EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, (the "Agreement"), dated as of
December 4, 2000 between Hi-Rise Recycling Systems, Inc., a Florida corporation
(the "Company"), and General Electric Capital Corporation (the "Holder").
1. Background. The Company is a party to a certain Securities
Purchase Agreement (this term and all other capitalized terms used herein
without definition having the meaning specified in Section 7 hereof), which
governs certain rights and obligations of the Company and the Holder. The Holder
owns warrants (as the same may be adjusted, the "Warrant") to purchase
17,745,689 shares of Common Stock.
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, the Company shall
give notice to the Holder of its intention to effect such a registration prior
to the filing with the Securities and Exchange Commission (the "SEC") of such
registration statement. Notwithstanding the foregoing, a piggyback registration
pursuant to this Section 2.1 shall not include any registration statement (i) on
Form S-8 or any successor form to such form, (ii) on Form S-4 or any successor
form to such form, (iii) filed in connection with an exchange offer or an
offering of Common Stock or of securities convertible or exchangeable into
Common Stock made solely to its existing stockholders in connection with a
rights offering or solely to the Company's employees, or a post-effective
amendment to any then effective registration statement. Upon written request of
any Holder, given within 7 days after receipt from the Company of such notice,
the Company shall use its best efforts to cause the number of the Holder's
Registerable Securities 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 which 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 such Holder shall accept a reduction (pro rata
with the other holders of the Company's equity securities entitled to register
such securities on such registration statement whose registration rights are not
subordinate to such Holder's ("parri passu holders"), 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 such equity securities (other than those to be sold for the
Company's account) as to which registration is sought by the Holder and the
parri passu holders) 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, upon the written
request of the Holder, which request shall specify the Registerable Securities
so requested to be registered by Holder, the Proposed Amount thereof and the
intended method of disposition by Holder, the Company will, as expeditiously as
reasonably possible, use its best efforts to effect the registration under the
Securities Act of the resale of the Proposed Amount of Registerable 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 the
Holder a certificate 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 120 days after receipt of the request
of the Holder. 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 opinion of the managing
underwriter (if such method of disposition shall be an underwritten public
offering), such inclusion would adversely affect the marketing of the
Registerable Securities to be sold by the Holder or (y) in the reasonable
opinion of the Holder (if such method of disposition is not an underwritten
public offering), such inclusion would adversely affect the price at which such
Registerable Securities may be sold pursuant to the plan of distribution;
provided, however, that if, after such registration statement has been filed,
the managing underwriter believes that the inclusion of all securities requested
to be included in the proposed underwritten public offering would adversely
affect the marketing of the Registerable Securities or, in the case of a
distribution that is not an underwritten public offering, if the Holder
reasonably believes that the inclusion of all securities requested to be
included in such registration statement would adversely affect the price at
which the Registerable Securities may be sold pursuant to the plan of
distribution, then the aggregate amount of securities to be offered by the
Company and such other security holders of the Company shall be reduced so as to
permit the offering of all Registerable Securities requested by the Holder
without such adverse effects.
(b) The Company shall not be obligated to take any action to effect
any registration requested by the Holder pursuant to Section 2.2(a) hereof (i)
after the Company has effected two (2) such registrations pursuant to this
Agreement and each such registration has been declared or ordered effective,
(ii) for a period of two (2) years after the Company has effected one such
registration pursuant to Section 2.2(a) hereof and such registration has been
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declared or ordered effective, such two year period to commence on the date the
registration statement was declared or ordered effective or (iii) at any time
after the second anniversary of the expiration date of the Warrant.
(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 by reason of the refusal of Holder
to proceed shall be deemed to have been effected by the Company unless the
Holder 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 the Holder, 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 the
Holder.
2.3 Holdback Agreements. The Holder, if, as and when the Holder's
Registerable Securities are covered by a Registration Statement, agrees, if
necessary to effectuate an underwritten offering of the Company's equity
securities in the reasonable judgment and at the request of the managing
underwriter or underwriters (to the extent timely notified in writing by such
managing underwriter or underwriters), not to effect any public sale or
distribution of securities of the Company of any class included in such
Registration Statement, including a sale pursuant to Rule 144 (or any similar
rule then in force) under the Securities Act, except as part of such
underwritten registration, during the 10-day period prior to, and a period of up
to 120 days (as reasonably determined by the Company and the managing
underwriter or underwriters) beginning on the effective date of any such
underwritten offering (any such period in respect of a Registration Statement
being referred to as a "Holding Period"); provided, however, that the period of
time for which the Company is to maintain the effectiveness of such Registration
Statement pursuant to Section 2.4 shall be increased by the length of the
applicable Holding Period.
