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EXHIBIT 10.5
GUARANTY
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.
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.
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.
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
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