EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, (the "AGREEMENT"), dated as of March 25,
1998, between Xxxx Corp., a Delaware corporation (the "COMPANY"), and GECFS,
Inc., a Nevada corporation ("GECFS"). All capitalized terms used herein and not
otherwise defined have the meaning specified in Section 7 hereof.
1. BACKGROUND. The Company is a party to a certain Exchange Agreement,
which governs certain rights and obligations of the Company and GECFS. The
Company and GECFS desire to provide for registration rights relating to the
securities acquired by GECFS pursuant to the Exchange Agreement.
2. REGISTRATION RIGHTS.
2.1 INCIDENTAL (PIGGYBACK) REGISTRATION. If at any time, the Company
proposes to register any of its securities under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), for public offering and sale (other than
registrations with regard to acquisitions of employee stock options, employee
purchase plans or other employee benefit plans on Form S-8 under the Securities
Act or any successor form), the Company shall give notice to GECFS of its
intention to effect such a registration prior to the filing with the Securities
and Exchange Commission (the "SEC") of such registration statement. Upon written
request of GECFS, given within seven business days after receipt from the
Company of such notice, the Company shall use its best efforts to cause the
number of Registrable Securities then held by GECFS and referred to in such
request to be included in such registration statement; PROVIDED, HOWEVER, that
in the event that the offering pursuant to such registration statement shall be
underwritten and the underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
pursuant to this Section 2.1 exceeds the number of securities that can be sold
in the offering without adversely affecting the offering price or the marketing
of the Company's securities, the Company may first include in such registration
all securities the Company proposes to sell, and GECFS shall accept a reduction
(pro rata with any other holders of the Company's equity securities entitled to
register such securities on such registration statement whose registration
rights are not subordinate to GECFS'), on the basis of the proportion that the
market value (Based upon the proposed offering price of such securities or the
mid-point of the range of the proposed offering prices, if any, of such
securities) (the "MARKET VALUE") of each security holder's aggregate securities
requested to be registered bears to the Market Value of the aggregate amount of
all equity securities (other than those to be sold for the Company's account)
as to which registration is sought, in the number of securities to be included
in such registration, which reduction may, if necessary, be total. Nothing in
this Section 2.1 shall limit the Company's ability to withdraw, or temporarily
cease to seek effectiveness of, a registration statement it has filed either
before or after its effectiveness.
2.2 DEMAND REGISTRATION. (a) Except as provided in Section 2.2(b)
below, after the earlier of (i) December 29, 1998 or (ii) the completion by the
Company of an initial public offering under the Securities Act of any of its
securities pursuant to a registration
statement filed on Form S-1 or any successor form, upon the written request of
GECFS that the Company effect pursuant to this Agreement the registration of
Registrable Securities under the Securities Act (which requested shall specify
the Registrable Securities so requested to be registered, the Proposed amounts
thereof and the intended method of disposition by GECFS), the Company will, as
expeditiously as reasonably possible, use its best efforts to effect the
registration under the Securities Act of the Proposed Amount of Registrable
Securities, for disposition in accordance with the intended method of
disposition stated in such request; PROVIDED, HOWEVER, that (i) if in the good
faith judgment of the board of directors of the Company, such registration would
be detrimental to the Company and the board of directors of the Company
concludes, as a result, that it is in the best interests of the Company to defer
the filing of such registration statement at such time, and (ii) the Company
shall furnish to GECFS a certificated signed by an executive officer of the
Company that the board of directors of the Company has made such a determination
and that it is, therefore, necessary to defer the filing of such registration
statement, then the Company shall have the right to defer such filing for the
period during which such registration would be detrimental, provided that the
Company may not defer the filing for a period of more than 180 days after
receipt of the request of GECFS in the case of an underwritten public offering
or for more than 120 days if such method of disposition is not an underwritten
public offering. The Company shall be entitled to include in any registration
statement filed pursuant to this Section 2.2: (A) securities of the Company held
by any other security holder of the Company, and (B) in an underwritten public
offering, securities of the Company to be sold by the Company for its own
account, except as and to the extent that (X) in the written opinion of the
managing underwriter, which shall be an underwriter of nationally recognized
standing (if such method of disposition shall be an underwritten public
offering), such inclusion would materially and adversely affect the marketing of
the Registrable Securities to be sold by GECFS or (Y) in the written opinion of
an investment banker of nationally recognized standing jointly selected by GECFS
and the Company (if such method of disposition is not an underwritten public
offering), such inclusion would materially adversely affect the price at which
the Registrable Securities may be sold pursuant to the plan of distribution.
