Contract
THIS
INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN
THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT DATED AS OF AUGUST 2, 2006 (AS AMENDED BY THE FIRST
AMENDMENT THERETO DATED AUGUST 23, 2007 AND THE SECOND AMENDMENT THERETO DATED
AS OF AUGUST 23, 2008, THE "SUBORDINATION
AGREEMENT")
AMONG
LAMINAR DIRECT CAPITAL, L.L.C. (AS SUCCESSOR TO LAMINAR DIRECT CAPITAL L.P.)
L.P., PAC-VAN, INC. (THE "COMPANY")
AND
LASALLE BANK NATIONAL ASSOCIATION (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS,
THE
"SENIOR
AGENT"),
TO
THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANY PURSUANT TO THAT
CERTAIN AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST 23, 2007 AMONG
THE COMPANY, THE SENIOR AGENT AND THE SENIOR LENDERS FROM TIME TO TIME PARTY
THERETO (THE "LOAN
AGREEMENT"),
AND
THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE LOAN AGREEMENT) AS SUCH LOAN
AGREEMENT AND OTHER LOAN DOCUMENTS MAY BE AMENDED, RESTATED, SUPPLEMENTED OR
OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE
INDEBTEDNESS THEREUNDER AS CONTEMPLATED BY THE SUBORDINATION AGREEMENT; AND
EACH
HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO
BE
BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
AMENDED
AND RESTATED
CONTINUING
UNCONDITIONAL GUARANTY
This
AMENDED AND RESTATED CONTINUING UNCONDITIONAL GUARANTY dated as of October
1,
2008 (the "Guaranty"),
is
executed by GFN
NORTH AMERICA CORP, Delaware
corporation (the "Guarantor"),
to
and for the benefit of LAMINAR
DIRECT CAPITAL, L.L.C., a
Delaware limited liability company, in its capacity as collateral agent (the
"Agent")
for
the Lenders under the Investment Agreement (as hereinafter defined), whose
address is 00000 Xxxxxxxx Xx., Xxxxx 000 Xxxxxxx, Xxxxx 00000, and the Lenders
party to the Investment Agreement. Capitalized terms used but not defined herein
shall have the meanings assigned in the Investment Agreement.
WHEREAS,
the Lenders have made certain financial accommodations to Pac-Van, Inc., an
Indiana corporation (the "Borrower"),
whose
address is 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, arising
under
and pursuant to that certain Investment Agreement made and entered into as
of
August 2, 2006, among the Borrower (as successor in interest to PVI Acquisition
Corporation, an Indiana corporation), Mobile Office Acquisition Corp., a
Delaware corporation ("MOAC"),
the
Lenders from time to time party thereto and the Agent (as successor to Laminar
Direct Capital L.P.) (as amended by the First Amendment to Investment Agreement
and Waiver dated as of August 23, 2007 and the Second Amendment to Investment
Agreement dated as of August 23, 2008, the "Original
Investment Agreement")
and as
evidenced by the Notes;
WHEREAS,
in connection with the transactions contemplated by the Original Investment
Agreement and as a condition precedent to the effectiveness of the Original
Investment Agreement and the obligations of the Lenders to make the financial
accommodations to the Borrower thereunder, the Lenders required that MOAC,
which
as of the date thereof was the sole shareholder of the Borrower, execute and
deliver to the Agent, for the ratable benefit of the lenders, that certain
Continuing Unconditional Guaranty dated as of August 2, 2006 (the "Original
Subdebt Parent Guaranty");
WHEREAS,
Pursuant to the Parent Merger Agreement, MOAC has agreed to consummate a merger
(the "Parent
Merger")
with
the Guarantor in which the Guarantor will be the surviving corporation and
as a
result of which the Guarantor shall (i) assume all of the obligations and
liabilities of MOAC, including becoming a party to and assuming all of the
obligations of MOAC under the Original Subdebt Parent Guaranty and the other
Loan Documents and (ii) acquire all of the assets of MOAC, including all of
the
issued and outstanding Capital Stock of the Borrower.