2.4 Registration Procedures. Subject to the limitations set forth
elsewhere herein, if and whenever the Company is required by the provisions of
this Agreement to use its best efforts to effect or cause the registration of
any Registerable 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 60 days after the initial
request by the Holder pursuant to Section 2.2(a)) a registration statement with
respect to such Registerable Securities on a form appropriate to permit the
Holder to sell the Proposed Amount in accordance with the Holder's intended
method of distribution and use its best efforts to cause such registration
statement to become and remain effective;
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(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 the Holder, which period shall not exceed twelve (12)
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; provided, however, that if such registration has
been effected pursuant to Form S-3 (or any successor form), then such period of
effectiveness shall be until the earlier of (i) 24 months or (ii) the date that
the offering is completed or terminated;
(c) furnish to a single firm of counsel, initially Weil, Gotshal &
Xxxxxx LLP, or such other counsel thereafter designated by the Holder (the
"Holder's Counsel"), and each underwriter of the securities being sold by the
Holder, at least 5 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 reasonably 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 Registerable Securities owned by the
Holder;
(d) use its best efforts to register or qualify such Registerable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each underwriter of the securities being
sold by the Holder shall reasonably request, and do any and all other acts and
things which may be necessary or advisable to enable the Holder and such
underwriter to consummate the disposition in such jurisdictions of such
Registerable Securities 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 Registerable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
disposition of such Registerable Securities;
(f) notify the Holder, 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 the Holder and each underwriter a reasonable amount of
copies of a prospectus supplement or amendment so that, as thereafter delivered
to the purchasers of such Registerable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
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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 the Holder, 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 the Holder shall reasonably
request in order to expedite or facilitate the disposition of such Registerable
Securities;
(i) use its best efforts to furnish to the Holder 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 the Holder, in
customary form and covering such matters of the type customarily covered by such
opinions and "cold comfort" letters, in each case for the type of offering
contemplated (i.e., underwritten or self-underwritten), as the Holder shall
reasonably request;
(j) make available for inspection by the Holder, 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 the Holder or any such underwriter, all reasonably pertinent financial and
other records, reasonably 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 the Holder or any such
underwriter, attorney, accountant or agent in connection with such registration
statement; provided, however, that the Holder and each representative of the
Holder, underwriter, attorney, accountant or agent must execute and deliver to
the Company a confidentiality agreement in form and substance reasonably
acceptable to the Company agreeing to keep any such information and records
concerning the Company confidential;
(k) permit the Holder 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 cause all Registerable Securities covered by
such Registration Statement to be (i) listed on each securities exchange, if
any, on which similar securities issued by the Company are then listed or (ii)
authorized to be quoted on the National Association of Securities Dealers
Automated Quotation System if the securities so qualify and if the Company does
not then have similar securities listed on any national securities exchange; and
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(m) in the case of an underwritten offering, enable the Registerable
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 Registerable Securities.
In the case of an underwritten offering, the underwriters shall be
selected by the Company and reasonably acceptable to the Holder.
The Holder 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 its disposition of Registerable Securities pursuant to the
registration statement covering such Registerable Securities until the Holder's
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
the Holder's possession of the prospectus covering such Registerable 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 the Holder shall have
received the copies of the supplemented or amended prospectus contemplated by
subdivisions (f) above.
The Holder shall enter into such customary agreements as requested by
the Company in connection with the registration of securities as contemplated by
this Agreement.
The Holder shall furnish to the Company in writing such information
and documents regarding the Holder 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. The Company may exclude from such registration the Holder's Registerable
Securities if the Holder fails to furnish such information within a reasonable
time after receiving such request.
If any such registration or comparable statement refers to the Holder
by name or otherwise as the holder of any securities of the Company then the
Holder shall have the right to require (i) the insertion therein of language, in
form and substance satisfactory to the Holder and presented to the Company in
writing, to the effect that the holding by the Holder of such securities is not
to be construed as a recommendation by the Holder of the investment quality of
the Company's securities covered thereby and that such holding does not imply
that the Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to the Holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Holder.
3. Registration Expenses. In connection with any registration of
Registerable 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
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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 or blue sky laws, word processing, duplicating and
printing expenses, messenger and delivery expenses, 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 and reasonable fees and expenses of the Holder's counsel. In
addition, in the event that an assignment of a Registerable Security occurs
subsequent to the date of effectiveness of a Registration Statement filed
pursuant to this Agreement, the Company shall pay all reasonable expenses
necessary to amend or supplement such Registration Statement to reflect such
assignment for the first two such assignments and the transferee shall pay for
any subsequent assignments. The Holder shall be responsible for its Selling
Expenses.