(b) The Company shall not be obligated to take any action to effect any
registration requested by GECFS pursuant to Section 2.2(a) hereof (i) after the
Company has effected two such registrations pursuant to this Agreement and each
such registration had been declared or ordered effective, (ii) during the period
starting with the date 30 days prior to the Company's estimate of the date of
filing of, and ending on a date 90 days after the effective date of, a Company
initiated registration, provided that the Company is using all reasonable
efforts to cause such registration statement to become effective, or (iii) for a
period of six months after the Company has effected one such registration
pursuant to this Agreement and such registration has been declared or ordered
effective, such six month period to commence on the date the registration
statement was declared or ordered effective.
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(c) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested pursuant to this Section 2.2 shall not be
deemed to have been effected (i) unless it has become effective, PROVIDED that a
registration that does not become effective after the Company has filed a
registration statement with respect thereto solely by reason of the refusal of
GECFS to proceed shall be deemed to have been effected by the Company at the
request of GECFS unless GECFS shall have elected to pay all Company Registration
Expenses in connection with such registration, (ii) if after it has become
effective such registration is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental agency or court for
any reason other than a misrepresentation or an omission by GECFS, or (iii) if
the conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied
other than by reason of some wrongful act or omission, or act or omission in bad
faith, by GECFS.
2.3 REGISTRATION PROCEDURES. Subject to the limitation set forth
elsewhere herein, if and whenever the Company is required by the provision of
this Agreement to use its best efforts to effect or cause the registration of
any Registrable Securities under the Securities Act as provided in this
Agreement, the Company will, as expeditiously as possible:
(a) in the case of a registration under Section 2.2 hereof, prepare and
file with the SEC (such filing to be made within 75 days after the initial
request by GECFS) a registration statement with respect to such Registrable
Securities on a form appropriate to permit GECFS to sell the Proposed Amount in
accordance with GECFS' intended method of distribution and use its best efforts
to cause such registration statement to become and remain effective;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for such period
as shall be requested by GECFS, which period shall not exceed six months and to
comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration statement
during such period;
(c) furnish to counsel for GECFS and each underwriter of the securities
being sold by GECFS, at least five days prior to the filing thereof, such number
of copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the Securities
Act, and such other documents, as such counsel may reasonable request, in
substantially the form in which they are proposed to be filed with the SEC, in
order to facilitate the public sale or other disposition of the Registrable
Securities owned by GECFS;
(d) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such
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jurisdictions in the United States as each Underwriter of the securities being
sold by GECFS shall reasonable request, and do any and all other acts and things
which may be necessary or advisable to enable GECFS and such underwriter to
consummate the disposition in such jurisdictions in the United States of such
Registrable Securities owned by GECFS, except that the Company shall not for any
purpose be required to qualify generally to do business as a foreign corporation
in any jurisdiction where, but for the requirements of this clause (d), it would
not be obligated to be so qualified, or subject itself to taxation in any such
jurisdiction;
(e) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities in the United States as may be necessary
to enable GECFS to consummate the disposition of such Registrable Securities;
(f) notify GECFS, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to GECFS and each underwriter a reasonable amount of copies
of a prospectus supplement or amendment so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to GECFS, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen months, beginning with the first day of the
Company's first calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act;
(h) enter into such agreements (including an underwriting agreement in
customary form) and take such other actions as GECFS shall reasonably request in
order to expedite or facilitate the disposition of such Registrable Securities;
(i) to use its best efforts to furnish to GECFS an opinion from the
Company's counsel and a "cold comfort" letter from the Company's independent
public accountant (in accordance with SAS 72), addressed to GECFS, in customary
form and covering such matters of the type customarily covered by such opinions
