EXHIBIT 10.3.2
EXECUTION COPY
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (this "Guaranty"), is made and
entered into as of February 17, 2006, by MOBILE MINI I, INC., an Arizona
corporation, MOBILE MINI HOLDINGS, INC., a Delaware corporation, DELIVERY DESIGN
SYSTEMS, INC., an Arizona corporation, MOBILE MINI, LLC, a Delaware limited
liability company, MOBILE MINI, LLC, a California limited liability company,
MOBILE MINI OF OHIO, LLC, a Delaware limited liability company, and MOBILE MINI
TEXAS LIMITED PARTNERSHIP, LLP, a Texas limited liability partnership (each,
together with each additional Subsidiary of Mobile Mini, Inc. which becomes a
party hereto, a "Guarantor" and collectively, the "Guarantors"), in favor of the
financial institutions and their successors and assigns (the "Lenders") which
may now be or hereafter become parties to the Loan Agreement (as defined below),
and DEUTSCHE BANK AG, NEW YORK BRANCH, for itself and as agent for the Lenders
(the "Agent"; and together with the Lenders, the "Guaranteed Parties").
RECITALS
WHEREAS, Mobile Mini, Inc., a Delaware corporation (the "Borrower"),
the parent of Guarantors, Fleet Capital Corporation ("Fleet"), as agent and as a
lender, and certain other lenders (together with Fleet, the "Existing Lenders"),
are parties to that certain Amended and Restated Loan and Security Agreement,
dated as of February 11, 2002, and Amended and Restated as of June 26, 2003, and
as further amended by that certain First Amendment to Amended and Restated Loan
and Security Agreement, dated as of January 14, 2004, that certain Second
Amendment to Amended and Restated Loan and Security Agreement, dated as of March
16, 2004 and that certain Third Amendment to Amended and Restated Loan and
Security Agreement dated as of August__, 2004 (collectively, the "Existing Loan
Agreement"), providing for the extension of credit by the Existing Lenders to
the Borrower; and
WHEREAS, in connection with the Existing Loan Agreement, the
Guarantors and Fleet executed that certain Guaranty Agreement dated as of
February 11, 2002 (as amended prior to the date hereof, the "Existing Guaranty
Agreement"); and
WHEREAS, pursuant to that certain Second Amended and Restated Loan and
Security Agreement dated as of even date hereof by and among the Borrower, the
Agent and the Lenders (as such agreement may be further amended, extended,
renewed, supplemented, restated or otherwise modified from time to time, the
"Loan Agreement"), the Existing Loan Agreement is being amended and restated to,
among other things, increase the maximum loan amount under the revolving credit
facility and replace Fleet as agent with the Agent; and
WHEREAS, as wholly-owned subsidiaries of Borrower, each Guarantor is
materially interested in the financial success of Borrower; and
WHEREAS, Borrower and Guarantors are involved in an inter-related
business enterprise and will benefit from the financing provided by the
Guaranteed Parties; and
WHEREAS, pursuant to the Loan Agreement, the parties hereto desire to
amend and restate the Existing Guaranty Agreement in its entirety as set forth
herein; and
WHEREAS, the Lenders have required, as a condition to the extension of
credit under the Loan Agreement, that the Guarantors execute and deliver this
Guaranty.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to extend credit under the Loan Agreement, each Guarantor agrees with
the Agent for its benefit and the ratable benefit of the Lenders as follows:
AGREEMENT
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Loan Agreement.
The following terms, as used in this Guaranty, shall have the following
meanings:
"GUARANTEED OBLIGATIONS" means the Obligations owing by
Borrower to the Guaranteed Parties, including interest that accrues after the
commencement of a bankruptcy or insolvency proceeding or which would have
accrued but for such proceeding and costs of collection and enforcement of such
Obligations.
1.2 CONSTRUCTION. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, and the term "including" is not limiting. The
words "hereof," "herein," "hereby," "hereunder," and other similar terms refer
to this Guaranty as a whole and not to any particular provision of this
Guaranty. Any reference herein to any of the Loan Documents includes any and all
alterations, amendments, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable. Neither this Guaranty nor any uncertainty or
ambiguity herein shall be construed or resolved against the Guaranteed Parties
or any Guarantor, whether under any rule of construction or otherwise. On the
contrary, this Guaranty has been reviewed by each Guarantor, each of the
Guaranteed Parties, and their respective counsel, and shall be construed and
interpreted according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of the Guaranteed Parties and Guarantors.
