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EXHIBIT 10.15
[NATIONS CREDIT LOGO]
GUARANTY AND SECURITY AGREEMENT
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1. GUARANTY. To induce NATIONSCREDIT DISTRIBUTION FINANCE, INC. ("NDF") to
extend credit to MARINEMAX, INC., a Delaware corporation ("Debtor"), and in
consideration of the benefits to accrue to the undersigned (jointly and
severally, if more than one) ("Guarantor"), Guarantor hereby
unconditionally guarantees and promises to pay to NDF on demand all
Indebtedness of Debtor. As used herein, "Indebtedness" means any and all
amounts owing to NDF from time to time by Debtor, whether principal,
interest, fees, charges, expenses or other amounts, and whether owing
jointly or severally.
Demand for payment may be made hereunder at any time that an "Event of
Default" exists under the Loan and Security Agreement of even date herewith
between Debtor and NDF (as such agreement may be modified, renewed or
extended, "Loan Agreement"). Unless otherwise defined, terms are used
herein as defined in the Loan Agreement.
This is a continuing guaranty covering all present and future Indebtedness
of Debtor to NDF and shall include Indebtedness revived after being
satisfied. If, due to a bankruptcy proceeding, lawsuit or any other
circumstances, NDF ever returns or otherwise disgorges any Indebtedness
previously paid, then Guarantor shall remain obligated to NDF hereunder for
the amount so repaid or recovered to the same extent as if such amount had
never been received by NDF.
2. UNCONDITIONAL NATURE OF GUARANTY. Guarantor agrees: that NDF may, without
notice or demand, from time to time renew, compromise, extend, accelerate
or otherwise change the time for payment of, or otherwise change the terms
of any Loan Papers, the Indebtedness or any part thereof, take and hold
security for the payment of this agreement or the Indebtedness, exchange,
enforce, waive, impair or release any such security, apply such security
and direct the order or manner of sale thereof as NDF in its discretion may
determine, and release, compound or substitute any one or more endorsers or
guarantors; that NDF shall not be required to proceed against Debtor or any
other person, proceed against or exhaust any security held for the
Indebtedness, or pursue any other remedy available to NDF before making
demand hereunder and proceeding against Guarantor; that until payment in
full of all obligations of Debtor to NDF, Guarantor shall not have any
right of subrogation, contribution, assignment of Indebtedness or
reimbursement for payments made by Guarantor hereunder, nor any right to
participate in any security now or hereafter held by NDF; that any act by
NDF that injures or increases the risk of Guarantor or exposes Guarantor to
greater liability shall not discharge any obligations hereunder; and that
all presentments, demands for performance, notices of non-performance,
protests, notices of protest, notices of dishonor and notices of acceptance
of this agreement and of the existence or creation of additional
Indebtedness are hereby waived. Guarantor waives all rights and defenses
arising out of an election of remedies, such as nonjudicial foreclosure
with respect to security for any Indebtedness, even though that election of
remedies has destroyed Guarantor's rights of subrogation and reimbursement
against Debtor. Guarantor acknowledges that this agreement is necessary to
the conduct and promotion of the business of Guarantor, and can be expected
to benefit such business. Guarantor's obligations hereunder shall not be
discharged, impaired or affected by: the power or authority or lack thereof
of Debtor to incur the Indebtedness, the validity or invalidity of any
documents evidencing or securing the Indebtedness, NDF's failure to
disclose any information that may be available to NDF regarding any
defaults by Debtor or Debtor's ability to repay the Indebtedness, or any
offsets, counterclaims or defenses (other than payment in full of the
Indebtedness) that Guarantor may have to its obligations hereunder, all of
which are hereby waived by Guarantor.
3. COLLATERAL. As security for the Indebtedness and for all present and future
obligations of Guarantor to NDF, of whatever kind, now due or to become
due, absolute or contingent, and whether joint, several, or joint and
several, Guarantor hereby grants to NDF a continuing security interest in
the following (collectively, "Collateral"), whether now owned or hereafter
acquired, and wherever located: all of Guarantor's Accounts; all of
Guarantor's Inventory; all of Guarantor's other goods, equipment, fixtures
and furniture; all insurance policies and proceeds relating to the
foregoing; all books and records relating to the foregoing; and all
proceeds and products of the foregoing. Guarantor will sign all papers
necessary to effect and perfect the assignments and security interests
hereby granted, and will bear all costs of recordation and perfection.