WHEREAS,
in connection with the transactions contemplated by the Parent Merger Agreement,
the parties to the Original Investment Agreement have agreed to amend and
restate the Original Investment Agreement in the form of that certain Amended
and Restated Investment Agreement dated as of the date hereof by and among
the
Borrower, the Guarantor, the Lenders from time to time party thereto and the
Agent (as from time to time amended, modified, extended, renewed, refinanced,
or
restated, the "Investment
Agreement");
WHEREAS,
as a result of the Parent Merger, the Guarantor has become the parent of the
Borrower, and desires the Lenders to consent to the Parent Merger and to
continue to extend credit to the Borrower pursuant to the Investment
Agreement;
WHEREAS,
the extension or continued extension of credit, as aforesaid, by the Lenders
is
necessary and desirable to the conduct and operation of the business of the
Borrower and will inure to the financial benefit of the Guarantor;
WHEREAS,
in connection with the transactions contemplated by the Parent Merger Agreement,
and as a condition precedent to the Agent's and the Lenders' consent to the
Parent Merger, entering into the Investment Agreement and continued extension
and continuation of credit by the Lenders to the Borrower under the Investment
Agreement and the Notes, the Lenders require that Guarantor affirm its
obligations under the Original Parent Guaranty for the ratable benefit of the
Lenders, and in connection therewith the parties wish to fully amend and restate
the Original Subdebt Parent Guaranty in the form of this Guaranty and
WHEREAS,
this Guaranty is given in replacement of and in substitution for the Original
Subdebt Parent Guaranty.
NOW,
THEREFORE, FOR VALUE RECEIVED, it is agreed that the preceding provisions and
recitals are an integral part hereof and that this Guaranty shall be construed
in light thereof, and in consideration of advances, credit or other financial
accommodation heretofore afforded, concurrently herewith being afforded or
hereafter to be afforded to the Borrower by the Lenders, the Guarantor hereby
unconditionally and absolutely guarantees to the Lenders or other person paying
or incurring the same, irrespective of the validity, regularity or
enforceability of any instrument, writing, arrangement or credit agreement
relating to or the subject of any such financial accommodation, the prompt
payment in full of: (a) the Subdebt Obligations in full when due (whether stated
at maturity, as a mandatory prepayment, by acceleration or otherwise, strictly
in accordance with the terms thereof, plus
(b) all
costs, legal expenses and attorneys’ and paralegals’ fees of every kind
(including those costs, expenses and fees of attorneys and paralegals who may
be
employees of the Lenders, their respective parent or affiliates), paid or
incurred by the Lenders in endeavoring to collect all or any part of the Subdebt
Obligations, or in enforcing their rights in connection with any collateral
therefor, or in enforcing this Guaranty, or in defending against any defense,
counterclaim, setoff or crossclaim based on any act of commission or omission
by
the Lenders with respect to the foregoing indebtedness, any collateral therefor,
or in connection with any Repayment Claim (as hereinafter defined),
plus
(c)
interest on the foregoing from and after demand from the Agent to the Guarantor
for payment of the foregoing, at a floating per annum rate of interest equal
to
four percent (4.00%) over the Prime Rate (as hereinafter defined) (collectively,
the "Guaranteed
Debt").
In
addition, the Guarantor hereby unconditionally and absolutely guarantees to
the
Lenders the prompt, full and faithful performance and discharge by the Borrower
of each of the terms, conditions, agreements, representations and warranties
on
the part of the Borrower contained in any agreement, or in any modification
or
addenda thereto or substitution thereof in connection with any of the Guaranteed
Debt.
As
used
herein, "Prime Rate" shall mean the floating per annum rate of interest which
at
any time, and from time to time, shall be most recently announced by LaSalle
Bank National Association as its Prime Rate, which is not intended to be the
lowest or most favorable rate of interest at any one time. The effective date
of
any change in the Prime Rate shall for purposes hereof be the date the Prime
Rate is changed by LaSalle Bank National Association. The Agent shall not be
obligated to give notice of any change in the Prime Rate. The Prime Rate shall
be computed on the basis of a year consisting of 360 days and shall be paid
for
the actual number of days elapsed.
Guarantor
hereby represents and warrants to the Agent and each Lender that Guarantor
has
not engaged in any activities other than acting as a holding company for the
Borrower and transactions incidental thereto and holds no assets other than
all
of the issued and outstanding capital stock of the Borrower.
