INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.3
This
Agreement (this “Agreement”)
is
made as of April 5, 2006 by and between General Finance Corporation (the
“Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”).
WHEREAS,
the Company has entered into an Underwriting Agreement (“Underwriting
Agreement”)
with
Xxxxxx Xxxxxx & Co. Inc. (“Xxxxxx
Xxxxxx”)
acting
as the representative (the “Representative”)
of the
underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase
from the Company, and effect a public offering (the “IPO”)
of,
7,500,000 Units (“Units”),
each
Unit consisting of one share of the Company’s common stock, par value $.0001 per
share (“Common
Stock”),
and
one Warrant, to purchase one share of Common Stock, all as more fully described
in the Company’s final Prospectus comprising part of the Company’s Registration
Statement on Form S-1 (File No. 333-129830) under the Securities Act of 1933,
as
amended (“Registration
Statement”);
WHEREAS,
prior to the closing of the IPO, the Company will sell 583,333 Warrants to
two
officers of the Company (the “Private
Placement”);
WHEREAS,
the Registration Statement has been declared effective as of the date hereof
by
the Securities and Exchange Commission (“Effective
Date”);
WHEREAS,
as described in the Registration Statement, funds (the “Property”)
constituting a portion of the proceeds of the Private Placement and the IPO
will
be delivered to the Trustee to be deposited and held in a trust account for
the
benefit of the Company and the holders of the Common Stock (the “Public
Stockholders,”
and
collectively with the Company, the “Beneficiaries”)
issued
in the IPO as part of the Units (such shares, excluding shares of Common Stock
issued upon exercise of Warrants issued in the IPO, the “IPO
Shares”);
and
WHEREAS,
the Company and the Trustee desire to enter into this Agreement to set forth
the
terms and conditions pursuant to which the Trustee shall hold the
Property.
IT
IS
AGREED:
1. Agreements
and Covenants of Trustee.
The
Trustee hereby agrees and covenants to:
(a) Hold
the
Property in trust for the Beneficiaries in accordance with the terms of this
Agreement (“Trust
Account”)
established by the Trustee at a branch of XX Xxxxxx Xxxxx NY Bank in conjunction
with an account established at a broker dealer selected by the
Trustee;
(b) Manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) In
a
timely manner, upon the instruction of the Company, invest and reinvest the
Property in any Government Security. As used herein, “Government
Security”
means
any Treasury Xxxx issued by the United States, having a maturity of one hundred
and eighty days or less or in money market funds selected by the Company meeting
the conditions specified in Rule 2a-7 promulgated under the Investment
Company Act of 1940, as amended, as determined by the Company;
(d) Collect
and receive, when due, all principal and income arising from the Property,
which
shall become part of the “Property”;
(e) Notify
the Company and the Representative of all communications received by it with
respect to any Property requiring action by the Company;
(f) Supply
any necessary information or documents as may be requested by the Company in
connection with the Company’s preparation of the tax returns for the Trust
Account;
(g) Participate
in any plan or proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company and Xxxxxx
Xxxxxx;
(h) Render
to
the Company and to the Representative, and to such other persons as the Company
may from time to time instruct, monthly written statements of the activities
of
and amounts in the Trust Account reflecting all receipts and disbursements
of
the Trust Account;
(i) Upon
written instructions from the Company, the Trustee shall disburse funds by
bank
wire transfer out of the Property in the Trust Account to the Company’s bank
account in an amount specified by the Company, as required to pay its income
tax
liability, if any, relating to interest earned on the Property;
(j) Upon
receipt of a letter (a “Termination
Letter”),
in a
form substantially similar to that attached hereto as either Exhibit A or
Exhibit B, signed on behalf of the Company by its Chief Executive Officer or
Chairman of the Board and affirmed by a majority of its Board of Directors,
comply with the instructions set forth in the letter regarding the liquidation
of the Trust Account, including distribution of the Property in the Trust
Account only as directed in the Termination Letter and the other documents
referred to therein; and
(k) If
the
Trustee shall not have received a Termination Letter on or prior to the
Distribution Date, promptly following the Distribution Date the Trustee shall
liquidate the Trust Account in accordance with the procedures set forth in
the
Termination Letter attached as Exhibit B to the Public Stockholders of record
as
of a record date fixed by the Trustee, which record date shall be within ten
days of the liquidation date, or as soon thereafter as is practicable. For
purposes of this Agreement, the “Distribution Date” shall mean October 5, 2007
[18
months from the Effective Date]
or, if
on or prior to such date the Trustee has received a certification from the
Company substantially in the form of Exhibit C, the date that is two years
from
the Effective Date.
