND GE
CAPITAL 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.
XXXXXX FUND I, L.P.
By: Xxxxxx Fund, Inc., as general partner
By: /s/ Xxxxx Mas
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Name: Xxxxx Mas
Title: President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
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EXHIBIT A
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ACKNOWLEDGEMENT OF RECEIPT
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General Electric Capital Corporation, a Delaware corporation ("GE
Capital"), hereby acknowledges receipt of Certificate No. __, representing
900,000 shares of the Class A Common Stock, $0.01 par value, of Xxxx Corp.,
issued in the name of GE Capital.
Dated: April __, 2003
GENERAL ELECTRIC CAPITAL CORPORATION.
By:
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Name:
Title:
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