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EXHIBIT 10.13
GUARANTY OF VENDOR
TO: DEUTSCHE FINANCIAL SERVICES CORPORATION
In consideration of financing provided or to be provided by you to
dealers and/or distributors of __________________________________ ("Vendor"),
under the terms of that certain FLOORPLAN AGREEMENT entered into between you
and Vendor on __________, 1996, and all current and future amendments and
addenda thereto ("Agreement"), and for other good and valuable consideration
received, we jointly, severally, unconditionally and absolutely guaranty to
you, from property held separately, jointly or in community, the immediate
payment when due of all current and future liabilities owed by Vendor to you
under the Agreement, whether such liabilities are direct, indirect or owed by
Vendor to a third party and acquired by you ("Liabilities"). We will pay you on
demand the full amount of all Liabilities due from Vendor, together with all
costs and expenses (including, without limitation, reasonable attorneys' fees).
We also indemnify and hold you harmless from and against all (a) losses, costs
and expenses you incur and/or are liable for (including, without limitation,
reasonable attorneys' fees) and (b) claims, actions and demands made by Vendor
or any third party against you, which in any way relate to any relationship or
transaction between you and Vendor.
Our guaranty will not be released, discharged or affected by, and we
irrevocably consent to, any: (a) change in the manner, place, interest rate,
finance or other charges, or terms of payment or performance in any current or
future agreement between you and Vendor, and/or any Dealer or distributor of
Vendor (collectively "Dealer"), the release, settlement or compromise of or
with any party liable for the payment or performance thereof or the
substitution, release, non-perfection, impairment, sale or other disposition of
any collateral thereunder; (b) change in Vendor's and/or any of Dealer's
financial condition; (c) interruption of relations between Vendor and you or
us; (d) interruption of relations between you and any Dealer; (e) claim or
action by Vendor, and/or any Dealer, against you; and/or (f) increases or
decreases in any credit you may provide to Vendor and/or any Dealer. We will
pay you even if you have not (i) notified Vendor that it is in default of the
Liabilities, or (ii) exercised any of your rights or remedies against Vendor,
any Dealer, any other person or any current or future collateral. This Guaranty
is assignable by you and will inure to the benefit of your assignee. If Vendor
hereafter undergoes any change in its ownership, identity or organizational
structure, this Guaranty will extend to all current and future obligations
which such new or changed legal entity owes to you.
We irrevocably waive: notice of your acceptance of this Guaranty,
presentment, demand, protest, nonpayment, nonperformance, notice of breach or
default, any right of contribution from other guarantors, dishonor, the amount
of indebtedness of Vendor, and/or any Dealer, outstanding at any time, the
number and amount of advances made by you to any Dealer in reliance on this
Guaranty and any claim or action against Vendor and/or any dealer or
distributor of Vendor; notice and hearing as to any prejudgment remedy against
Vendor and/or any Dealer; all other demands and notices required by law
directly or indirectly relating to Vendor and/or any Dealer; all rights of
offset and counterclaims against you or Vendor; all rights in, and notices or
demands relating to, any collateral now or hereafter securing any Liabilities
(including, without limitation, all rights, notices or demands directly or
indirectly relating to the sale or other disposition of such collateral or the
manner of such sale or other disposition); all defenses to the enforceability
of this Guaranty (including, without limitation, fraudulent inducement). We
further waive all defenses based on suretyship or impairment of collateral, and
defenses which the Vendor may assert on the underlying debt, including but not
limited to, failure of consideration, breach of warranty, fraud, payment,
statute of frauds, bankruptcy, lack of legal capacity, statute of limitations,
lender liability, deceptive trade practices, accord and satisfaction and usury.
We also waive all rights to claim, arbitrate for or xxx for any punitive or
exemplary damages. In addition, we hereby irrevocably subordinate to you any
and all of our present and
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future rights and remedies: (a) of subrogation against Vendor to any of your
rights or remedies against Vendor and/or any Dealer; (b) of contribution,
reimbursement, indemnification and restoration from Vendor and/or any Dealer;
and (c) to assert any other claim or action against Vendor, and/or any Dealer
directly or indirectly relating to this Guaranty, such subordinations to last
until you have been paid in full for all Liabilities. All our waivers and
subordinations herein will survive any termination of this Guaranty.