2. Agreements
and Covenants of the Company.
The
Company hereby agrees and covenants to:
(a) Give
all
instructions to the Trustee hereunder in writing, signed by an Authorized
Individual. The “Authorized
Individuals”
shall
be those individuals from time to time designated in writing to the Trustee
by
the Company as “Authorized Officers,” provided that each such individual must be
an executive officer or Chairman of the Board of the Company. The initial
Authorized Individuals are identified in Exhibit D to this Agreement. In
addition, except with respect to its duties under Section 1(j) above, the
Trustee shall be entitled to rely on, and shall be protected in relying on,
any
verbal or telephonic advice or instruction which it in good faith believes
to be
given by any one of the persons authorized above to give written instructions,
provided that the Company shall promptly confirm such instructions in
writing;
(b) Hold
the
Trustee harmless and indemnify the Trustee from and against any and all
expenses, including reasonable counsel fees and disbursements, or loss suffered
by the Trustee in connection with any action, suit or other proceeding brought
against the Trustee involving any claim, or in connection with any claim or
demand which in any way arises out of or relates to this Agreement, the services
of the Trustee hereunder, or the Property or any income earned from investment
of the Property, except for expenses and losses resulting from the Trustee’s
gross negligence or willful misconduct. Promptly after the receipt by the
Trustee of notice of demand or claim or the commencement of any action, suit
or
proceeding, pursuant to which the Trustee intends to seek indemnification under
this paragraph, it shall notify the Company in writing of such claim
(hereinafter referred to as the “Indemnified
Claim”).
The
Trustee shall have the right to conduct and manage the defense against such
Indemnified Claim, provided,
however,
that
the Trustee shall obtain the consent of the Company with respect to the
selection of counsel, which consent shall not be unreasonably withheld. The
Company may participate in such action with its own counsel;
(c) Pay
the
Trustee an initial acceptance fee of $1,000 and an annual fee of $3,000 (it
being expressly understood that the Property shall not be used to pay such
fee).
The Company shall pay the Trustee the initial acceptance fee and first year’s
fee on the Effective Date and thereafter on the anniversary of the Effective
Date. The Trustee shall refund to the Company the fee (on a pro rata basis)
with
respect to any period after the liquidation of the Trust Account. The Company
shall not be responsible for any other fees or charges of the Trustee except
as
may be provided in Section 2(b) of this Agreement (it being expressly understood
that the Property shall not be used to make any payments to the Trustee under
such paragraph);
(d) In
connection with any vote of the Company’s stockholders regarding a Business
Combination (as defined in the Certificate of Incorporation of the Company),
provide to the Trustee an affidavit or certificate of a firm regularly engaged
in the business of soliciting proxies and tabulating stockholder votes (which
firm may be the Trustee) verifying the number of votes of the Company’s
stockholders for and against such Business Combination.
3. Limitations
of Liability.