2. GUARANTEED OBLIGATIONS. Each Guarantor hereby irrevocably and
unconditionally, jointly and severally, guarantees to the Guaranteed Parties, as
and for its own debt, until final and indefeasible payment thereof has been
made, (a) payment of the Guaranteed Obligations, in each case when and as the
same shall become due and payable, whether at maturity, pursuant to a mandatory
prepayment requirement, by acceleration, or otherwise; it being the intent of
such Guarantor that the guaranty set forth herein shall be a guaranty of payment
and not a guaranty of collection; and (b) the punctual and faithful performance,
keeping, observance, and fulfillment by Borrower of all of the agreements,
conditions, covenants, and obligations of Borrower contained in the Loan
Agreement and in each of the other Loan Documents.
The liability of Guarantors under this Guaranty shall be joint and
several and may be enforced against each Guarantor without regard to whether
enforcement is sought or available against any other Guarantor.
3. CONTINUING GUARANTY. This Guaranty includes Guaranteed Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guaranteed Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guaranteed Obligations after prior
Guaranteed Obligations have been satisfied in whole or in part. Each Guarantor
hereby absolutely, knowingly, unconditionally, and expressly waives and agrees
not to assert any right it has under Section 2815 of the California Civil Code,
or otherwise, to revoke this Guaranty as to future indebtedness.
4. PERFORMANCE UNDER THIS GUARANTY. In the event that Borrower fails
to make any payment of any Guaranteed Obligations on or before the due date
thereof, or if Borrower shall fail to perform, keep, observe, or fulfill any
other obligation referred to in clause (b) of Section 2 hereof in the manner
provided in the Loan Agreement or the other Loan Documents, as applicable,
Guarantors immediately shall cause such payment to be made or each of such
obligations to be performed, kept, observed, or fulfilled.
5. PRIMARY OBLIGATIONS. This Guaranty is a primary and original
obligation of each Guarantor and is an absolute, unconditional, and continuing
guaranty of payment and performance which shall remain in full force and effect
without respect to future changes in conditions, including any change of law.
Each Guarantor agrees that it is directly, and jointly and severally with any
other Guarantor of the Guaranteed Obligations, liable to the Guaranteed Parties,
that the obligations of each Guarantor hereunder are independent of the
obligations of Borrower or any other Guarantor, and that a separate action may
be brought against such Guarantor whether such action is brought against
Borrower or any other Guarantor or whether Borrower or any such other guarantor
is joined in such action. Each Guarantor agrees that its liability hereunder
shall be immediate and shall not be contingent upon the exercise or enforcement
by the Guaranteed Parties of whatever remedies they may have against Borrower or
any other Guarantor, or the enforcement of any lien or realization upon any
security the Guaranteed Parties may at any time possess. Each Guarantor agrees
that any release which may be given by any Guaranteed Party to Borrower or any
other Guarantor shall not release such Guarantor. Each Guarantor consents and
agrees that the Guaranteed Parties shall be under no obligation (under Sections
2899 or 3433 of the California Civil Code or otherwise) to marshal any assets of
Borrower or any other Guarantor in favor of such Guarantor, or against or in
payment of any or all of the Guaranteed Obligations.
6. WAIVERS.
6.1 Each Guarantor absolutely, unconditionally, knowingly, and
expressly waives:
(a) (a) notice of acceptance hereof; (b) notice of any loans
or other financial accommodations made or extended under the Loan Documents or
the creation or existence of any Guaranteed Obligations; (c) notice of the
amount of the Guaranteed Obligations, subject, however, to such Guarantor's
right to make inquiry of Agent to ascertain the amount of the Guaranteed
Obligations at any reasonable time; (d) notice of any adverse change in the
financial condition of Borrower or any other Guarantor or of any other fact that
might increase such Guarantor's risk hereunder; (e) notice of presentment for
payment, demand, protest, and
notice thereof as to any instruments among the Loan Documents; (f) notice of any
unmatured event of default or event of default under the Loan Agreement; and (g)
all other notices (except if such notice is specifically required to be given to
such Guarantor hereunder or under any Loan Document to which such Guarantor is a
party) and demands to which such Guarantor might otherwise be entitled.