Guarantor
shall not, directly or indirectly, (i) enter into any agreement (including
any
agreement for incurrence or assumption of debt, any purchase, sale, lease or
exchange of any property or the rendering of any service), between itself and
any other Person (as defined in the Investment Agreement), other than the
Holdback Note, the Loan
Documents to which it is a party, the Senior Transaction Documents to which
it
is a party or
as
otherwise approved by Agent in writing (collectively, the "Guarantor
Documents"),
(ii)
engage in any business or conduct any activity (including the making of any
investment or payment) or transfer any of its assets, other than the making
of
investments in the Borrower existing on the date hereof, the performance of
its
obligations under the Guarantor Documents in accordance with the terms thereof
and the performance of ministerial activities and the payment of taxes and
administrative fees or (iii) consolidate or merge with or into any other Person
other than pursuant to the Parent Merger. Guarantor shall preserve, renew and
keep its existence in full force and effect. The provisions of this paragraph
shall not preclude Guarantor from engaging in any other activities reasonably
incidental to its investment in the Borrower.
In
case
of any bankruptcy, reorganization, debt arrangement or other proceeding under
any bankruptcy or insolvency law, any dissolution, liquidation or receivership
proceeding is instituted by or against either the Borrower or the Guarantor,
or
any default by the Guarantor of any of the covenants, terms and conditions
set
forth herein, all of the Guaranteed Debt shall, without notice to anyone,
immediately become due or accrued and shall be payable by the Guarantor. The
Guarantor hereby expressly and irrevocably: (a) waives, to the fullest extent
possible, on behalf of itself and its successors and assigns (including any
surety) and any other person, any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification, set
off
or to any other rights that could accrue to a surety against a principal, a
guarantor against a maker or obligor, an accommodation party against the party
accommodated, a holder or transferee against a maker, or to the holder of a
claim against any person, and which the Guarantor may have or hereafter acquire
against any person in connection with or as a result of the Guarantor’s
execution, delivery and/or performance of this Guaranty, or any other documents
to which the Guarantor is a party or otherwise; (b) waives any "claim" (as
such
term is defined in the United States Bankruptcy Code) of any kind against the
Borrower, and further agrees that it shall not have or assert any such rights
against any person (including any surety), either directly or as an attempted
set off to any action commenced against the Guarantor by the Lenders or any
other person; and (c) acknowledges and agrees (i) that foregoing waivers are
intended to benefit the Lenders and shall not limit or otherwise affect the
Guarantor’s liability hereunder or the enforceability of this Guaranty, (ii)
that the Borrower and its successors and assigns are intended third party
beneficiaries of the foregoing waivers, and (iii) the agreements set forth
in
this paragraph and the Lenders’ rights under this paragraph shall survive
payment in full of the Guaranteed Debt.
Subject
to the terms of the Intercreditor Agreement (as defined in the Investment
Agreement), (a) all
dividends or other payments received by the Lenders on account of the Guaranteed
Debt, from whatever source derived, shall be taken and applied by the Agent
toward the payment of the Guaranteed Debt and in such order of application
as
the Agent may, in its sole discretion, from time to time elect
and (b)
the
Agent
shall have the exclusive right to determine how, when and what application
of
payments and credits, if any, whether derived from the Borrower or any other
source, shall be made on the Guaranteed Debt and such determination shall be
conclusive upon the Guarantor.
This
Guaranty shall in all respects be continuing, absolute and unconditional, and
shall remain in full force and effect with respect to the Guarantor until:
(i)
written notice from the Agent to the Guarantor by United States certified mail
of its discontinuance as to the Guarantor; or (ii) until all Guaranteed Debt
created or existing before receipt of either such notice shall have been fully
paid. In the event of the dissolution of the Guarantor, this Guaranty shall
continue as to all of the Guaranteed Debt theretofore incurred by the Borrower
even though the Guaranteed Debt is renewed or the time of maturity of the
Borrower’s obligations is extended without the consent of the successors or
assigns of the Guarantor.
No
compromise, settlement, release or discharge of, or indulgence with respect
to,
or failure, neglect or omission to enforce or exercise any right against any
other guarantor shall release or discharge the Guarantor.
