GUARANTY
EXHIBIT
10.5
THIS
GUARANTY (with
all
of its modifications, supplements, restatements, extensions, and renewals in
effect from time to time, this "Guaranty")
dated
as of May 1, 2008 ("Effective
Date")
is
made by GENERAL
FINANCE CORPORATION, a
Delaware corporation ("GFN"),
GFN
U.S. AUSTRALASIA HOLDINGS, INC.,
a
Delaware corporation ("GFN
US"),
GFN
AUSTRALASIA HOLDINGS PTY LTD,
an
Australian corporation ("GFN
Holdings"),
and
such other entities which from time to time become parties hereto (individually
a "Guarantor"
and
collectively, "Guarantors"),
in
favor of BISON
CAPITAL AUSTRALIA, L.P.,
a
Delaware limited partnership ("Bison").
RECITALS
GFN
AUSTRALASIA FINANCE PTY LTD,
an
Australian corporation (the
"Company"),
intends to deliver to Bison a Secured Senior Subordinated Promissory Note dated
as of even date herewith (the “Note”)
and to
enter into that certain First Amendment to Securities Purchase Agreement dated
as of even date herewith and that certain First Amendment to Shareholders
Agreement dated as of even date herewith (collectively, the “Transactions”).
Execution, delivery and performance of this Guaranty is one of the conditions
to
Bison's obligation to consummate the Transactions; and
Company,
GFN, GFN Holdings, GFN US and Bison entered into that certain Securities
Purchase Agreement dated as of September 13, 2007 (the “Purchase
Agreement”).
AGREEMENT
Accordingly,
to induce Bison to enter into and consummate the Transactions, and for other
valuable consideration, receipt of which is acknowledged, Guarantors covenant
and agree as follows:
1. All
capitalized terms used in this Guaranty without separate definition shall have
the meanings given to them in the Purchase Agreement.
2. Guarantors
jointly and severally, unconditionally and absolutely guarantee to Bison, and
to
Bison's successors and assigns, payment when due, whether by stated maturity,
demand, acceleration or otherwise, of all existing and future indebtedness
to
Bison of the Company or any successor in interest, including, without
limitation, any debtor-in-possession or trustee in bankruptcy which succeeds
to
the interest of this party or person (jointly and severally, "Obligor"),
however this indebtedness has been or may be incurred or evidenced, whether
absolute or contingent, direct or indirect, voluntary or involuntary, liquidated
or unliquidated, joint or several, and whether or not known to any Guarantor
at
the time of this Guaranty or at the time any future indebtedness is incurred
(the "Indebtedness").
The
Indebtedness guaranteed includes, without limitation: (a) any and all direct
indebtedness of Obligor to Bison, including indebtedness evidenced by the Note
and any and all other promissory notes; (b) any and all obligations or
liabilities of Obligor to Bison arising under any guaranty where Obligor has
guaranteed the payment of indebtedness owing to Bison from a third party; (c)
any and all obligations or liabilities of Obligor to Bison arising out of any
other agreement by Obligor including, without limitation, any agreement to
indemnify Bison for environmental liability or to clean up hazardous waste;
(d)
any and all indebtedness, obligations or liabilities for which Obligor would
otherwise be liable to Bison were it not for the invalidity, irregularity or
unenforceability of them by reason of any bankruptcy, insolvency or other law
or
order of any kind, or for any other reason, including, without limitation,
liability for interest and attorneys' fees on, or in connection with, any part
of the Indebtedness from and after the filing by or against Obligor of a
bankruptcy petition whether an involuntary or voluntary bankruptcy case,
including, without limitation, all reasonable attorneys' fees and costs incurred
in connection with motions for relief from stay, cash collateral motions,
nondischargeability motions, preference liability motions, fraudulent conveyance
liability motions, fraudulent transfer liability motions and all other motions
brought by Obligor, any Guarantor, Bison or third parties in any way relating
to
Bison's rights with respect to any Obligor, any Guarantor, or any third party
and/or affecting any collateral securing any obligation owed to Bison by
Obligor, any Guarantor, or any third party, probate proceedings, on appeal
or
otherwise; (e) any and all amendments, modifications, renewals and/or
extensions of any of the above, including, without limitation, amendments,
modifications, renewals and/or extensions which are evidenced by new or
additional instruments, documents or agreements; and (f) all costs of
collecting Indebtedness, including, without limitation, reasonable attorneys'
fees and costs. This Guaranty is a guaranty of prompt and punctual payment
and
performance and is not merely a guaranty of collection.
