GUARANTY
(ARBITRATION)
TO: ITT COMMERCIAL FINANCE CORP.
In consideration of financing provided or to be provided by you to BOAT TREE,
INC. ("Dealer"), 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 of all
current and future liabilities owed by Dealer to you when due, whether such
liabilities are direct or indirect ("Liabilities"). We will pay you on demand
the full amount of all sums owed by Dealer to you, 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 Dealer
or any third party against you, which in any way relate to any relationship or
transaction between you and Dealer.
Our guaranty will not be affected by any: (a) change in the manner, place or
terms of payment or performance in any current or future agreement between you
and 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 Dealer's financial condition; (c) interruption of
relations between Dealer and you or us; (d) claim or action by Dealer against
you; and/or (e) increases or decreases in any credit you may provide to Dealer.
We will pay you even if you have not (i) notified Dealer that it is in default
of the Liabilities and/or that you have accelerated the payment of all or any
part of the Liabilities, or (ii) exercised any of your rights or remedies
against 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
Dealer hereafter undergoes any change in its ownership, identity or
organizational structure, this Guaranty will extend to all current and future
obligations owed to you by such new or changed legal entity.
We irrevocably waive: notice of your acceptance of this Guaranty, presentment,
demand, protest, nonpayment, nonperformance, any right of contribution from
other guarantors, dishonor, the amount of indebtedness of Dealer outstanding at
any time, the number and amount of advances made by you to Dealer in reliance on
this Guaranty and any claim or action against Dealer; notice and hearing as to
any prejudgment remedy, all other demands and notices required by law; all
rights of offset and counterclaims against you or Dealer; all rights in, and
invoices 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); and all of our present and future rights and remedies (a) of
subrogation to any of your rights or remedies against Dealer, (b) of
contribution, reimbursements, indemnification and restoration from Dealer and
(c) to assert any other claim or action against Dealer directly or indirectly
relating to this Guaranty. All our waivers herein will survive any termination
of this Guaranty.
We have made an independent investigation of the financial condition of Dealer
and give this Guaranty based on that investigation and not upon any
representation made by you. We have access to current and future Dealer
financial information which enables us to remain continuously informed of
Dealer's financial condition. This Guaranty will survive any federal and/or
state bankruptcy or insolvency action involving Dealer. We are solvent and our
execution of this guaranty will not make us insolvent. If you are required in
any action involving Dealer to return or rescind any payment made to or value
received by you from or for the account of Dealer, this Guaranty will remain in
full force and effect and will be automatically reinstated without any further
action 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. This Guaranty supersedes all prior oral and written agreements
concerning the subject matter hereof. Any oral or other amendment or waiver made
or claimed to be made to this Guaranty that is not evidenced by a written
document signed by you and our authorized representatives will be null, void and
have no force or effect whatsoever. 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. 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 equity (including,
without limitation, all torts, whether for negligence, breach of fiduciary duty,
restraint of trade, fraud, conversion, duress, interference, wrongful replevin,
wrongful sequestration, fraud in the inducement or otherwise, all contract
actions, whether concerning express or implied terms, such implied covenants of
good faith, fair dealing, commercial reasonableness of any collateral
disposition, and all claims for deceptive trade practices, lends liability and
the reasonableness or lawfulness of any act), heretofore or hereafter arising
out of or 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 and/or (c) any
relationship, transaction or dealing between you and us (collectively, the
"Disputes"), will be subject to and resolved by binding arbitration.
All arbitration hereunder will be pursuant to the Code of Procedure in effect
from time to time ("Code") of the National Arbitration Forum ("NAF"), currently
located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. A copy of the
Code may be obtained by contacting the NAF. If the Code is cancelled and/or the
NAF dissolves, all arbitrable Disputes will be subject to and resolved by
binding arbitration in accordance with the Code and administered by the American
Arbitration Association. The arbitrator(s) will decide if any inconsistency
exists between the Code and the arbitration provisions contained herein. If any
such inconsistency exists, the arbitration provisions contained herein will
control and supersede the Code. The site of all arbitration will be in Division
of the Federal Judicial District of your branch office closest to Dealer. The
laws of the State of Georgia will govern this Guaranty; provided, however, if
the jurisdictional requirements of the Federal Arbitration Act ("FAA") are
satisfied, the FAA will supersede laws of such state and govern. This Guaranty
concerns transactions involving commerce among the several states. Discovery
proceedings under the Federal Rules of Civil Procedure are permitted before and
during recesses of arbitration hearings, but only with respect to Disputes where
at least $250,000,000 is
controversy. Any disagreements relating to such discovery will be resolved by
the arbitrator(s) after a hearing. All arbitration proceedings and all awards
granted thereunder will be kept confidential.
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 action or remedy relating to any collateral for any
current or future debt owed by either of us to the other. Any such action or
remedy will not waive your or our right to compel arbitration of any Dispute. If
either of us brings any other action for judicial relief with respect to any
Dispute, 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 such action and remove or refer such Dispute to arbitration.
Any arbitration proceeding must be instituted within thirteen (13) months after
the date: (a) the last payment was received by the instituting party regarding
any Dispute for the collection of any current or future debt owed by either of
us to the other; or (b) the incident occurred giving rise to any other type of
Dispute, whether or not any damage was sustained or capable of ascertainment or
either of us 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. All notices will be
sufficiently given if mailed or delivered: (i) to us at our address(es)
specified below; and (ii) to you at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: General Counsel, or such other address as you may specify from
time to time. No arbitration hereunder will include, by consolidation, joinder
or otherwise, any third party, unless such third party agrees to arbitrate
pursuant to the arbitration provisions contained herein and the Code. If either
of us brings or appeals 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 in defending such action. If the arbitration
section of this Guaranty or its application is invalid or unenforceable, 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.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION. DATE: October 7, 1992
INDIVIDUAL GUARANTOR(S):
SIGNED BY: /s/ Xxxxxx X. Xxxx, Xx.
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(Print Name: Xxxxxx X. Xxxx, Xx.
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WITNESS:
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(Print Name:
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SIGNED BY: /s/ Xxxxxxxxxx Xxxx
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(Print Name: Xxxxxxxxxx Xxxx
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WITNESS:
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(Print Name:
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2CORPORATE OR PARTNERSHIP GUARANTOR:
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(Name of Corporate or Partnership Guarantor)
By:
(Print Name _______________________________
Title:______________________________________
Address of Guarantor(s):
0000 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000
NOTARY STATEMENT
On this 7th day of October, 1992, before me, the subscriber, a Notary Public,
personally appeared Xxxxxx X. Xxxx, Xx. and Xxxxxxxxxx Xxxx 7 known to me to be
the person(s) described in and who executed the above Guaranty (Arbitration),
and who acknowledged the execution thereof to be their free act and deed.
My commission expires: Notary Public:________________________________
(SEAL)
SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary of _____________________________
("Guarantor") and that execution of the above Guaranty (Arbitration) 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 ___________________________________________
("Dealer") to ITT Commercial Finance Corp. 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 Dealer outstanding at any time, any
legal proceedings against Dealer, and any other demands and notices required by
law; 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 ___ day of _____________, 19__.
(SEAL) Secretary: _______________________________________
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1 Complete Section only if Individual Guarantor(s) 5 Signature of Corporate or
Partnership Representative 2 Complete Section only if Corporate or Partnership
Guarantor 6 Title of Corporate or Partnership Representative 3 Individual
Guarantor's Signature 7 Name of Each Individual Guarantor 4 Signature of Witness
to Individual Guarantor's Signature 8 Complete Section only if Corporate
Guarantor
(Must be ITT CMF Employee)