We have made an independent investigation of the financial condition
of Vendor and give this Guaranty based on that investigation and not upon any
representation made by you. We have access to current and future Vendor
financial information which enables us to remain continuously informed of
Vendor's financial condition. We represent and warrant to you that we have
received and will receive substantial direct or indirect benefit by making this
Guaranty and incurring the Liabilities. We will provide you with financial
statements on us each year within ninety (90) days after the end of our fiscal
year end. We warrant and represent to you that all financial statements and
information relating to us or Vendor which have been or may hereafter be
delivered by us or Vendor to you are true and correct and have been and will be
prepared in accordance with generally accepted accounting principles
consistently applied and, with respect to previously delivered statements and
information, there has been no material adverse change in the financial or
business condition of us or Vendor since the submission to you, either as of
the date of delivery, or if different, the date specified therein, and we
acknowledge your reliance thereon. This Guaranty will survive any federal
and/or state bankruptcy or insolvency action involving Vendor. We are solvent
and our execution of this Guaranty will not make us insolvent. If you are
required in any action involving Vendor to return or rescind any payment made
to or value received by you from or for the account of Vendor, this Guaranty
will remain in full force and effect and will be automatically reinstated
without any further action by you and notwithstanding any termination of this
Guaranty or your release of us. Any delay or failure by you, or your
successors or assigns, in exercising any of your rights or remedies hereunder
will not waive any such rights or remedies. Oral agreements or commitments to
loan money, extend credit or to forbear from enforcing repayment of a debt
including promises to extend or renew such debt are not enforceable. To protect
us and you from misunderstanding or disappointment, any agreements we reach
covering such matters are contained in this writing, which is the complete and
exclusive statement of the agreement between us, except as specifically
provided herein or as we may later agree in writing to modify it.
Notwithstanding anything herein to the contrary: (a) you may rely on any
facsimile copy, electronic data transmission or electronic data storage of this
Guaranty, any agreement between you and Vendor, any Statement of Transaction,
billing statement, invoice from Vendor, financial statements or other report,
and (b) such facsimile copy, electronic data transmission or electronic data
storage will be deemed an original, and the best evidence thereof for all
purposes, including, without limitation, under this Guaranty or any other
agreement between you and us, and for all evidentiary purposes before any
arbitrator, court or other adjudicatory authority. We may terminate this
Guaranty by a written notice to you, the termination to be effective sixty (60)
days after you receive and acknowledge it, but the termination will not
terminate our obligations hereunder arising prior to the effective termination
date. We have read and understood all terms and provisions of this Guaranty. We
acknowledge receipt of a true copy of this Guaranty and of all agreements
between you and Vendor. The meanings of all terms herein are equally applicable
to both the singular and plural forms of such terms.
BINDING ARBITRATION. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or in equity
of any type or nature whatsoever (including, without limitation, all torts,
whether regarding negligence, breach of fiduciary duty, restraint of trade,
fraud, conversion, duress, interference, wrongful replevin, wrongful
sequestration, fraud in the inducement, usury or any other tort, all contract
actions, whether regarding express or implied terms, such as implied covenants
of good faith, fair dealing, and the commercial reasonableness
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of any collateral disposition, or any other contract claim, all claims of
deceptive trade practices or lender liability, and all claims questioning the
reasonableness or lawfulness of any act), whether arising before or after the
date of this Guaranty, and whether directly or indirectly relating to: (a) this
Guaranty and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between you and
us; (c) any act committed by you or by any parent company, subsidiary or
affiliated company of you (the "DFS Companies"), or by an employee, agent,
officer or director of a DFS Company, whether or not arising within the scope
and course of employment or other contractual representation of the DFS
Companies provided that such act arises under a relationship, transaction or
dealing between you and Vendor or you and us; and/or (d) any other
relationship, transaction, dealing or agreement between you and Vendor or you
and us (collectively the "Disputes"), will be subject to and resolved by
binding arbitration.