(b) its right, under Sections 2845 or 2850 of the California
Civil Code, or otherwise, to require the Guaranteed Parties to institute suit
against, or to exhaust any rights and remedies which the Guaranteed Parties have
or may have against, Borrower or any third party, or against any collateral for
the Guaranteed Obligations provided by Borrower, such Guarantor, or any other
Guarantor or any third party. In this regard, such Guarantor agrees that it is
bound to the payment of all Guaranteed Obligations, whether now existing or
hereafter accruing, as fully as if such Guaranteed Obligations were directly
owing to the Guaranteed Parties by such Guarantor. Such Guarantor further waives
any defense arising by reason of any disability or other defense (other than the
defense that the Guaranteed Obligations shall have been fully and finally
performed and indefeasibly paid) of Borrower or by reason of the cessation from
any cause whatsoever of the liability of Borrower in respect thereof.
(c) (a) any rights to assert against any of the Guaranteed
Parties any defense (legal or equitable), set-off, counterclaim, or claim which
such Guarantor may now or at any time hereafter have against Borrower or any
other party liable to such Guaranteed Party; (b) any defense, set-off,
counterclaim, or claim, of any kind or nature, arising directly or indirectly
from the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guaranteed Obligations or any security therefore or for
this Guaranty; (c) any defense such Guarantor has to performance hereunder, and
any right such Guarantor has to be exonerated, provided by Sections 2819, 2822,
or 2825 of the California Civil Code, or otherwise, arising by reason of: the
impairment or suspension of any Guaranteed Party's rights or remedies against
Borrower or any other Guarantor; the alteration by any Guaranteed Party of the
Guaranteed Obligations; any discharge of the Borrower's or any other Guarantor's
obligations to any Guaranteed Party by operation of law as a result of such
Guaranteed Party's intervention or omission; or the acceptance by any Guaranteed
Party of anything in partial satisfaction of the Guaranteed Obligations; (d) the
benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement thereof, and any act which shall defer or delay the
operation of any statute of limitations applicable to the Guaranteed Obligations
shall similarly operate to defer or delay the operation of such statute of
limitations applicable to such Guarantor's liability hereunder.
6.2 Each Guarantor absolutely, unconditionally, knowingly, and
expressly waives any defense arising by reason of or deriving from (i) any claim
or defense based upon an election of remedies by any of the Guaranteed Parties
including any defense based upon an election of remedies by any Guaranteed Party
under the provisions of Sections 580a, 580b, 580d, and 726 of the California
Code of Civil Procedure or any similar law of California or any other
jurisdiction; or (ii) any election by any Guaranteed Party under Bankruptcy Code
Section 1111(b) to limit the amount of, or any collateral securing, its claim
against the Borrower. Pursuant to California Civil Code Section 2856(b):
"Guarantor waives all rights and defenses arising out of an
election of remedies by the creditor, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for a
guaranteed obligation, has destroyed the guarantor's rights of subrogation
and reimbursement against the principal by the operation of Section 580(d)
of the California Code of Civil Procedure or otherwise."
If any of the Guaranteed Obligations or any obligations of a Guarantor hereunder
at any time are secured by a mortgage or deed of trust upon real property, the
Guaranteed Parties may elect, in their sole discretion and except as otherwise
provided in the Loan Documents, upon a default with respect to the Guaranteed
Obligations, to foreclose such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law, before or after enforcing this
Guaranty, without diminishing or affecting the liability of such Guarantor
hereunder except to the extent the Guaranteed Obligations are repaid with the
proceeds of such foreclosure. Each Guarantor understands that (a) by virtue of
the operation of California's antideficiency law applicable to nonjudicial
foreclosures, an election by the Guaranteed Parties nonjudicially to foreclose
such a mortgage or deed of trust probably would have the effect of impairing or
destroying rights of subrogation, reimbursement, contribution, or indemnity of
such Guarantor against Borrower or other guarantors or sureties, and (b) absent
the waiver given by such Guarantor herein, such an election would prevent the
Guaranteed Parties from enforcing this Guaranty against such Guarantor.