4. COVENANTS. So long as any amounts are owing by Guarantor to NDF or this
agreement is in effect, Guarantor agrees that it shall comply with all its
agreements with NDF, and shall:
(a) Not sell, transfer, encumber, lease or use any item of Collateral
without NDF's prior written consent, except for the sale of inventory
in the ordinary course of business, or as otherwise permitted in the
Loan Agreement");
(b) Keep accurate and complete records of the Collateral, and during
reasonable hours, permit NDF to inspect the Collateral and to inspect
and make copies of Guarantor's books and records;
(c) Promptly report and pay all taxes and other charges against Collateral;
maintain a perfected security interest in favor of NDF in the
Collateral, subject only to other liens permitted under the Loan
Agreement or otherwise acceptable to NDF in its reasonable discretion;
and discharge all other liens, encumbrances, assessments, charges and
adverse claims that attach to or are asserted against any Collateral;
(d) Keep the Collateral insured for full value against all insurable risks
with NDF as the loss payee, as its interest may appear, with
endorsements satisfactory to NDF, and notify NDF in writing 10 days
before changing or canceling any such policy; and
(e) Deliver to NDF such financial statements and other information relating
to the Collateral and Guarantor's financial condition, assets and
prospects as required under the Loan Agreement, or as NDF shall
reasonably request from time to time.
5. DEFAULTS. Any Event of Default shall constitute a default hereunder.
6. REMEDIES. During a default hereunder, NDF may, at its option and without
notice, demand immediate payment of any or all obligations owing by
Guarantor to NDF. NDF shall have all the rights and remedies available at
law, in equity or by agreement, including those of a secured party under
the Uniform Commercial Code in effect in any jurisdiction where Collateral
is kept. Such rights shall include the right to cancel any committed but
unfunded advances, to enter Guarantor's premises with or without legal
process, but without breach of the peace, and/or to take possession of and
remove Collateral, and books and records relating to Collateral. At NDF's
request, Guarantor will assemble, prepare for removal and make available to
NDF at a place designated by NDF such items of Collateral as NDF may from
time to time request. During the continuance of a default, NDF may take
control of any funds generated by the Collateral, and in NDF's name or
Guarantor's name, demand, collect, receipt for, settle, compromise, xxx
for, repossess, accept returns of, foreclose or realize upon any
Collateral. Guarantor waives any and all rights that it may have to a
notice prior to seizure by NDF of any Collateral. Guarantor agrees that
private sale to a manufacturer, distributor or vendor of any item financed
by NDF at the amount owed to NDF on that item, less a reasonable restocking
charge, shall be a commercially reasonable method of disposition. Ten days
written notice of a public sale date or the date after which a private sale
may occur shall be reasonable notice. To the fullest extent permitted by
law, Guarantor waives relief from any appraisement, valuation,
anti-deficiency, homestead, exemption or usury laws now or hereafter in
effect. Guarantor shall pay all costs and expenses (including reasonable
attorneys fees) incurred by NDF in enforcing the Indebtedness or this
agreement.
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7. MODIFICATION; EXPENSES. This agreement can be changed only by a writing
signed by the parties. If Guarantor fails to perform any act required
hereunder, including the payment and discharge of taxes, liens, adverse
claims and insurance premiums relating to the Collateral, NDF may (but
shall not be required to) perform such act. Amounts incurred by NDF in the
performance of any such act or in the enforcement of this agreement shall
be part of the obligations secured hereby, bear interest at the default
interest rate provided in the Loan Agreement and be payable upon demand.