All arbitration hereunder will be conducted in accordance with the
Commercial Arbitration Rules of The American Arbitration Association ("AAA").
If the AAA is dissolved, disbanded or becomes subject to any state or federal
bankruptcy or insolvency proceeding, the parties will remain subject to binding
arbitration which will be conducted by a mutually agreeable arbitral forum. The
parties agree that all arbitrator(s) selected will be attorneys with at least
five (5) years secured transactions experience. The arbitrator(s) will decide if
any inconsistency exists between the rules of any applicable arbitral forum and
the arbitration provisions contained herein. If such inconsistency exists, the
arbitration provisions contained herein will control and supersede such rules.
The site of all arbitrations will be in the Division of the Federal Judicial
District in which AAA maintains a regional office that is closest to Vendor.
Discovery permitted in any arbitration proceeding commenced hereunder
is limited as follows: No later than thirty (30) days after the filing of a
claim for arbitration, the parties will exchange detailed statements setting
forth the facts supporting the claim(s) and all defenses to be raised during
the arbitration, and a list of all exhibits and witnesses. No later than
twenty-one (21) days prior to the arbitration hearing, the parties will
exchange a final list of all exhibits and all witnesses, including any
designation of any expert witness(es) together with a summary of their
testimony; a copy of all documents and a detailed description of any property
to be introduced at the hearing. Under no circumstances will the use of
interrogatories, requests for admission, requests for the production of
documents or the taking of depositions be permitted. However, in the event of
the designation of any expert witness(es), the following will occur: (a) all
information and documents relied upon by the expert witness(es) will be
delivered to the opposing party, (b) the opposing party will be permitted to
depose the expert witness(es), (c) the opposing party will be permitted to
designate rebuttal expert witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
The Arbitrator(s) will not have the authority to award exemplary or
punitive damages.
All arbitration proceedings, including testimony or evidence at
hearings, will be kept confidential, although any award or order rendered by
the arbitrator(s) pursuant to the terms of this Guaranty may be entered as a
judgment or order in any state or federal court and may be entered as a
judgment or order within the federal judicial district which includes the
residence of the party against whom such award or order was entered. This
Guaranty concerns transactions involving commerce among the several states. The
Federal Arbitration Act ("FAA") will govern all arbitration(s) and confirmation
proceedings hereunder.
Nothing herein will be construed to prevent your or our use of
bankruptcy, receivership, injunction, repossession, replevin, claim and
delivery, sequestration, seizure, attachment, foreclosure, dation and/or any
other prejudgment or provisional
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action or remedy relating to any Collateral for any current or future debt owed
by either party to the other. Any such action or remedy will not waive your or
our right to compel arbitration of any Dispute.
If either we or you bring any other action for judicial relief with
respect to any Dispute (other than those set forth in the immediately preceding
paragraph), the party bringing such action will be liable for and immediately
pay all of the other party's costs and expenses (including attorneys' fees)
incurred to stay or dismiss such action and remove or refer such Dispute to
arbitration. If either we or you bring or appeal an action to vacate or modify
an arbitration award and such party does not prevail, such party will pay all
costs and expenses, including attorneys' fees, incurred by the other party in
defending such action. Additionally, if we xxx you or institute any arbitration
claim or counterclaim against you in which you are the prevailing party, we
will pay all costs and expenses (including attorneys' fees) incurred by you in
the course of defending such action or proceeding.
Any arbitration proceeding must be instituted: (a) with respect to any
Dispute for the collection of any debt owed by either party to the other,
within two (2) years after the date the last payment was received by the
instituting party; and (b) with respect to any other Dispute, within two (2)
years after the date the incident giving rise thereto occurred, whether or not
any damage was sustained or capable of ascertainment or either party knew of
such incident. Failure to institute an arbitration proceeding within such
period will constitute an absolute bar and waiver to the institution of any
proceeding with respect to such Dispute. Except as otherwise stated herein, all
notices, arbitration claims, responses, requests and documents will be
sufficiently given or served if mailed or delivered: (i) to us at our address
below; (ii) to you at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000, Attention: General Counsel; or such other address as the parties
may specify from time to time in writing.