-1-
3. Guarantors
waive notice of acceptance of this Guaranty and presentment, demand, protest,
notice of protest, dishonor, notice of dishonor, notice of default, notice
of
intent to accelerate or demand payment of any Indebtedness, and diligence in
collecting any Indebtedness, and agree that Bison may modify the terms of any
Indebtedness, compromise, extend, increase, accelerate, renew or forbear to
enforce payment on any or all Indebtedness, or permit Obligor to incur
additional Indebtedness, all without notice to any Guarantor and without
affecting in any manner the unconditional obligation of any Guarantor under
this
Guaranty. Guarantors further waive any and all other notices to which any
Guarantor might otherwise be entitled. Guarantors acknowledge and agree that
the
liabilities created by this Guaranty are direct and are not conditioned upon
pursuit by Bison of any remedy Bison may have against Obligor or any other
person or any security. No invalidity, irregularity or unenforceability of
any
part or all of the Indebtedness or any documents evidencing the same, by reason
of any bankruptcy, insolvency or other law or order of any kind or for any
other
reason, and no defense or setoff available at any time to Obligor, shall impair,
affect or be a defense or setoff to the obligations of any Guarantor under
this
Guaranty.
4. Guarantors
deliver this Guaranty based solely on their independent investigation of the
financial condition of Obligor and no Guarantor is relying on any information
furnished by Bison. Guarantors assume full responsibility for obtaining any
further information concerning Obligor's financial condition, the status of
the
Indebtedness or any other matter which Guarantor may deem necessary or
appropriate from time to time. Guarantors waive any duty on the part of Bison,
and agree that no Guarantor is relying upon nor expecting Bison to disclose
to
any Guarantor any fact now or later known by Bison, whether relating to the
operations or condition of Obligor, the existence, liabilities or financial
condition of any co-guarantor of the Indebtedness, the occurrence of any default
with respect to the Indebtedness, or otherwise, notwithstanding any effect
these
facts may have upon any Guarantor's risk under this Guaranty or any Guarantor's
rights against Obligor. Guarantors knowingly accept the full range of risk
encompassed in this Guaranty, which risk includes without limit the possibility
that Obligor may incur Indebtedness to Bison after the financial condition
of
Obligor, or its ability to pay its debts as they mature, has
deteriorated.
-2-
5. Guarantors
represent and warrant that: (a) Bison has made no representation to Guarantors
as to the creditworthiness of Obligor; and (b) Guarantors have established
adequate means of obtaining from Obligor on a continuing basis financial and
other information pertaining to Obligor's financial condition. Guarantors agree
to keep adequately informed of any facts, events or circumstances which might
in
any way affect the risks of Guarantors under this Guaranty.
6. Each
Guarantor grants to Bison (but not any assignee of Bison other than an Affiliate
of Bison) a security interest in, and the right of setoff as to, any and all
property of such Guarantor now or later in the possession of Bison or assignee
that is an Affiliate of Bison). Each Guarantor subordinates any claim of any
nature that such Guarantor now or later has against Obligor to and in favor
of
all Indebtedness and agrees not to accept payment or satisfaction of any claim
that such Guarantor now or later may have against Obligor without the prior
written consent of Bison. Should any payment, distribution, security, or
proceeds be received by any Guarantor upon or with respect to any claim that
such Guarantor now or may later have against Obligor, such Guarantor shall
immediately deliver the same to Bison in the form received (except for
endorsement or assignment by such Guarantor where required by Bison) for
application on the Indebtedness, whether matured or unmatured, and until
delivered the same shall be held in trust by such Guarantor as the property
of
Bison. For the avoidance of doubt, Guarantors shall not be required to deliver
to Bison any payment, distribution, security or proceeds received by Guarantors
in respect of any claim that Guarantors may have against Obligor to the extent
receipt (and payment) of the same is expressly permitted under the Purchase
Agreement or the Related Agreements. Each Guarantor further assigns to Bison
as
collateral for the obligations of Guarantors under this Guaranty all claims
of
any nature that such Guarantor now or later has against Obligor (other than
any
claim under a deed of trust or mortgage covering real property) with full right
on the part of Bison, in its own name or in the name of such Guarantor, to
collect and enforce these claims, until the Indebtedness is irrevocably paid
in
full.