Understanding the foregoing, and understanding that each Guarantor is hereby
relinquishing a defense to the enforceability of this Guaranty, each Guarantor
hereby waives any right to assert against any of the Guaranteed Parties any
defense to the enforcement of this Guaranty, whether denominated "estoppel" or
otherwise, based on or arising from an election by the Guaranteed Parties
nonjudicially to foreclose any such mortgage or deed of trust. Each Guarantor
understands that the effect of the foregoing waiver may be that such Guarantor
may have liability hereunder for amounts with respect to which such Guarantor
may be left without rights of subrogation, reimbursement, contribution, or
indemnity against Borrower or other guarantors or sureties. Each Guarantor also
agrees that the "fair market value" provisions of Section 580a of the California
Code of Civil Procedure shall have no applicability with respect to the
determination of such Guarantor's liability under this Guaranty.
6.3 To the extent that any Guarantor shall repay any of the
Guaranteed Obligations, it shall be entitled to contribution and indemnification
from, and to be reimbursed by, each other Guarantor, but all such claims of
contributions, indemnification and reimbursement shall be subordinate in right
of payment to the prior indefeasible payment in full, in cash, of the Guaranteed
Obligations. Notwithstanding the foregoing, until such time as all of the
Guaranteed Obligations have been fully, finally, and indefeasibly paid in full
in cash: (a) each Guarantor hereby postpones any right of subrogation such
Guarantor has or may have as against Borrower or any other Guarantor of the
Obligations of Borrower with respect to the Guaranteed Obligations; (b) each
Guarantor hereby postpones any right to proceed against Borrower or any other
Guarantor or any other Person, now or hereafter, for contribution, indemnity,
reimbursement, or any other suretyship rights and claims, whether direct or
indirect, liquidated or contingent, whether arising under express or implied
contract or by operation of law, which such Guarantor may now have or hereafter
have as against Borrower or any other Guarantor with respect to the Guaranteed
Obligations; and (c) each Guarantor also hereby postpones any right to proceed
or seek recourse against or with respect to any property or asset of Borrower or
any other Guarantor.
6.4 WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR HEREBY ABSOLUTELY,
KNOWINGLY, UNCONDITIONALLY, AND EXPRESSLY WAIVES AND AGREES NOT TO ASSERT ANY
AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR
MORE OF CALIFORNIA CIVIL CODE SECTIONS 2799, 2808, 2809, 2810, 2815, 2819, 2820,
2821, 2822, 2825, 2839, 2845, 2848, 2849, AND 2850, CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 580A, 580B, 580C, 580D, AND 726, AND CHAPTER 2 OF TITLE 14 OF
THE CALIFORNIA CIVIL CODE.
7. RELEASES. Each Guarantor consents and agrees that, without notice
to or by such Guarantor and without affecting or impairing the obligations of
such Guarantor hereunder, the Guaranteed Parties may, by action or inaction and
in accordance with any applicable provisions of the Loan Documents:
7.1 compromise, settle, extend the duration or the time for the
payment of, or discharge the performance of, or may refuse to or otherwise not
enforce the Loan Documents;
7.2 release all or any one or more parties to any one or more of
the Loan Documents or grant other indulgences to Borrower in respect thereof;
7.3 amend or modify in any manner and at any time (or from time
to time) any of the Loan Documents; or
7.4 add (or fail to add), release or substitute any other
guarantor, if any, of the Guaranteed Obligations, or enforce, exchange, release
(by action or inaction), or waive any security for the Guaranteed Obligations
(including, the collateral referred to in Section 14 hereof) or any other
guaranty of the Guaranteed Obligations, or any portion thereof.
8. NO ELECTION. The Guaranteed Parties shall have the right to seek
recourse against each Guarantor to the fullest extent provided for herein, and
no election by any Guaranteed Party to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a
waiver of the Guaranteed Parties' right to proceed in any other form of action
or proceeding or against other parties unless the Guaranteed Parties have
expressly waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by any Guaranteed Party
under any document or instrument evidencing the Guaranteed Obligations shall
serve to diminish the liability of any Guarantor under this Guaranty except to
the extent that the Guaranteed Parties finally and unconditionally shall have
realized indefeasible payment by such action or proceeding.