The
Guarantor’s liability under this Guaranty shall in no way be modified, affected,
impaired, reduced, released or discharged by any of the following (any or all
of
which may be done or omitted by the Lenders in their sole discretion, without
notice to anyone and irrespective of whether the Guaranteed Debt shall be
increased or decreased thereby): (a) any acceptance by the Lenders of any new
or
renewal note or notes of the Borrower, or of any security or collateral for,
or
other guarantors or obligors upon, any of the Guaranteed Debt; (b) any
compromise, settlement, surrender, release, discharge, renewal, refinancing,
extension, alteration, exchange, sale, pledge or election with respect to the
Guaranteed Debt, or any note by the Borrower, or with respect to any collateral
under Section 1111 or take any action under Section 364, or any other section
of
the United States Bankruptcy Code, now existing or hereafter amended, or other
disposition of, or substitution for, or indulgence with respect to, or failure,
neglect or omission to realize upon, or to enforce or exercise any liens or
rights of appropriation or other rights with respect to, the Guaranteed Debt
or
any security or collateral therefor or any claims against any person or persons
primarily or secondarily liable thereon; (c) any failure, neglect or omission
to
perfect, protect, secure or insure any of the foregoing security interests,
liens, or encumbrances of the properties or interests in properties subject
thereto; (d) the granting of credit from time to time by the Lenders to the
Borrower in excess of the amount, if any, to which the right of recovery under
this Guaranty is limited (which is hereby expressly authorized); (e) any change
in the Borrower’s name or the merger of the Borrower into another
corporation
effective as of the date hereof);
(f) any
act of commission or omission of any kind or at any time upon the part of the
Lenders with respect to any matter whatsoever, other than the execution and
delivery by the Agent to the Guarantor of an express written release or
cancellation of this Guaranty; or (g) the payment in full of the Guaranteed
Debt. The Guarantor hereby consents to all acts of commission or omission of
the
Lenders set forth above and agrees that the standards of good faith, diligence,
reasonableness and care shall be measured, determined and governed solely by
the
terms and provisions hereof.
In
order
to hold the Guarantor liable hereunder, there shall be no obligation on the
part
of the Lenders, at any time, to resort for payment from the Borrower or to
anyone else, or to any collateral, security, property, liens or other rights
and
remedies whatsoever, all of which are hereby expressly waived by the
Guarantor.
The
Guarantor hereby expressly waives diligence in collection or protection,
presentment, demand or protest or in giving notice to anyone of the protest,
dishonor, default, or nonpayment or of the creation or existence of any of
the
Guaranteed Debt or of any security or collateral therefor or of the acceptance
of this Guaranty or of extension of credit or indulgences hereunder or of any
other matters or things whatsoever relating hereto.
The
Guarantor waives any and all defenses, claims and discharges of the Borrower,
or
any other obligor, pertaining to the Guaranteed Debt, except the defense of
discharge by payment in full. Without limiting the generality of the foregoing,
the Guarantor will not assert, plead or enforce against the Lenders any defense
of waiver, release, discharge in bankruptcy, statute of limitations, res
judicata, statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to the
Borrower or any other person liable in respect of any of the Guaranteed Debt,
or
any setoff available against the Lenders to the Borrower or any such other
person, whether or not on account of a related transaction. The Guarantor
expressly agrees that the Guarantor shall be and remain liable for any
deficiency remaining after foreclosure of any mortgage or security interest
securing the Guaranteed Debt, whether or not the liability of the Borrower
or
any other obligor for such deficiency is discharged pursuant to statute or
judicial decision.
To
secure
payment of the Guaranteed Debt, MOAC entered into a Pledge Agreement dated
as of
August 2, 2006 in favor of the Agent. In continuation of such security, and
in
replacement of such Pledge Agreement, Guarantor has executed an Amended and
Restated Pledge Agreement of even date herewith in favor of Agent, and the
Guarantor thereby and hereby grants to the Lenders a security interest in all
property of the Guarantor delivered concurrently herewith or which is now,
or at
any time hereafter in transit to, or in the possession, custody, or control
of
the Lenders, and all proceeds of all such property. The Guarantor agrees that
the Lenders shall have the rights and remedies of a secured party under the
Uniform Commercial Code in effect in New York from time to time, with respect
to
all of the aforesaid property, including, without limitation thereof, the right
to sell or otherwise dispose of any such property. The Lenders may, without
demand or notice of any kind to anyone, apply or set off any balances, credits,
deposits, accounts, moneys or other indebtedness at any time credited by or
due
from the Lenders to the Guarantor against the amounts due hereunder and in
such
order of application as the Lenders may from time to time elect. Any
notification of intended disposition of any property required by law shall
be
deemed reasonably and properly given if given in the manner provided by the
applicable statute. The Guarantor hereby assigns and transfers to the Lenders
any and all cash, negotiable instruments, documents of title, chattel paper,
securities, certificates of deposit, deposit accounts other cash equivalents
and
other assets of the Guarantor in the possession or control of the Lenders for
any purpose.