7. Guarantors
agree that no security now or later held by Bison for the payment of any
Indebtedness, whether from Obligor, any guarantor, or otherwise, and whether
in
the nature of a security interest, pledge, lien, assignment, setoff, suretyship,
guaranty, indemnity, insurance or otherwise, shall affect in any manner the
unconditional obligation of Guarantors under this Guaranty, and Bison, in its
sole discretion, without notice to any Guarantor, may release, exchange, enforce
and otherwise deal with any security without affecting in any manner the
unconditional obligation of Guarantors under this Guaranty. Guarantors
acknowledge and agree that Bison has no obligation to acquire or perfect any
lien on or security interest in any asset(s), whether realty or personalty,
to
secure payment of the Indebtedness, and Guarantors are not relying upon any
asset(s) in which Bison has or may have a lien or security interest for payment
of the Indebtedness.
-3-
8. Guarantors
acknowledge that the effectiveness of this Guaranty is not conditioned on all
or
any part of the Indebtedness being guaranteed by anyone else.
9. Until
the
Indebtedness is irrevocably paid in full, Guarantors waive any and all rights
to
be subrogated to the position of Bison or to have the benefit of any lien,
security interest or other guaranty now or later held by Bison for the
Indebtedness or to enforce any remedy which Bison now or later has against
Obligor or any other person. Until the Indebtedness is irrevocably paid in
full,
Guarantors shall have no right of reimbursement, indemnity, contribution or
other right of recourse to or with respect to Obligor, each other Guarantor
or
any other person. Guarantors agree to indemnify and hold harmless Bison from
and
against any and all claims, actions, damages, costs and expenses, including,
without limitation, reasonable attorneys' fees, incurred by Bison in connection
with any Guarantor's exercise of any right of subrogation, contribution,
indemnification or recourse with respect to this Guaranty. Bison has no duty
to
enforce or protect any rights which any Guarantor may have against Obligor
or
any other person and each Guarantor assumes full responsibility for enforcing
and protecting these rights.
10. Notwithstanding
any provision of the preceding paragraph or anything else in this Guaranty
to
the contrary, if any Guarantor is or becomes an "insider"
or
"affiliate"
(as
defined in Section 101 of the Federal Bankruptcy Code, as it may be amended)
with respect to Obligor, then that undersigned irrevocably and absolutely waives
any and all rights of subrogation, contribution, indemnification, recourse,
reimbursement and any similar rights against Obligor (or any other guarantor)
with respect to this Guaranty, whether such rights arise under an express or
implied contract or by operation of law unless and until the Indebtedness is
irrevocably paid in full. It is the intention of the parties that such Guarantor
shall not be (or be deemed to be) a "creditor"
(as
defined in Section 101 of the Federal Bankruptcy Code, as it may be amended)
of
Obligor (or any other guarantor) by reason of the existence of this Guaranty
in
the event that Obligor becomes a debtor in any proceeding under the Federal
Bankruptcy Code. This waiver is given to induce Bison to enter into certain
written contracts with Obligor included in the Indebtedness. Guarantors warrant
and agree that none of Bison's rights, remedies or interests shall be directly
or indirectly impaired because of any Guarantor's status as an "insider"
or
"affiliate"
of
Obligor, and each Guarantor shall take any action, and shall execute any
document, which Bison may request in order to effectuate this warranty to
Bison.
11. If
any
Indebtedness is guaranteed by two or more Guarantors, the obligation of each
Guarantor shall be several and also joint, each with all and also each with
any
one or more of the others, and may be enforced at the option of Bison against
each severally, any two or more jointly, or some severally and some jointly.
Bison, in its sole discretion, may release any one or more of Guarantors for
any
consideration which it deems adequate, and may fail or elect not to prove a
claim against the estate of any bankrupt, insolvent, incompetent or deceased
Guarantor; and after that, without notice to any other Guarantor, Bison may
extend or renew any or all Indebtedness and may permit Obligor to incur
additional Indebtedness, without affecting in any manner the unconditional
obligation of the remaining Guarantors. This action by Bison shall not, however,
be deemed to affect any right to contribution which may exist among the
Guarantors.