and "cold comfort" letters as GECFS shall reasonable request;
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(j) make available for inspection by GECFS, by any other underwriter
participating in any disposition to be effected pursuant to such registration
statement, and by any attorney, accountant or other agent retained by GECFS or
any such underwriter, all reasonably pertinent financial and other records,
reasonable pertinent corporate documents and properties of the Company, and
cause all of the Company's officers, directors, employees and the independent
public accountants who have audited its financial statements to supply all
information reasonably requested by GECFS or any such underwriter, attorney,
accountant or agent in connection with such registration statement; PROVIDED,
HOWEVER, that GECFS and each such representative of GECFS, underwriter,
attorney, accountant or agent must execute and deliver to the Company a
confidentiality agreement in form and substance reasonable acceptable to the
Company agreeing to keep any such information and records concerning the Company
confidential;
(k) permit GECFS to participate in the preparation of such registration
or comparable statement;
(l) at or prior to the effective date of the registration use
commercially reasonable efforts to (i) secure a CUSIP number for all Registrable
Securities, and (ii) cause the Registrable Securities to be listed on the New
York Stock Exchange, the American Stock Exchange or included for reporting on
the NASDAQ Stock Market, and cause the Registrable Securities to be listed on
each other national securities exchange, if any, on which any other class of the
Company's securities are then listed; and
(m) in the case of an underwritten offering, enable the Registrable
Securities to be in such denominations or such number of shares and registered
in such names as the underwriters may request at least two business days prior
to the sale of the Registrable Securities.
In the case of an underwritten offering, the underwriters shall be
selected by the Company and reasonable acceptable to GECFS.
GECFS shall, upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (f) above, forthwith
discontinue their disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until GECFS' receipt
of the copies of the supplemented or amended prospectus contemplated by said
subdivision and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
GECFS' possession of the prospectus covering such Registrable Securities current
at the time of receipt of such notice. In the event the Company shall give any
such notice, the period mentioned in subdivision (b) above shall be extended by
the number of days during the period from and including the date of the giving
of such notice to and including the date when GECFS shall have received the
copies of the supplemented or amended prospectus contemplated by subdivisions
(f) above.
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GECFS shall enter into such customary agreements as requested by the
Company in connection with the registration of securities as contemplated by
this Agreement.
GECFS shall furnish to the Company in writing such information and
documents regarding GECFS and the distribution of such securities as may be
required to be disclosed in the registration statement in question by the rules
and regulations under the Securities Act or under any other applicable
securities or blue sky laws of the jurisdictions referred to in Section 2.3(d)
hereof.
If any such registration or comparable statement refers to GECFS by
name or otherwise as the holder of any securities of the Company then GECFS
shall have the right to require (i) the insertion therein of language, in form
and substance satisfactory to GECFS and presented to the Company in writing, to
the effect that the holding by GECFS of such securities is not to be construed
as a recommendation by GECFS of the investment quality of the Company's
securities covered thereby and that such holding does not imply that GECFS will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to GECFS by name or otherwise is not required by
the Securities Act or any similar federal statute then in force, the deletion of
reference to GECFS.
3. REGISTRATION EXPENSES. In connection with any registration of
Registrable Securities pursuant to this Agreement the Company will, whether or
not any registration pursuant to this Agreement shall become effective, from
time to time promptly upon receipt of bills or invoices relating thereto, pay
all expenses (other than Selling Expenses) incident to its performance of or
compliance with this Agreement (the "COMPANY REGISTRATION EXPENSES"), including
without limitation all registration, filing and NASD fees, fees and expenses of
compliance with securities of blue sky laws, word processing, duplicating and
printing expenses, messenger and delivery expenses, and fees and disbursements
of counsel for the Company and all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and other Persons retained
by the Company; PROVIDED, HOWEVER, that in all events, GECFS shall be
responsible for the fees and expenses of its counsel and its accountants. GECFS
shall also be responsible for all Selling Expenses.