4. Indemnification.
(a) The Company will, and hereby does, indemnify, to the extent
permitted by law, the Holder, its officers and directors, if any, and each
Person, if any, who controls the Holder 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, except insofar as such
losses, claims, damages, liabilities (or proceedings in respect thereof) or
expenses are caused by any untrue statement or alleged untrue statement or an
omission or alleged omission to state a material fact made in reliance on or in
conformity with any information furnished in writing to the Company by any of
the Holder 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 an
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 the Holder, its respective officers and directors, if any,
and each Person, if any, who controls the Holder within the meaning of Section
15 of the Securities Act.
(b) If for any reason the indemnity under Section 4(a) is
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
hand 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 Company on the one hand and the indemnified party
on the other hand but also the relative benefits received by the Company and the
indemnified party as well as any other relevant equitable considerations. No
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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) The Holder will, and hereby does, indemnify, to the extent
permitted by law, the Company, 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, 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 expenses 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 the Holder. If
the offering pursuant to any registration statement provided for under this
Agreement is made through underwriters, the Holder 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 hereinbefore provided with respect to the
indemnification of the Company, 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.
(d) If for any reason the indemnity under Section 4(c) is
unavailable, then the Holder 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 Holder on the one hand and of the indemnified party on the other
hand 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 Holder on the one hand and the indemnified party
on the other hand but also the relative benefits received by the Holder and the
indemnified party as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation (within the meaning of Section
1l(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation,
(e) The Holder 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 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 the Holder), the Holder shall be deemed to have agreed by
acquisition of such Registerable Securities not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under the Securities Act,
of any Registerable Securities, during such period prior and subsequent to the
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commencement of the offering of securities pursuant to such registration
statement as may be reasonably 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.
6. Registration Rights to Others. 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 not be superior to and shall not be in conflict with any of the
rights provided in this Agreement to the Holder.
7. Definitions. The following terms have the following respective
meanings for the purpose of this Agreement:
Credit Agreement: That certain Credit Agreement, dated as of October
28, 1998, among the Company, the other parties named as Borrowers thereto,
General Electric Capital Corporation, Bank of America, N.A. ("BOA"), successor
NationalBank, National Association, and Key Corporate Capital Inc. and the other
parties which may from time to time be Lenders thereunder, and General Electric
Capital Corporation, as Administrative Agent, and BOA, National Association, as
Revolver Agent) as amended from time to time.
Exchange Act: 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.
Person: The term "Person" shall have the meaning ascribed to such
term in the Credit Agreement.
Proposed Amount: With respect to the Registerable Securities, the
aggregate amount of Registerable Securities that the Holder thereof shall
request the Company to register pursuant to Section 2.
Registerable Securities: The shares of Common Stock of the Company
underlying or issued pursuant to the exercise of the Warrants to purchase such
Common Stock issued or issuable by the Company to the Holder pursuant to the
Securities Purchase Agreement (the "Shares"), including any additional
securities of the Company issued in respect of the Shares, including 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 Registerable
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 the Securities Act or if the Holder may
sell the Registerable Securities without restriction pursuant to Rule 144K under
the Securities Act (or successor thereto) and the restrictive legends have been
removed from the certificates representing such securities, (iii) they shall
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
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of them under the Securities Act or any similar state law then in force, or (iv)
they shall have ceased to be outstanding.
Securities Act: 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.
Securities Purchase Agreement: That certain Securities Purchase
Agreement dated as of the date hereof by and among the Company and Holder.
Selling Expenses: All underwriting discounts, selling commissions and
stock transfer taxes applicable to the securities registered by the Holder.
8. Amendments and Waivers. This Agreement may be amended by a writing
signed by the Holder and the Company.
9. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) one (1)
Business Day after deposit with a reputable overnight courier with all charges
prepaid or (c) when delivered, if hand-delivered by messenger, all of which
shall be addressed to the party to be notified and sent to the address indicated
on ANNEX I or to such other address (or facsimile number) as may be substituted
by notice given as herein provided. The giving of any notice required hereunder
may be waived in writing by the party entitled to receive such notice. Failure
or delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to any Person designated on ANNEX I to
receive copies shall in no way adversely affect the effectiveness of such
notice, demand, request, consent, approval, declaration or other communication.
10. Specific Performance. The parties hereto recognize and agree that
money damages may be insufficient to compensate the Holder 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 respect 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 privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
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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. The Holder may freely assign all or a
portion of its rights under this Agreement. THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREUNDER. The headings in
this Agreement are for purposes of reference only and shall not limit or
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.
HI-RISE RECYCLING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: VP, CFO
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Risk Manager
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