The
Trustee shall have no responsibility or liability to:
(a) Take
any
action with respect to the Property, other than as directed in Section 1 of
this
Agreement and the Trustee shall have no liability to any party except for
liability arising out of its own gross negligence or willful
misconduct;
(b) Institute
any proceeding for the collection of any principal and income arising from,
or
institute, appear in or defend any proceeding of any kind with respect to,
any
of the Property unless and until it shall have received instructions from the
Company given as provided herein to do so and the Company shall have advanced
or
guaranteed to it funds sufficient to pay any expenses incident
thereto;
(c) Change
the investment of any Property, other than in compliance with Section 1(c)
of
this Agreement;
(d) Refund
any depreciation in principal of any Property;
(e) Assume
that the authority of any Authorized Officer designated by the Company to give
instructions hereunder shall not be continuing unless provided otherwise in
such
designation, or unless the Company shall have delivered a written revocation
of
such authority to the Trustee;
(f) The
other
parties hereto or to anyone else for any action taken or omitted by it, or
any
action suffered by it to be taken or omitted, in good faith and in the exercise
of its own best judgment, except for its gross negligence or willful misconduct.
The Trustee may rely conclusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Trustee), statement, instrument, report or other paper
or
document (not only as to its due execution and the validity and effectiveness
of
its provisions, but also as to the truth and acceptability of any information
therein contained) which is believed by the Trustee, in good faith, to be
genuine and to be signed or presented by the proper person or persons. The
Trustee shall not be bound by any notice or demand, or any waiver, modification,
termination or rescission of this agreement or any of the terms hereof, unless
evidenced by a written instrument delivered to the Trustee signed by the proper
party or parties and, if the duties or rights of the Trustee are affected,
unless it shall give its prior written consent thereto;
(g) Verify
the correctness of the information set forth in the Registration Statement
or to
confirm or assure that any Business Combination consummated by the Company
or
any other action taken by the Company is as contemplated by the Registration
Statement;
(h) Subject
to the requirements of Section 1(i) of this Agreement, pay any taxes on behalf
of the Trust Account to any governmental entity or taxing
authority;
(i) File
income tax or information returns with the United States Internal Revenue
Service and payee statements with the Company, documenting the taxes payable
by
the Company, if any, relating to interest earned on the Property;
or
(j) Compute,
confirm or otherwise verify amounts requested by the Company pursuant to
Section 1(i), above.
4. Termination.
This
Agreement shall terminate as follows:
(a) If
the
Trustee gives written notice to the Company that it desires to resign under
this
Agreement, the Company shall use its reasonable efforts to locate a successor
trustee. At such time that the Company notifies the Trustee that a successor
trustee has been appointed by the Company and has agreed to become subject
to
the terms of this Agreement, the Trustee shall transfer the management of the
Trust Account to the successor trustee, including but not limited to the
transfer of copies of the reports and statements relating to the Trust Account,
whereupon this Agreement shall terminate; provided, however, that if the Company
does not locate a successor trustee within 90 days of receipt of the resignation
notice from the Trustee, the Trustee may submit an application to have the
Property deposited with the United States District Court for the Southern
District of New York and upon such deposit, the Trustee shall be immune from
any
liability whatsoever that arises due to any actions or omissions to act by
any
party after such deposit; or
(b) At
such
time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of Section 1(j) or Section 1(k) of this
Agreement, and distributed the Property in accordance with the provisions of
the
Termination Letter, this Agreement shall terminate except with respect to
Section 2(b) of this Agreement.
5. Miscellaneous.
(a) The
Company and the Trustee each acknowledge that the Trustee will follow the
security procedures set forth in the Section 5 with respect to funds transferred
from the Trust Account. Upon receipt of written instructions, the Trustee will
confirm such instructions with an Authorized Individual at an Authorized
Telephone Number listed on the attached Exhibit D. The Company and the Trustee
will each restrict access to confidential information relating to such security
procedures to authorized persons. Each party must notify the other party
immediately if it has reason to believe unauthorized persons may have obtained
access to such information, or of any change in its authorized personnel. In
executing funds transfers, the Trustee will rely upon account numbers or other
identifying numbers of a beneficiary, beneficiary’s bank or intermediary bank,
rather than names. The Trustee shall not be liable for any loss, liability
or
expense resulting from any error in an account number or other identifying
number, provided it has accurately transmitted the numbers
provided.
(b) This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to conflict of laws. It
may
be executed in several counterparts, each one of which shall constitute an
original, and together shall constitute but one instrument.