-4-
12. In
the
event that, notwithstanding the waivers given herein, any Guarantor may lawfully
terminate its obligation under this Guaranty as to future Indebtedness (except
as provided below), such Guarantor may do so by (and only by) delivering written
notice of termination to an officer of Bison and receiving from an officer
of
Bison written acknowledgement of delivery; provided, the termination shall
not
be effective until the opening of business on the fifth (5th) day following
written acknowledgement of delivery. Any such termination shall not affect
in
any way the unconditional obligations of any other Guarantor, whether or not
the
termination is known to such remaining persons. Likewise, any such termination
shall not affect in any way the unconditional obligations of the terminating
Guarantor as to any Indebtedness existing at the effective date of termination
or any Indebtedness created after that pursuant to any commitment or agreement
of Bison or any Obligor loan with Bison existing at the effective date of
termination (whether advances or readvances by Bison are optional or
obligatory), or any modifications, extensions or renewals of any of this
Indebtedness, whether in whole or in part, and as to all of this Indebtedness
and modifications, extensions or renewals of it, this Guaranty shall continue
effective until the same shall have been fully paid. Bison has no duty to give
notice of termination by any Guarantor to any remaining Guarantor. Guarantors
shall indemnify Bison against all claims, damages, costs and expenses,
including, without limitation, reasonable attorneys' fees and costs, incurred
by
Bison in connection with any suit, claim or action against Bison arising out
of
any modification or termination of any Obligor loan or any refusal by Bison
to
extend additional credit in connection with the termination of this
Guaranty.
13. Notwithstanding
any prior revocation, termination, surrender or discharge of this Guaranty
(or
of any lien, pledge or security interest securing this Guaranty) in whole or
in
part, the effectiveness of this Guaranty, and of all liens, pledges and security
interests securing this Guaranty, shall automatically continue or be reinstated,
as the case may be, in the event that (a) any payment received or credit given
by Bison in respect of the Indebtedness is returned, disgorged or rescinded
as a
preference, impermissible setoff, fraudulent conveyance, diversion of trust
funds, or otherwise under any applicable state or federal law, including,
without limitation, laws pertaining to bankruptcy or insolvency, in which case
this Guaranty, and all liens, pledges and security interests securing this
Guaranty, shall be enforceable against Guarantors as if the returned, disgorged
or rescinded payment or credit had not been received or given by Bison, and
whether or not Bison relied upon this payment or credit or changed its position
as a consequence of it; or (b) any liability is imposed, or sought to be
imposed, against Bison relating to the environmental condition of, or the
presence of hazardous or toxic substances on, in or about, any property given
as
collateral to Bison by Obligor, whether this condition is known or unknown,
now
exists or subsequently arises (excluding only conditions which arise after
any
acquisition by Bison of any such property, by foreclosure, in lieu of
foreclosure or otherwise, to the extent due to the wrongful act or omission
of
Bison), in which case this Guaranty, and all liens, pledges and security
interests securing this Guaranty, shall be enforceable against Guarantors to
the
extent of all liability, costs and expenses (including, without limitation,
reasonable attorneys' fees and costs) incurred by Bison as the direct or
indirect result of any environmental condition or hazardous or toxic substances.
In the event of continuation or reinstatement of this Guaranty and the liens,
pledges and security interests securing it, Guarantors agree upon demand by
Bison to execute and deliver to Bison those documents which Bison reasonably
determines are appropriate to further evidence (in the public records or
otherwise) this continuation or reinstatement, although the failure of
Guarantors to do so shall not affect in any way the reinstatement or
continuation. If any Guarantor does not execute and deliver to Bison upon demand
such documents, Bison and each Bison officer is irrevocably appointed (which
appointment is coupled with an interest) the true and lawful attorney-in-fact
of
such Guarantor (with full power of substitution) to execute and deliver such
documents in the name and on behalf of such Guarantor. For purposes of this
Guaranty, "environmental
condition"
includes, without limitation, conditions existing with respect to the surface
or
ground water, drinking water supply, land surface or subsurface and the air;
and
"hazardous
or toxic substances"
shall
include any and all substances now or subsequently determined by any federal,
state or local authority to be hazardous or toxic, or otherwise regulated by
any
of these authorities.