4. INDEMNIFICATION. (a) The Company will, and hereby does, indemnify,
to the extent permitted by law, GECFS, their officers and directors, if any, and
each Person, if any, who controls GECFS within the meaning of Section 15 of the
Securities Act, against all losses, claims, damages, liabilities (or proceedings
in respect thereof) and expenses under the Securities Act, joint or several,
caused by an untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus (and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities (or proceedings in respect thereof) or
expenses are
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caused by any untrue statement or alleged untrue statement made in reliance on
or in conformity with any information furnished in writing to the Company by
GECFS or any participating underwriter expressly for use therein. If the
offering pursuant to any registration statement provided for under this
Agreement is made through underwriters, the Company agrees to enter into any
underwriting agreement in customary form with such underwriters and to indemnify
such underwriters, their officers and directors, if any, and each Person, if
any, who controls such underwriters within the meaning of Section 15 of the
Securities Act to the same extent as hereinbefore provided with respect to the
indemnification of GECFS, their officers and directors, if any, and each Person,
if any, who controls GECFS within the meaning of Section 15 of the Securities
Act.
(b) If for any reason the indemnity under Section 4(a) in unavailable,
then the Company shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the indemnified party on the other or (ii)
if the allocation provided by subdivision (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative fault of by the Company on the one hand and the indemnified party on
the other but also the relative benefits received by the Company and the
indemnified party as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(c) GECFS will, and hereby does, indemnify, to the extent permitted by
law, the Company, and its officers and directors, if any, and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, against all losses, claims, damages, liabilities (or proceedings in respect
thereof) and expenses under the Securities Act, joint or several, caused by any
untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus (and as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading but only to the extent that such losses,
claims, damages, liabilities (or proceedings in respect thereof) or expensed are
caused by any untrue statement or alleged untrue statement made in reliance on
or in conformity with any information furnished to the Company by GECFS. If the
offering pursuant to any registration statement provided for under this
Agreement is made through underwriters, GECFS agrees to enter into an
underwriting agreement in customary form with such underwriters and to indemnify
such underwriters, their officers and directors, if any, and each Person who
controls such underwriters within the meaning of Section 15 of the Securities
Act to the same extent as herinbefore provided with respect to the
indemnification of the
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Company, its officers and directors, if any, and each person, if any,
who controls GECFS within the meaning of Section 15 of the Securities Act.
(d) If for any reason the indemnity under Section 4(a) or (c) is
unavailable, then the Company and GECFS shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative fault of the parties or (ii) if the allocation provided by subdivision
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault of the parties but also the
relative benefits received by the parties as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) GECFS and the Company shall make payments of all amounts required
to be made pursuant to the foregoing provisions of this Section 4 to or for the
account of the indemnified party from time to time promptly upon the receipt of
bills or invoices relating thereto or when otherwise due and payable.
5. LIMITATIONS ON SALE OR DISTRIBUTION OF SECURITIES. If a registration
under this Agreement shall be in connection with an underwritten public offering
of securities for the Company's or any other security holder's account (other
than GECFS), GECFS shall be deemed to have agreed by acquisition of such
Registrable Securities not to effect any public sale or distribution, including
any sale pursuant to Rule 144 under the Securities Act, of any Registrable
Securities, during such period prior and subsequent to the commencement of the
offering of securities pursuant to such registration statement as may be
reasonable requested by the underwriters thereof, and in all cases to otherwise
comply with all applicable rules under the Securities Act and the Exchange Act,
including, without limitation, Regulation M under the Exchange Act or similar
rules thereafter adopted by the SEC.
6. REGISTRATION RIGHTS TO OTHERS. The rights of GECFS hereunder shall
be on a par, pro rata to share holdings, with those granted to the Mas
Shareholders under the Amended and Restated Stockholders' Agreement to be
entered into between the Mas Shareholders, Xxxxx X. Xxxxxxxxxx, Xxxxxx Fund I,
L.P., a Texas limited partnership, the Company, General Electric Capital
Corporation, a New York corporation, and GECFS, and with the rights granted to
Xxxxx X. Xxxxxxxxxx under his stock option agreement, dated as of December 1,
1995. If the Company shall at any time hereafter provide to any holder of any
securities of the Company rights with respect to the registration of such
securities under the Securities Act, such rights shall be subordinate to and
shall not be in conflict with or adversely affect any of the rights provided in
this Agreement to GECFS.