(c) This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. This Agreement or any provision
hereof may only be changed, amended or modified by a writing signed by each
of
the parties hereto; provided,
however,
that no
such change, amendment or modification may be made without the prior written
consent of Xxxxxx Xxxxxx. As to any claim, cross-claim or counterclaim in any
way relating to this Agreement, each party waives the right to trial by
jury.
(d) The
parties hereto consent to the jurisdiction and venue of any state or federal
court located in the City of New York for purposes of resolving any disputes
hereunder.
(e) Any
notice, consent or request to be given in connection with any of the terms
or
provisions of this Agreement shall be in writing and shall be sent by Express
Mail or similar private courier service, by certified mail (return receipt
requested), by hand delivery or by facsimile transmission:
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if
to the Trustee, to:
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Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx, Chairman
Fax
No.: (000) 000-0000
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if
to the Company, to
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General
Finance Corporation
000
Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx
Fax
No.: ____________
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in
either case with a copy to:
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Xxxxxx
Xxxxxx & Co. Inc.
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxxx
Fax
No.: (000) 000-0000
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and
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Xxxx
& Xxxxx PC
0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000-0000
Attn:
Xxxx X. Xxxxx, Esq.
Fax
No.: (000) 000-0000
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XxXxxxxxx
Will & Xxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxx X. Xxxxxxxxxx, Esq.
Fax
No.: (000) 000-0000
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(f) This
Agreement may not be assigned by the Trustee without the prior written consent
of the Company and the Representative.
(g) Each
of
the Trustee and the Company hereby represents that it has the full right and
power and has been duly authorized to enter into this Agreement and to perform
its respective obligations as contemplated hereunder. The Trustee acknowledges
and agrees that it shall not make any claims or proceed against the Trust
Account, including by way of set-off, and shall not be entitled to any funds
in
the Trust Account under any circumstance.
REMAINDER
OF PAGE LEFT BLANK
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Trustee
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| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | ||
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Title:
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GENERAL
FINANCE CORPORATION
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| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: | ||
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Title:
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EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx
Re: Trust
Account No. [ ] Termination Letter
Gentlemen:
Reference
is made to that certain Investment Management Trust Agreement between General
Finance Corporation (the “Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”) dated as of __________, 2006 (the “Trust Agreement”).
Capitalized terms used in this letter shall have the meanings ascribed to them
in the Trust Agreement unless otherwise defined in this letter.
Pursuant
to Section 1(j) of the Trust Agreement, the Company hereby advises you that
it
has entered into a definitive agreement to consummate a Business Combination
with _____. The Company anticipates that the Business Combination will be
consummated on or about [insert date]. The Company shall notify you at least
48
hours in advance of the actual date of the consummation of the Business
Combination (the “Consummation Date”).
In
accordance with paragraph B of Article Sixth of the Certificate of Incorporation
of the Company, the Business Combination has been approved by the stockholders
of the Company and by the Public Stockholders holding a majority of the IPO
Shares, and Public Stockholders holding less than 20% of the IPO Shares have
voted against the Business Combination and given notice of exercise of their
conversion rights described in paragraph C of Article Sixth of the Certificate
of Incorporation of the Company. Pursuant to Section 2(d) of the Trust
Agreement, we are providing you with [an affidavit] [a certificate] of _____,
which verifies the number of votes of the Company’s stockholders for and against
the Business Combination.
On
the
Consummation Date (a) counsel for the Company shall deliver to you written
notification that the Business Combination has been consummated and (b) the
Company shall deliver to you written instructions with respect to the transfer
of the funds held in the Trust Account (the “Instruction Letter”). You are
hereby directed and authorized to transfer the funds held in the Trust Account
immediately upon your receipt of the counsel’s letter and the Instruction
Letter, in accordance with the terms of the Instruction Letter. If certain
deposits held in the Trust Account may not be liquidated by the Consummation
Date without penalty, you will notify the Company of the same and the Company
shall direct you as to whether such funds should remain in the Trust Account
and
distributed after the Consummation Date to the Company. Upon the distribution
of
all the funds in the Trust Account pursuant to the terms hereof, the Trust
Agreement shall be terminated.