-5-
14. Guarantors
waive any right to require Bison to: (a) proceed against any person, including,
without limitation, Obligor; (b) proceed against or exhaust any security held
from Obligor or any other person; (c) pursue any other remedy in Bison's power;
or (d) make any presentments or demands for performance, or give any notices
of
nonperformance, protests, notices of protest, or notices of dishonor in
connection with any obligations or evidences of Indebtedness held by Bison
as
security, in connection with any other obligations or evidences of indebtedness
which constitute in whole or in part Indebtedness, or in connection with the
creation of new or additional Indebtedness.
15. Guarantors
authorize Bison, either before or after termination of this Guaranty as
contemplated by Section 12,
without
notice to or demand on any Guarantor and without affecting any Guarantor's
liability under this Guaranty, from time to time to: (a) apply any security
and direct the order or manner of sale of it, including, without limitation,
a
nonjudicial sale permitted by or, if applicable, pursuant to the terms of the
controlling security agreement, mortgage or deed of trust, as Bison in its
discretion may determine; (b) release or substitute any one or more of the
endorsers or any other guarantors of the Indebtedness; and (c) apply payments
received by Bison from Obligor to any indebtedness of Obligor to Bison, in
such
order as Bison shall determine in its sole discretion, whether or not this
indebtedness is covered by this Guaranty, and Guarantors waive any provision
of
law regarding application of payments which specifies otherwise. Bison may
without notice assign this Guaranty in whole or in part. Upon Bison's request,
each Guarantor agrees to provide to Bison copies of each Guarantor's financial
statements as and when Obligor is required to provide copies of its financial
statements under the terms of the Purchase Agreement.
16. Guarantors
waive any defense based upon or arising by reason of: (a) any disability or
other defense of Obligor or any other person; (b) the cessation or limitation
from any cause whatsoever, other than final and irrevocable payment in full
of
the Indebtedness; (c) any lack of authority of any officer, director, partner,
agent or any other person acting or purporting to act on behalf of Obligor
which
is a corporation, partnership or other type of entity, or any defect in the
formation of Obligor; (d) the application by Obligor of the proceeds of any
Indebtedness for purposes other than the purposes represented by Obligor to
Bison or intended or understood by Bison or any Guarantor; (e) any act or
omission by Bison which directly or indirectly results in or aids the discharge
of Obligor or any Indebtedness by operation of law or otherwise; or (f) any
modification of the Indebtedness, in any form whatsoever including, without
limitation, any modification made after effective termination, and including,
without limitation, the renewal, extension, acceleration or other change in
time
for payment of any Indebtedness, or other change in the terms of the
Indebtedness, including, without limitation, increase or decrease of the
interest rate.
-6-
17. Guarantors
waive any and all rights and provisions of California Code of Civil Procedure
sections 580a, 580b, 580d and 726, including, but not limited to any provision
thereof that: (i) may limit the time period for Bison to commence a lawsuit
against Obligor or Guarantors to collect any Indebtedness owing by Obligor
or
Guarantors to Bison; (ii) may entitle Obligor or Guarantors to a judicial or
nonjudicial determination of any deficiency owed by such Obligor or Guarantors
to Bison, or to otherwise limit Bison's right to collect a deficiency based
on
the fair market value of such real property security; (iii) may limit Bison's
right to collect a deficiency judgment after a sale of any real property
securing the Indebtedness; (iv) may require Bison to take only one action to
collect the Indebtedness or that may otherwise limit the remedies available
to
Bison to collect the Indebtedness. This waiver means, among other things: (i)
Bison may collect from the Guarantors without first foreclosing on any real
or
personal property collateral pledged by the Obligor; and (ii) if Bison
forecloses on any real property collateral pledged by the Obligor: (A) the
amount of the Indebtedness may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is worth
more
than the sale price, and (B) Bison may collect from the Guarantors even if
Bison, by foreclosing on the real property collateral, has destroyed any right
the Guarantors may have to collect from the Obligor. This is an unconditional
and irrevocable waiver of any rights and defenses the Guarantor may have because
any of the Indebteness is secured by real property. These rights and defenses
include, but are not limited to, any rights or defenses based upon Section
580a,
580b, 580d, or 726 of the California Code of Civil Procedure.
Each
Guarantor understands that, absent this waiver, Bison's election of remedies,
including but not limited to its decision to proceed to nonjudicial foreclosure
on any real property securing the Indebtedness, could preclude Bison from
obtaining a deficiency judgment against Obligor and such Guarantor pursuant
to
California Code of Civil Procedure sections 580a, 580b, 580d or 726 and could
also destroy any subrogation rights which such Guarantor has against Obligor.