9. INDEFEASIBLE PAYMENT. The Guaranteed Obligations shall not be
considered indefeasibly paid for purposes of this Guaranty unless and until all
payments to the Guaranteed Parties are no longer subject to any right on the
part of any person, including Borrower, Borrower as a debtor in possession, or
any trustee (whether appointed under the Bankruptcy Code or otherwise) of
Borrower's assets to invalidate or set aside such payments or to seek to recoup
the amount of such payments or any portion thereof, or to declare same to be
fraudulent or preferential. In the event that, for any reason, any portion of
such payments to the Guaranteed Parties is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, then the obligation
intended to be satisfied thereby shall be revived and continued in full force
and effect as if said payment or payments had not been made, and the Guarantors
shall be liable for the full amount the Guaranteed Parties are required to repay
plus any and all reasonable out-of-pocket costs and expenses (including
attorneys' fees) paid by the Guaranteed Parties in connection therewith.
10. SUBORDINATION. Each Guarantor hereby agrees that any and all
present and future indebtedness of Borrower owing to such Guarantor is postponed
in favor of and subordinated to payment, in full, in cash, of the Guaranteed
Obligations. In this regard, no payment of any kind whatsoever, other than
payments consistent with the past practices of Borrower or otherwise consented
to by Agent, which consent shall not be unreasonably withheld, shall be made
with respect to such indebtedness until the Guaranteed Obligations have been
paid in full.
11. PAYMENTS; APPLICATION. All payments to be made hereunder by each
Guarantor shall be made in lawful money of the United States of America at the
time of payment, shall be made in immediately available funds, and shall be made
without deduction (whether for taxes or otherwise) or offset. All payments made
by each Guarantor hereunder shall be applied as follows: first, to all
reasonable out-of-pocket costs and expenses (including attorneys' fees) incurred
by the Guaranteed Parties in enforcing this Guaranty or in collecting the
Guaranteed Obligations; second, to all accrued and unpaid interest, premium, if
any, and fees owing to the Guaranteed Parties constituting Guaranteed
Obligations; and third, to the balance of the Guaranteed Obligations.
12. INDEMNIFICATION. Each Guarantor agrees to indemnify each of the
Guaranteed Parties and hold each of the Guaranteed Parties harmless against all
obligations, demands, or liabilities asserted by any party and against all
losses in any way suffered, incurred, or paid by any Guaranteed Party as a
result of or in any way arising in connection with this Agreement, unless such
obligations, demand, liabilities or losses shall be due to willful misconduct or
gross negligence on the part of such Guaranteed Party.
13. BOOKS AND RECORDS. Each Guarantor agrees that the Guaranteed
Parties' books and records showing the account between the Guaranteed Parties
and Borrower shall be admissible in any action or proceeding and shall be
binding upon such Guarantor for the purpose of establishing the items therein
set forth and shall constitute prima facie proof thereof.
14. COLLATERAL. The obligations of each Guarantor hereunder are
secured, as provided in the Amended and Restated Subsidiary Security Agreement,
of even date herewith, executed by such Guarantor in favor of the Agent, and the
other Loan Documents to which such Guarantor is a party.
15. RIGHT OF SETOFF. Except to the extent prohibited by applicable
law, and in addition to and not in limitation of all rights of offset that any
Guaranteed Party or other holder of a Note may have under applicable law or
under any Loan Documents, each Guaranteed Party or other holder of a Note shall
upon the occurrence of any Event of Default and whether or not
such Guaranteed Party or such holder has made any demand or the Guarantors'
obligations are matured, have the right to appropriate and apply to the payment
of the Guarantors' obligations hereunder, all deposits (general or special, time
or demand, provisional or final) then or thereafter held by and other
indebtedness or property then or thereafter owing by such Guaranteed Party or
other holder to the Guarantors, whether or not related to this Guaranty or any
transaction hereunder.
16. AMENDMENTS. Any amendment or waiver of any provision of this
Guaranty and any consent to any departure by any Guarantor from any provision of
this Guaranty shall be effective only if made or given in compliance with all of
the terms and provisions of Section 10.10 of the Loan Agreement.