If
the
proposed Business Combination is not consummated on the Consummation Date
described in the notice thereof and we have not notified you on or before the
original Consummation Date of a new Consummation Date, then you shall reinvest
the funds held in the Trust Account as provided in the Trust Agreement on the
business day immediately following the Consummation Date as set forth in the
notice.
The
undersigned directors constitute a majority of the Board of Directors of the
Company as of the date of this letter.
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Very
truly yours,
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GENERAL
FINANCIAL CORPORATION
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Name: |
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Title:
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AFFIRMED
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| By: | ||
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Name: |
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| Title: Director | ||
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Name: |
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| Title: Director | ||
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Name: |
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| Title: Director | ||
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Name: |
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| Title: Director | ||
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx
Re:
Trust
Account No. [ ] Termination Letter
Gentlemen:
Reference
is made to that certain Investment Management Trust Agreement between General
Finance Corporation (the “Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”) dated as of ____________, 2006 (the “Trust Agreement”).
Capitalized terms used in this letter shall have the meanings ascribed to them
in the Trust Agreement unless otherwise defined in this letter.
Pursuant
to Section 1(j) of the Trust Agreement, the Company hereby advises you that
the
Board of Directors of the Company has voted to dissolve and liquidate the
Company. Attached hereto is a copy of the minutes of the meeting of the Board
of
Directors of the Company relating thereto, certified by the Secretary of the
Company as true and correct and in full force and effect.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
liquidate the Trust Account to the Public Stockholders. In connection with
this
liquidation, you are hereby authorized to establish a record date for the
purposes of determining the Public Stockholders of record entitled to receive
their pro rata share of the Trust Account. The record date shall be within
ten
days of the liquidation date, or as soon thereafter as is
practicable.
You
shall
notify the Company in writing as to when all of the funds in the Trust Account
will be available for immediate transfer (“Transfer Date”) in accordance with
the terms of the Trust Agreement. You shall commence distribution of such funds
in accordance with the terms of the Trust Agreement and you shall oversee the
distribution of the funds. Upon the payment of all the funds in the Trust
Account, the Trust Agreement shall be terminated.
The
undersigned directors constitute a majority of the Board of Directors of the
Company as of the date of this letter.
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Very
truly yours,
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GENERAL
FINANCIAL CORPORATION
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Name: |
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Title:
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Name: |
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Title:
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AFFIRMED
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| By: | ||
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Name: |
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| Title: Director | ||
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Name: |
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| Title: Director | ||
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Name: |
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| Title: Director | ||
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Name: |
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EXHIBIT
C
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx
Re:
Trust
Account No. [ ] Termination Letter
Gentlemen:
Reference
is made to that certain Investment Management Trust Agreement between General
Finance Corporation (the “Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”) dated as of ____________, 2006 (the “Trust Agreement”).
Capitalized terms used in this letter shall have the meanings ascribed to them
in the Trust Agreement unless otherwise defined in this letter.
The
Company hereby advises you that it has entered into a letter of intent, an
agreement in principle or a definitive agreement to complete a Business
Combination, a copy of which is enclosed. As a result, the Distribution Date
has
been extended to , 2008, the second anniversary of the Effective
Date.
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Very
truly yours,
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GENERAL
FINANCIAL CORPORATION
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Name:
Title:
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EXHIBIT
D
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AUTHORIZED
INDIVIDUAL(S)
FOR
TELEPHONE CALL BACK
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AUTHORIZED
TELEPHONE
NUMBER(S)
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Company:
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Xxxxxx
Xxxxxxx
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(000)
000-0000
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Xxxx
X. Xxxxxxx
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Trustee:
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Continental
Stock Transfer & Trust Company
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00
Xxxxxxx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxxxxx X. Xxxxxx
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(000)
000-0000
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