Each Guarantor further understands that, absent this waiver, California law,
including, without limitation, California Code of Civil Procedure sections
580a,
580b, 580d or 726, could afford Guarantors one or more affirmative defenses
to
any action maintained by Bison against Guarantors on this Guaranty.
18. Guarantors
waive all rights and defenses arising out of an election of remedies by Bison
even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for a guaranteed obligation, has destroyed the undersigned's
rights of subrogation and reimbursement against Obligor by the operation of
Section 580d of the Code of Civil Procedure or otherwise.
19. WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN
THIS
GUARANTY, EACH GUARANTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS
PERMITTED BY LAW, ANY AND ALL BENEFITS, DEFENSES TO PAYMENT OR PERFORMANCE,
OR
ANY RIGHT TO PARTIAL OR COMPLETE EXONERATION ARISING DIRECTLY OR INDIRECTLY
UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE SECTIONS 2787 TO 2855
INCLUSIVE,
AND ALL SUCCESSOR SECTIONS.
-7-
20. Guarantors
acknowledge and agree that this is a knowing and informed waiver of Guarantors'
rights as discussed above and that Bison is relying on this waiver in extending
credit to Obligor.
21. Subject
to the limitations and requirements set forth in the Purchase Agreement,
Guarantors acknowledge that Bison has the right to sell, assign, transfer,
negotiate, or grant participations in all or any part of the Indebtedness and
any related obligations, including, without limitation, this Guaranty. In
connection with that right, Bison may disclose any documents and information
which Bison now or later acquires relating to any Guarantor and this Guaranty,
whether furnished by Obligor, any Guarantor or otherwise. Guarantors further
agree that Bison may disclose these documents and information to Obligor.
Guarantors agree that Bison may provide information relating to this Guaranty
or
to such Guarantors to Bison's parent, affiliates, subsidiaries and service
providers. All disclosures permitted under this Section shall be made subject
to
arrangements or agreements to hold such documents and information in confidence
except for any disclosure required by law or regulation.
22. The
total
obligation under this Guaranty shall be unlimited, and this obligation shall
include any and all costs and expenses of any kind, including, without
limitation, reasonable attorneys' fees and costs, incurred by Bison at any
time(s) for any reason in enforcing any of the duties and obligations of any
Guarantor under this Guaranty or otherwise incurred by Bison in any way
connected with this Guaranty, the Indebtedness or any other guaranty of the
Indebtedness (including, without limitation, reasonable attorneys' fees and
other expenses incurred in any suit involving the conduct of Bison, Obligor
or
any Guarantor). All of these costs and expenses shall be payable immediately
by
Guarantors when incurred by Bison, without demand, and until paid shall bear
interest at the highest per annum rate applicable to any of the Indebtedness,
but not in excess of the maximum rate permitted by law. Any reference in this
Guaranty to attorneys' fees shall be deemed a reference to fees, charges, costs
and expenses of both in-house and outside counsel and paralegals, whether or
not
a suit or action is instituted, and to court costs if a suit or action is
instituted, and whether attorneys' fees or court costs are incurred at the
trial
court level, on appeal, in a bankruptcy, administrative or probate proceeding
or
otherwise. Any reference (a) to this Guaranty being secured by certain
collateral shall not be deemed to limit the total obligation of any Guarantor
under this Guaranty or (b) to this Guaranty being limited in any respect shall
not be deemed to limit the total obligation of any Guarantor under any prior
or
subsequent guaranty given by any Guarantor to Bison.
23. Guarantors
unconditionally and irrevocably waive each and every defense and setoff of
any
nature which, under principles of guaranty or otherwise, would operate to impair
or diminish in any way the obligation of any Guarantor under this Guaranty,
and
acknowledge that each such waiver is by this reference incorporated into each
security agreement, collateral assignment, pledge and/or other document from
any
Guarantor now or later securing this Guaranty and/or the Indebtedness, and
acknowledge that as of the date of this Guaranty no such defense or setoff
exists. Guarantors acknowledge that the effectiveness of this Guaranty is
subject to no conditions of any kind.
-8-
24. This
Guaranty shall remain effective with respect to successive transactions which
shall either continue the Indebtedness, increase or decrease it, or from time
to
time create new Indebtedness after all or any prior Indebtedness has been
satisfied, until this Guaranty is terminated in the manner and to the extent
provided above.