17. EXPENSES. Each Guarantor shall promptly pay to the Agent, for the
ratable benefit of the Guaranteed Parties, the amount of any and all reasonable
out-of-pocket costs and expenses of the Guaranteed Parties (both before and
after the execution hereof) in connection with any matters contemplated by or
arising out of this Guaranty or any of the Loan Documents whether (a) to
prepare, negotiate or execute (i) any amendment to, modification of or extension
of this Guaranty or any other Loan Document to which such Guarantor is a party
or (ii) any instrument, document or agreement in connection with any sale or
attempted sale of any interest herein to any participant, (b) to commence,
defend, or intervene in any litigation or to file a petition, complaint, answer,
motion or other pleadings necessary to protect or enforce the rights of the
Guaranteed Parties under this Guaranty or any other Loan Document, (c) to take
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) necessary to protect the rights of the Guaranteed Parties under this
Guaranty or any other Loan Document or to respond to any subpoena, deposition or
interrogatory with respect to any litigation involving such Guarantor, or (d) to
attempt to enforce or to enforce any rights of the Guaranteed Parties to collect
any of the Guaranteed Obligations, including all reasonable out-of-pocket fees
and expenses of attorneys and paralegals (including charges for inside counsel).
18. HEADINGS. The headings in this Guaranty are for purposes of
reference only and shall not otherwise affect the meaning or construction of any
provision of this Guaranty.
19. SEVERABILITY. The provisions of this Guaranty are severable, and
if any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
in that jurisdiction only such clause or provision, or part thereof, and shall
not in any manner affect such clause or provision in any other jurisdiction or
any other clause or provision of this Guaranty in any jurisdiction.
20. NOTICES. All notices, approvals, consents or other communications
to Agent required or desired to be given hereunder shall be in the form and
manner, and delivered to Agent at its addresses, as set forth in Section 11.8 of
the Loan Agreement. All notices, approvals, consents or other communications to
Guarantors required or desired to be given hereunder shall be in the form and
manner, and delivered to Borrower at its addresses, as set forth in Section 11.8
of the Loan Agreement.
21. REMEDIES CUMULATIVE. Each right, power and remedy of the
Guaranteed Parties provided in this Guaranty or now or hereafter existing at law
or in equity or by statute or otherwise shall be cumulative and concurrent and
shall be in addition to every other right, power or remedy provided for in this
Guaranty or now or hereafter existing at law or in equity or by statute or
otherwise. The exercise or partial exercise by the Guaranteed Parties of any one
or more of such rights, powers or remedies shall not preclude the simultaneous
or later exercise by the Guaranteed Parties of all such other rights, powers or
remedies, and no failure or delay on the part of the Guaranteed Parties to
exercise any such right, power or remedy shall operate as a waiver thereof.
22. FINAL EXPRESSION. This Guaranty, together with any other agreement
executed in connection herewith, is intended by the parties as a final
expression of the Guaranty and is intended as a complete and exclusive statement
of the terms and conditions thereof. Acceptance of or acquiescence in a course
of performance rendered under this Guaranty shall not be relevant to determine
the meaning of this Guaranty even though the accepting or acquiescing party had
knowledge of the nature of the performance and opportunity for objection.
23. ASSIGNABILITY. This Guaranty shall be binding on each of the
Guarantors and its successors and permitted assigns and shall inure to the
benefit of the Guaranteed Parties and their respective successors, transferees,
endorsees and assigns. The Guarantors may not assign this Guaranty.
24. NON-WAIVER. The failure of the Guaranteed Parties to exercise any
right or remedy hereunder, or promptly to enforce any such right or remedy,
shall not constitute a waiver thereof, nor give rise to any estoppel against the
Guaranteed Parties, nor excuse the Guarantors from their obligations hereunder.
25. TERMINATION; REINSTATEMENT. Except as otherwise provided herein,
this Guaranty shall terminate upon the receipt by each of the Guaranteed Parties
of evidence satisfactory to it of the payment (or prepayment) in full of the
Guaranteed Obligations and any other amounts which may be owing hereunder and
termination of the Lenders' Revolving Loan Commitment. At the time of such
termination, the Guaranteed Parties, at the request and expense of the
Guarantors, will promptly execute and deliver to the Guarantors a proper
instrument or instruments acknowledging the satisfaction and termination of this
Guaranty and such other documents as may be reasonably requested by Guarantors.