8. POWER OF ATTORNEY. Guarantor hereby irrevocably appoints NDF, including any
officer or employee of NDF, as Guarantor's lawful attorney-in-fact with
power of substitution to do the following acts on behalf of Guarantor
during the continuance of any Event of Default: to execute and deliver in
the name of Guarantor financing statements and amendments, lien filings,
certificates of title and other instruments relating to Collateral; to
endorse Guarantor's name on any checks, money orders and other instruments
payable to Guarantor and relating to any Collateral; and generally to
perform all acts and do all things appropriate to discharge Guarantor's
duties hereunder, including making affidavits and acknowledging instruments
as fully as if done by Guarantor. The foregoing powers are coupled with an
interest and are irrevocable as long as the Loan Agreement is in effect or
any Indebtedness is outstanding.
9. RATE LIMITATION. It is not the intention of any party to this agreement to
make an agreement violative of any applicable laws relating to maximum
permissible rates of interest. In no event shall Guarantor be obligated to
pay any amount in excess of the maximum amount of interest permitted under
applicable law. If NDF ever receives anything of value deemed excess
interest under applicable law, such excess will be applied to principal or
refunded to the payor.
10. MISCELLANEOUS. Time is of the essence in the performance of Guarantor's
duties, but NDF's failure to insist upon strict compliance with this
agreement shall not be deemed a waiver of any rights. A waiver by NDF on
any one occasion shall not be construed as a bar to or waiver of any right
or remedy on any future occasion. All inspections by NDF are for the
benefit of NDF only, and may not be relied upon by Guarantor or any other
person. All rights and remedies of NDF hereunder are cumulative. Terms are
used herein as defined in the Uniform Commercial Code. A copy of this
agreement or any financing statement may be filed as a financing statement
in any appropriate jurisdiction, to the extent permitted by applicable law.
Notices shall be sent hereunder as provided in Section 8.02 of the Loan
Agreement.
11. ASSIGNMENT. This agreement shall inure to the benefit of and be binding
upon the parties hereto, and their successors and assigns; provided,
however, that Guarantor must have NDF's written consent before Guarantor
can assign any of its rights or obligations under this agreement.
12. JOINT AND SEVERAL OBLIGATIONS. Guarantor agrees that its obligations under
this agreement are joint and several with each other Guarantor that is
party to this agreement. NDF may demand and receive payment from any
Guarantor in any order, and may from time to time extend, modify, waive or
release the obligations of any Guarantor, release or impair any security
for any Guarantor's obligations, or otherwise take or omit to take any
action with respect to any Guarantor, in every case without affecting the
obligations of any other Guarantor hereunder. NDF shall not be required to
proceed against any other Guarantor, or pursue any other remedy, prior to
making any demand upon a Guarantor hereunder.
13. TERMINATION. This agreement may be terminated by Guarantor by delivery to
NDF of written notice of revocation as to future transactions, which notice
must be received at least 30 days prior to the effective date of the
termination. Any such termination shall not affect the continuing liability
of Guarantor with respect to Indebtedness created or committed prior to the
effective date of the termination, and all rights, remedies and covenants
hereunder shall extend until indefeasible payment of all such amounts.
14. LAW. This agreement shall be governed by the laws of the State of Georgia.
The state and federal courts located in Atlanta, Georgia, including the
U.S. District Court for the Northern District of Georgia, shall have
jurisdiction to determine any claim or dispute pertaining to this
agreement. The parties expressly consent to such jurisdiction, and waive
any claims of inconvenient forum.
15. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY THE LAWS OF ANY
FORUM STATE, GUARANTOR WAIVES TRIAL BY JURY IN ANY DISPUTE OR PROCEEDING
RELATING IN ANY WAY TO THIS AGREEMENT OR ANY RELATED MATTERS.
16. ENTIRE AGREEMENT. This agreement constitutes the entire agreement between
the parties, and supersedes all prior agreements and understandings
relating to the subject matter hereof. THIS WRITTEN AGREEMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
GUARANTOR ACKNOWLEDGES RECEIPT OF A COPY OF THIS AGREEMENT.
Effective as of May 1, 1998.
XXXXXXX MARINE, INC.
By /s/ Xxxxxxx X. XxXxxx
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Xxxxxxx X. XxXxxx, Vice President
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