The agreement to arbitrate will survive the termination of this
Guaranty.
IF THIS GUARANTY IS FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL
PROCEEDING WITH RESPECT TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE WITHOUT A JURY. WE WAIVE ANY RIGHT TO A JURY TRIAL IN
ANY SUCH PROCEEDING.
We acknowledge and agree that this Guaranty and all agreements between
Vendor and you have been substantially negotiated, and will be performed, in
the state of Illinois. Accordingly, we agree that all Disputes will be governed
by, and construed in accordance with, the laws of such state, except to the
extent inconsistent with the provisions of the FAA which will control and
govern all arbitration proceedings hereunder.
THIS GUARANTY CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGES
WAIVER PROVISIONS.
Date: September 9, 1996
(1) INDIVIDUAL GUARANTOR(S): (2) CORPORATE, PARTNERSHIP OR LIMITED
LIABILITY COMPANY GUARANTOR:
Signed By: KARTS INTERNATIONAL/
---------------------------- XXXXXXX'X THUNDER KARTS, INC.
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(Print Name: ) (Name of Corporate, Partnership or
------------------------- Limited Liability Company Guarantor)
WITNESS: /s/ XXXXXXXXX XXXXXXX By: /s/ V. XXXX XXXXXXXX
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(Print Name: Xxxxxxxxx Xxxxxxx ) (Print Name: V. Xxxx Xxxxxxxx )
------------------------- -------------------------
Title: President
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SIGNED By: (3)
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(Print Name: ) Address of Guarantor(s):
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WITNESS: (4) --------------------------------------
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(Print Name: ) --------------------------------------
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(1)NOTARY STATEMENT
On this 9th day of September, 1996, before me, the subscriber, a Notary Public,
personally appeared V. Xxxx Xxxxxxxx(7) known to me to be the person(s)
described in and who executed the above Guaranty of Vendor, and who
acknowledged the execution thereof to be their free act and deed.
Notary Public: /s/ XXXX X. XXXXXXXX
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My Commission Expires: at death, 19
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(SEAL)
XXXX X. XXXXXXXX
NOTARY PUBLIC
State of Louisiana
My Commission Is Issued For Life
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(6)SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary or Assistant Secretary
of KARTS INTERNATIONAL & XXXXXXX'X THUNDERKARTS, INC. ("Guarantor") and that
execution of the above Guaranty of Vendor was ratified, approved and confirmed
by the Shareholders at a meeting, if necessary, and pursuant to a resolution of
the Board of Directors of Guarantor at a meeting of the Board of Directors duly
called, and which is currently in effect, which resolution was duly presented,
seconded and adopted and reads as follows:
"BE IT RESOLVED that any officer of this corporation is hereby
authorized to execute a guaranty of the obligations of KARTS INTERNATIONAL/
XXXXXXX'X THUNDERKARTS, INC., ("Vendor") to Deutsche Financial Services
Corporation on behalf of the corporation, which instrument may contain such
terms as the above named persons may see fit including, but not limited to a
waiver of notice of the acceptance of the guaranty; presentment; demand;
protest; notices of nonpayment, nonperformance, dishonor, the amount of
indebtedness of Vendor, and/or any dealer or distributor of Vendor, outstanding
at any time, any legal proceedings against Vendor and/or any dealer or
distributor of Vendor, and any other demands and notices required by law
directly or indirectly relating to Vendor and/or any dealer or distributor of
Vendor; any right of contribution from other guarantors; and all offsets."
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal on this 9th day of September, 1996.
(SEAL) Secretary: /s/ Xxxxxxx X. Xxxxxx
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(1) Complete this Section only if Individual Guarantor(s)
(2) Complete this Section only if Corporate, Partnership or Limited
Liability Company Guarantor
(3) Individual Guarantor's Signature
(4) Signature of Witness to Individual Guarantor's Signature (Must be DFS
Employee)
(5) Signature of Corporate, Partnership or Limited Liability Company
Representative
(6) Title of Corporate, Partnership or Limited Liability Company
Representative
(7) Name of Each Individual Guarantor
(8) Complete this Section only if Corporate Guarantor