THE
GUARANTOR WAIVES EVERY DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH
THE GUARANTOR MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE LENDERS
IN
ENFORCING THIS GUARANTY. AS FURTHER SECURITY, ANY AND ALL DEBTS AND LIABILITIES
NOW OR HEREAFTER ARISING AND OWING TO THE GUARANTOR BY THE BORROWER, OR TO
ANY
OTHER PARTY LIABLE TO THE LENDERS FOR THE GUARANTEED DEBT, ARE HEREBY
SUBORDINATED TO THE LENDERS’ CLAIMS AND ARE HEREBY ASSIGNED TO THE LENDERS. THE
GUARANTOR HEREBY AGREES THAT THE GUARANTOR MAY BE JOINED AS A PARTY DEFENDANT
IN
ANY LEGAL PROCEEDING (INCLUDING, BUT NOT LIMITED TO, A FORECLOSURE PROCEEDING)
INSTITUTED BY THE LENDERS AGAINST THE BORROWER. THE GUARANTOR AND THE LENDERS,
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY THE RIGHT TO TRIAL
BY
JURY WITH RESPECT TO ANY SUCH LEGAL PROCEEDING IN WHICH THE GUARANTOR AND THE
LENDERS ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE
LENDERS GRANTING ANY FINANCIAL ACCOMMODATION TO THE BORROWER AND ACCEPTING
THIS
GUARANTY.
Should
a
claim (a "Repayment
Claim")
be
made upon the Lenders at any time for repayment of any amount received by the
Lenders in payment of the Guaranteed Debt, or any part thereof, whether received
from the Borrower, the Guarantor pursuant hereto, or received by the Lenders
as
the proceeds of collateral, by reason of: (i) any judgment, decree or order
of
any court or administrative body having jurisdiction over the Lenders or any
of
its property; or (ii) any settlement or compromise of any such Repayment Claim
effected by the Lenders, in their sole discretion, with the claimant (including
the Borrower), the Guarantor shall remain liable to the Lenders for the amount
so repaid to the same extent as if such amount had never originally been
received by the Lenders, notwithstanding any termination hereof or the
cancellation of any note or other instrument evidencing any of the Guaranteed
Debt.
The
Lenders may, without notice to anyone, sell or assign the Guaranteed Debt,
or
any part thereof, or grant participations therein, and in any such event each
and every immediate or remote assignee or holder of, or participant in, all
or
any of the Guaranteed Debt shall have the right to enforce this Guaranty, by
suit or otherwise for the benefit of such assignee, holder, or participant,
as
fully as if herein by name specifically given such right herein, but the Agent
shall have an unimpaired right, prior and superior to that of any such assignee,
holder or participant, to enforce this Guaranty for the benefit of the Lenders,
as to any part of the Guaranteed Debt retained by the Lenders.
Unless
and until all of the Guaranteed Debt has been paid in full, no release or
discharge of any other person, whether primarily or secondarily liable for
and
obligated with respect to the Guaranteed Debt, or the institution of bankruptcy,
receivership, insolvency, reorganization, dissolution or liquidation proceedings
by or against the Guarantor or any other person primarily or secondarily liable
for and obligated with respect to the Guaranteed Debt, or the entry of any
restraining or other order in any such proceedings, shall release or discharge
the Guarantor, or any other guarantor of the indebtedness, or any other person,
firm or corporation liable to the Lenders for the Guaranteed Debt.
All
references herein to the Borrower and to the Guarantor, respectively, shall
be
deemed to include any successors or assigns, whether immediate or remote, to
such corporation.
If
this
Guaranty contains any blanks when executed by the Guarantor, the Agent is hereby
authorized, without notice to the Guarantor, to complete any such blanks
according to the terms upon which this Guaranty is executed by the Guarantor
and
is accepted by the Agent.
This
Guaranty has been delivered to the Agent at its offices in Houston, Texas and
the rights, remedies and liabilities of the parties shall be construed and
determined in accordance with the laws of the State of New York.