7. DEFINITIONS. The following terms have the following respective
meanings for the purpose of this Agreement:
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"AFFILIATE" shall have the meaning ascribed to such term in the
Securities Purchase Agreement.
"CLASS A COMMON STOCK" means the Company's Class A Ordinary Common
Stock, par value $0.01 per share.
"CLASS B COMMON STOCK" means the Company's Class B Special Common
Stock, par value $0.01 per share, acquired from the Company by GECFS pursuant to
the Exchange Agreement.
"CONTROL OPTION AGREEMENT" means the Control Option Agreement, dated as
of March 25, 1998, between the Mas Shareholders, the Company and General
Electric Capital Corporation, a New York corporation.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute as at the time in effect, and any reference to a
particular Section of such Act shall include a reference to the comparable
Section, if any, of any such similar federal statute.
"EXCHANGE AGREEMENT" means the Exchange Agreement, dated as of March
25, 1998, between the Company and GECFS.
"MAS SHAREHOLDERS" means Xxxxx Mas, Xxxx X. Mas and Xxxx X. Mas.
"PERSON" means any individual, sole proprietorship, partnership
(including a limited partnership), joint venture, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
limited liability company, joint stock company, government entity or any other
business entity.
"PROPOSED AMOUNT" means, with respect to the Registrable Securities,
the aggregate amount of shares thereof that GECFS shall request the Company to
register pursuant to Section 2.
"REGISTRABLE SECURITIES" means the shares of Class A Common Stock of
the Company underlying or issued pursuant to the conversion of the Class B
Common Stock or the exercise of the options conferred under the Control Option
Agreement, including any additional securities of the Company issued in respect
of such securities by way of a stock split, dividend or other recapitalization
or exchange of securities with or by the Company. Once issued, such securities
shall cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under
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the Securities Act, (iii) they shall have been otherwise transferred and new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company, or (iv) they shall have ceased to be
outstanding.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal statute as at the time in effect, and any reference to a
particular Section of such Act shall include a reference to the comparable
Section, if any, of any such similar federal statute.
"SELLING EXPENSES" means all underwriting discounts, selling
commissions, stock transfer taxes, and fees and disbursements of counsel for,
and any other Person retained by, GECFS, applicable to the securities registered
by GECFS.
8. AMENDMENTS AND WAIVERS. This Agreement may be amended, and any
provision of this Agreement may be waived, by a writing signed by both GECFS and
the Company. GECFS shall be bound by any consent given pursuant to this Section
8, whether or not any affected Registrable Securities shall have been marked to
indicate such consent.
9. NOTICES. All notices, demands and other communications given or
delivered under this Agreement will be in writing and shall be made by hand
delivery, overnight courier, first-class mail, or telecopier and will be deemed
to have been given when personally delivered, four business days after being
mailed by first class mail, return receipt requested, or delivered by express
courier service or telecopied (subject to receipt of confirmation). Notices,
demands and communications to the Company and GECFS will, unless another address
is specified in writing, be sent to the addresses indicated below:
Notices to the Company:
Xxxx Corp.
0000 X.X. 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, President
Telecopy: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Notices to GECFS:
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GECFS, Inc.
000 Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to:
General Electric Capital Corporation
000 Xxxx Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy: (000) 000-0000
and:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx X, Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
10. SPECIFIC PERFORMANCE. The parties hereto recognize and agree that
money damages may be insufficient to compensate GECFS for breaches by the
Company of the terms hereof and, consequently, that the equitable remedy of
specific performance of the terms hereof will be available in the event of any
such breach.
11. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any aspect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and priviliges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
12. MISCELLANEOUS. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, whether so expressed or not. GECFS may freely assign all or
a portion of their rights under this agreement. This Agreement embodies the
entire agreement and understanding between the Company and GECFS and supersedes
all prior agreements and understandings relating to the subject matter hereof.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK. The headings in this Agreement are for
purposes of reference only and shall not limit or
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otherwise affect the meaning hereof. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
XXXX CORP.
By: /S/ XXXXX X. XXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxx
Title: President
GECFS, INC.
By: /S/ XXX X. XXXXXX
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Name: Xxx Xxxxxx
Title: Operations Manager
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