25. Guarantors
warrant and agree that each of the waivers set forth above are made with each
Guarantor's full knowledge of their significance and consequences, and that
under the circumstances, the waivers are reasonable and not contrary to public
policy or law. If any of these waivers are determined to be contrary to any
applicable law or public policy by a court of competent jurisdiction by final
and nonappealable judgment, these waivers shall be effective only to the extent
permitted by law.
26. This
Guaranty, together with the Purchase Agreement and the other Related Agreements,
contain the entire agreement of the parties with respect to the subject matter
hereof, and supersede all prior agreements, representation and warranties,
written or oral, with respect thereto.
27. No
waiver, consent, modification or change of the terms of this Guaranty shall
bind
any Guarantor or Bison unless in writing and signed by the waiving party or
an
authorized officer of the waiving party, and then this waiver, consent,
modification or change shall be effective only in the specific instance and
for
the specific purpose given. This Guaranty shall inure to the benefit of Bison
and its successors and assigns. This Guaranty shall be binding on each Guarantor
and such Guarantor's successors and assigns including, without limitation,
any
debtor in possession or trustee in bankruptcy for any Guarantor. Guarantors
have
knowingly and voluntarily entered into this Guaranty in good faith for the
purpose of inducing Bison to extend credit or make other financial
accommodations to Obligor, and Guarantors acknowledge that the terms of this
Guaranty are reasonable. If any provision of this Guaranty is unenforceable
in
whole or in part for any reason, the remaining provisions shall continue to
be
effective.
28. This
Guaranty may be executed in two or more counterparts and by facsimile, each
of
which shall be deemed an original, but all of which together shall constitute
one instrument.
29. Governing
Law.
THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA APPLICABLE
TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT REGARD TO THE CHOICE
OF
LAW OR CONFLICTS OF LAW PROVISIONS THEREOF).
30. Jurisdiction,
Etc.
(a) Each
of
the parties hereby consents and agrees that all actions, suits or other
proceedings arising under or in connection with this Guaranty shall be tried
and
litigated in state or federal courts located in Los Angeles, California, which
courts shall have exclusive jurisdiction to hear and determine any and all
claims, controversies and disputes arising out of or related to this Guaranty.
Notwithstanding the foregoing, nothing contained in this Section shall preclude
Bison from bringing any action, suit or other proceeding in the courts of any
other location to enforce its rights hereunder.
-9-
(b) Each
of
the parties hereby (i) irrevocably submits to the jurisdiction of any such
court
and consents in advance to such jurisdiction in any action, suit or other
proceeding commenced in any such court, (ii) waives any right it may have to
assert the doctrine of forum
non conveniens
or any
objection that such person may have based upon lack of personal jurisdiction
or
improper venue, and (iii) consents to the granting of such legal or equitable
relief as is deemed appropriate by such court. Each of the parties hereby waives
personal service of the summons, complaint or other process issued in any such
action, suit or other proceeding and agrees that service of such summons,
complaint and other process may be made by registered or certified mail
addressed to such party at the address set forth in the Purchase Agreement
and
that service so made shall be deemed completed upon the earlier of such person's
actual receipt thereof or five (5) days after deposit in the United States
mail,
proper postage prepaid.
(c) To
the
extent permitted under the applicable laws of any such jurisdiction, the
Guarantors hereby waive, in respect of any such action, suit or other
proceeding, the jurisdiction of any other court or courts that now or hereafter,
by reason of such person's present or future domicile, or otherwise, may be
available to it.
[Signature
Page Follows]
-10-
IN
WITNESS WHEREOF, each Guarantor has executed and delivered this Guaranty as
of
the day and year first written above.
|
General Finance Corporation,
a Delaware corporation
|
|
|
By:
|
|
|
Name:
|
Xxxx X. Xxxxxxx
|
|
Title
|
Chief Operating Officer
|
|
GFN U.S. Australasia Holdings, Inc.,
a Delaware corporation
|
|
|
By:
|
|
|
Name:
|
Xxxx X.
Xxxxxxx
|
|
Title
|
Director
|
|
GFN Australasia Holdings Pty Ltd,
an Australian corporation
|
|
|
By:
|
|
|
Name:
|
|
|
Title
|
|
-11-