To the maximum extent permitted by law, this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by Agent or any Lender in respect of the Guaranteed Obligations is
rescinded or must otherwise be restored or returned by Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Guarantor or any other Person or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for any Guarantor or any
other Person or any substantial part of its assets, or otherwise, all as though
such payments had not been made.
26. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all of which
shall together constitute one and the same agreement.
27. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
THIS GUARANTY AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS)
AND DECISIONS OF THE STATE OF NEW YORK.
28. SUBMISSION TO JURISDICTION. ALL DISPUTES AMONG THE GUARANTORS AND
THE LENDERS (OR THE AGENT ACTING ON THEIR BEHALF) ARISING UNDER THIS AGREEMENT,
WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY
BY STATE AND FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK AND THE COURTS TO
WHICH AN APPEAL THEREFROM MAY BE TAKEN; PROVIDED, HOWEVER, THAT THE AGENT, ON
BEHALF OF THE LENDERS, SHALL HAVE THE RIGHT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO PROCEED AGAINST ANY OF THE GUARANTORS OR THEIR PROPERTY IN
ANY LOCATION REASONABLY SELECTED BY THE AGENT IN GOOD FAITH TO ENABLE THE AGENT
TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF THE AGENT. EACH OF THE GUARANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT IN WHICH THE AGENT HAS COMMENCED A PROCEEDING
ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS.
29. SERVICE OF PROCESS. THE GUARANTORS HEREBY IRREVOCABLY DESIGNATE CT
CORPORATIONS SYSTEMS AS THE DESIGNEE, APPOINTEE AND AGENT OF THE GUARANTORS TO
RECEIVE, FOR AND ON BEHALF OF THE GUARANTORS, SERVICE OF PROCESS IN SUCH
RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT. IT IS UNDERSTOOD THAT A COPY OF SUCH
PROCESS SERVED ON SUCH AGENT AT ITS ADDRESS WILL BE PROMPTLY FORWARDED BY MAIL
TO THE BORROWER, BUT FAILURE OF ANY OF THE GUARANTORS TO RECEIVE SUCH COPY SHALL
NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS.
30. JURY TRIAL. THE GUARANTORS, THE AGENT AND THE LENDERS EACH HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY. INSTEAD, ANY DISPUTES WILL BE RESOLVED IN A
BENCH TRIAL.
31. LIMITATION OF LIABILITY. NEITHER THE AGENT NOR ANY LENDER SHALL
HAVE ANY LIABILITY TO THE GUARANTORS (WHETHER SOUNDING IN TORT, CONTRACT, OR
OTHERWISE) FOR LOSSES SUFFERED BY ANY OF THE GUARANTORS IN CONNECTION WITH,
ARISING OUT OF, OR IN ANY WAY RELATED TO THE TRANSACTIONS OR RELATIONSHIPS
CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE
JUDGMENT OR COURT ORDER BINDING ON THE AGENT OR ANY SUCH LENDER,
THAT THE LOSSES WERE THE RESULT OF ACTS OR OMISSIONS CONSTITUTING GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
32. MAXIMUM GUARANTEED AMOUNT. Notwithstanding any other provision of
this Guaranty to the contrary, if and to extent that the obligations of a
Guarantor hereunder would otherwise be held or determined by a court of
competent jurisdiction in any action or proceeding involving any state corporate
law or any state or Federal bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other law affecting the rights of creditors generally,
to be void, invalid or unenforceable to any extent on account of the amount of
such Guarantor's liability under this Guaranty, giving effect to the rights of
subrogation, contribution, reimbursement and indemnification of such Guarantor,
if any, then notwithstanding any other provision of this Guaranty to the
contrary, the amount of the liability of such Guarantor shall, without any
further action by such Guarantor or any other Person, be automatically limited
and reduced to the highest amount which is valid and enforceable as determined
in such action or proceeding. Each Guarantor agrees that the Guaranteed
Obligations may at any time and from time to time exceed such maximum liability
without impairing this Guaranty or the rights and remedies of any Guaranteed
Party.