TO
INDUCE
THE LENDERS TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER, THE GUARANTOR
IRREVOCABLY AGREES THAT ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT
OR IN CONSEQUENCE OF THIS GUARANTY SHALL BE INSTITUTED AND LITIGATED ONLY IN
COURTS HAVING SITUS IN THE CITY OF NEW YORK, NEW YORK. THE GUARANTOR HEREBY
CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT
LOCATED AND HAVING ITS SITUS IN NEW YORK, NEW YORK, AND WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS. THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE
OF
ANY AND ALL PROCESS, AND CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE ADDRESS INDICATED
IN
THE AGENT’S RECORDS IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF
COURT OR OTHERWISE. FURTHERMORE, THE GUARANTOR WAIVES ALL NOTICES AND DEMANDS
IN
CONNECTION WITH THE ENFORCEMENT OF THE LENDERS’ RIGHTS HEREUNDER, AND HEREBY
CONSENTS TO, AND WAIVES NOTICE OF THE RELEASE, WITH OR WITHOUT CONSIDERATION,
OF
THE BORROWER OR ANY OTHER PERSON RESPONSIBLE FOR PAYMENT OF THE GUARANTEED
DEBT,
OR OF ANY COLLATERAL THEREFOR.
Wherever
possible each provision of this Guaranty shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Guaranty.
It
is
agreed that the Guarantor’s liability is independent of any other guaranties at
any time in effect with respect to all or any part of the Guaranteed Debt,
and
that the Guarantor’s liability hereunder may be enforced regardless of the
existence of any such other guaranties.
No
delay
on the part of the Agent in the exercise of any right or remedy shall operate
as
a waiver thereof, and no single or partial exercise by the Agent of any right
or
remedy shall preclude other or further exercise thereof, or the exercise of
any
other right or remedy. No modification, termination, discharge or waiver of
any
of the provisions hereof shall be binding upon the Agent, except as expressly
set forth in a writing duly signed and delivered on behalf of the
Agent.
The
execution, delivery and performance of this Guaranty by the Guarantor are within
the corporate powers of the Guarantor, have been duly authorized by all
necessary corporate action on the part of the Guarantor and do not and will
not
(i) require any consent or approval of the board of directors or
stockholders of
the
Guarantor which has not been obtained, (ii) violate any provision of the
articles of incorporation or bylaws of the Guarantor or of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Guarantor; (iii) require the
consent or approval of, or filing or registration with, any governmental body,
agency or authority, (iv)
result in a breach of or constitute a default under, or (v)
result
in
the imposition of any lien, charge or encumbrance upon any property of the
Guarantor pursuant to, any indenture or other agreement or instrument under
which the Guarantor is a party or by which it or any of its properties may
be
bound or affected
other
than liens, charges and encumbrances arising under the Loan
Documents.
The
officer or officers executing
and delivering this Guarantor for and on behalf of the Guarantor, is/are duly
authorized to so act. The Lenders, in extending financial accommodations to
the
Borrower, are expressly acting and relying upon the aforesaid representations
and warranties.
This
Guaranty: (i) is valid, binding and enforceable in accordance with its
provisions, and no conditions exist to the legal effectiveness of this Guaranty
as to the Guarantor; (ii) contains the entire agreement between the Guarantor
and the Lenders; (iii) is the final expression of their intentions; and (iv)
supersedes all negotiations, representations, warranties, commitments, offers,
contracts (of any kind or nature, whether oral or written) prior to or
contemporaneous with the execution hereof. No prior or contemporaneous
representations, warranties, understandings, offers or agreements of any kind
or
nature, whether oral or written, have been made by the Lenders or relied upon
by
the Guarantor in connection with the execution hereof.
The
term
"Guarantor" as used herein shall mean all parties signing this Guaranty, and
the
provisions hereof shall be binding upon the Guarantor, and each one of them,
and
all such parties, their respective successors and assigns shall be jointly
and
severally obligated hereunder. This Guaranty shall inure to the benefit of
the
Lenders and their successors and assigns.
IN
WITNESS WHEREOF, the Guarantor has executed and delivered this Continuing
Unconditional Guaranty as of the date set forth above.
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GFN
NORTH AMERICA CORP.,
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a
Delaware corporation
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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Title:
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Chief
Operating Officer
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