33. WAIVERS, CONSENTS. Each Guarantor warrants and agrees that each of
the waivers and consents set forth herein is made after consultation with legal
counsel and with full knowledge of its significance and consequence, with the
understanding that events giving rise to any defense or right waived may
diminish, destroy, or otherwise adversely affect rights which such Guarantor
otherwise may have against Borrower, the Guaranteed Parties, or others, or
against any collateral, and that, under the circumstances, the waivers and
consents herein given are reasonable and not contrary to public policy or law.
If any of the waivers or consents herein are determined to be unenforceable
under applicable law, such waivers and consents shall be effective to the
maximum extent permitted by law.
34. ADDITIONAL GUARANTORS. From time to time subsequent to the date
hereof, additional Subsidiaries of any Guarantor may become parties hereto as
additional Guarantors (the "Additional Guarantors"), by executing a counterpart
(the "Counterpart") substantially in the form of Exhibit A hereto. Upon delivery
of any such Counterpart to the Agent, notice of which is hereby waived by
Guarantors, each such Additional Guarantor shall be a Guarantor and shall be as
fully a party hereto as if such Additional Guarantor were an original signatory
hereto. Each Guarantor expressly agrees that its obligations arising hereunder
shall not be affected or diminished by the addition or release of any other
Guarantor hereunder, nor by any election of Agent not to cause any Subsidiary of
Guarantors to become an Additional Guarantor hereunder. This Agreement shall be
fully effective as to any Guarantor that is or becomes a party hereto regardless
of whether any other Person becomes or fails to become or ceases to be a
Guarantor hereunder.
35. INTERPRETATION OF AGREEMENT. Time is of the essence in each
provision of this Agreement of which time is an element. All terms not defined
herein or in the Loan Agreement shall have the meaning set forth in the
applicable Uniform Commercial Code, except where the context otherwise requires.
To the extent a term or provision of this Agreement conflicts with the Loan
Agreement, the Loan Agreement shall control with respect to the subject matter
of such term or provision. Acceptance of or acquiescence in a course of
performance rendered under this Agreement shall not be relevant in determining
the meaning of this Agreement even though the accepting or acquiescing party had
knowledge of the nature of the performance and opportunity for objection
IN WITNESS WHEREOF, each of the Guarantors has executed and delivered
this Amended and Restated Guaranty as of the date set forth in the first
paragraph hereof.
GUARANTORS:
MOBILE MINI I, INC.,
an Arizona corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MOBILE MINI HOLDINGS, INC.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DELIVERY DESIGN SYSTEMS, INC.,
an Arizona corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MOBILE MINI, LLC,
a Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MOBILE MINI, LLC,
a California limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MOBILE MINI OF OHIO, LLC,
a Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MOBILE MINI TEXAS LIMITED
PARTNERSHIP, LLP,
a Texas limited liability partnership
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT A TO
AMENDED AND RESTATED GUARANTY
[FORM OF COUNTERPART]
COUNTERPART
COUNTERPART (this "Counterpart"), dated _______, is delivered pursuant
to Section 34 of the Guaranty referred to below. The undersigned hereby agrees
that this Counterpart may be attached to the Amended and Restated Guaranty,
dated as of February 17, 2006 (as it may be from time to time amended, modified
or supplemented, the "Guaranty"; capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed therein), by Mobile Mini I,
Inc., an Arizona corporation, Mobile Mini Holdings, Inc., a Delaware
corporation, Delivery Design Systems, Inc., an Arizona corporation, Mobile Mini,
LLC, a Delaware limited liability company, Mobile Mini, LLC, a California
limited liability company, Mobile Mini of Ohio, LLC, a Delaware limited
liability company, and Mobile Mini Texas Limited Partnership, LLP, a Texas
limited liability partnership, in favor of Deutsche Bank AG, New York Branch,
for itself and as agent (the "Agent"). The undersigned by executing and
delivering this Counterpart hereby becomes a Guarantor under the Guaranty in
accordance with Section 34 thereof and agrees to be bound by all of the terms
thereof.
[NAME OF ADDITIONAL GUARANTOR]