Exhibit 10.15
COLLATERALIZED GUARANTY
TO: DEUTSCHE FINANCIAL SERVICES (UK) LTD. ("DFS")
1. Guaranty and Indemnification. In consideration of financing provided or to be
provided by you to Elcom Group Limited ("Dealer"), and for other good and
valuable consideration received, the undersigned (individually and/or
collectively "Guarantor") unconditionally and absolutely guaranty to DFS, from
property held separately or jointly, the immediate payment when due of all
current and future liabilities owed by Dealer to DFS, whether such liabilities
are direct or indirect ("Liabilities"). Guarantor will pay DFS on demand the
full amount of all sums owed by Dealer to DFS, together with all costs and
expenses (including, without limitation, reasonable attorneys' fees). Guarantor
also indemnifies and holds DFS harmless from and against all (a) losses, costs
and expenses DFS incurs and/or is liable for (including, without limitation,
reasonable attorneys' fees) and (b) claims, actions and demands made by Dealer
or any third party against DFS, which in any way relate to any relationship or
transaction between DFS and Dealer.
2. Consents. This Guaranty will not be released, discharged or affected by, and
Guarantor hereby irrevocably consents to, any: (a) change in the manner, place,
or terms of payment or performance in any current or future agreement between
DFS 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 DFS or Guarantor; (d) claim or action by Dealer
against DFS; and/or (e) increases or decreases in any credit DFS may provide to
Dealer.
3. Unconditional Obligations. Guarantor will pay DFS even if DFS has not: (a)
notified Dealer that it is in default of the Liabilities, and/or that DFS
intends to accelerate or has accelerated the payment of all or any part of the
Liabilities, or (b) exercised any of DFS' rights or remedies against Dealer, any
other person or any current or future collateral. If Dealer 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 DFS.
4. Waivers. Guarantor irrevocably waives: notice of DFS' acceptance of this
Guaranty, presentment, demand, protest, nonpayment, nonperformance, notice of
breach or default, notice of intent to accelerate and notice of acceleration of
any indebtedness of Dealer, 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 DFS to Dealer in reliance on this Guaranty
and any claim or action against Dealer; all other demands and notices required
by law; all rights of offset and counterclaims against DFS or Dealer; all
defenses to the enforceability of this Guaranty (including, without limitation,
fraudulent inducement). Guarantor also waives all rights to claim, arbitrate for
or xxx for any punitive or exemplary damages. In addition, Guarantor hereby
irrevocably subordinates to DFS any and all of Guarantor's present and future
rights and remedies: (a) of subrogation against Dealer to any of DFS' rights or
remedies against Dealer, (b) of contribution, reimbursement, indemnification and
restoration from Dealer; and (c) to assert any other claim or action against
Dealer directly or indirectly relating to this Guaranty, such subordinations to
last until DFS has been paid in full for all Liabilities. All of Guarantor's
waivers and subordinations herein will survive any termination of this Guaranty.
5. Warranties and Representations. Guarantor has made an independent
investigation of the financial condition of Dealer and gives this Guaranty based
on that investigation and not upon any representation made by DFS. Guarantor has
access to current and future Dealer financial information which enables
Guarantor to remain continuously informed of Dealer's financial condition.
Guarantor represents and warrants to DFS that Guarantor has received and will
receive substantial direct or indirect benefit by making this Guaranty and
incurring the Liabilities. Guarantor also represents and warrants to DFS that
Guarantor is
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solvent and Guarantor's execution of this Guaranty will not make Guarantor
insolvent. Guarantor further represents and warrants to DFS that: (a) the
present fair salable value of Guarantor's assets is greater than the amount
required to pay Guarantor's liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities); and (b) Guarantor now has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage and is now solvent and able to pay
its debts as they mature.
6. Grant of Security Interest. To secure payment of all Liabilities and all of
Guarantor's current and future debts to DFS, whether under this Guaranty or any
current or future guaranty or other agreement, Guarantor grants DFS a security
interest in all of Guarantor's inventory, equipment, fixtures, accounts,
contract rights, chattel paper, instruments, reserves, documents, and general
intangibles; all whether now owned or hereafter acquired, and all attachments,
accessories, accessions, substitutions and replacements thereto, and all
proceeds thereof. All such assets are collectively referred to herein as the
"Collateral." All of such terms for which meanings are provided in the Uniform
Commercial Code of the applicable state are used herein with such meanings. All
Collateral financed by DFS for Dealer or Guarantor, and all proceeds thereof,
will be held in trust by Guarantor for DFS.
7. Additional Warranties and Representations. Guarantor warrants and represents
to DFS that: (a) Guarantor has good title to all Collateral; (b) DFS' security
interest in the Collateral financed by DFS for Dealer or Guarantor is not now
and will not become subordinate to the security interest, lien, encumbrance or
claim of any person, other than the security interest granted to Deutsche
Financial Services Corporation; (c) Guarantor will execute all documents DFS
requests to perfect and maintain DFS' security interest in the Collateral; (d)
Guarantor will deliver to DFS immediately upon each request, and DFS may retain,
each Certificate of Title or Statement of Origin issued for Collateral financed
by DFS for Dealer or Guarantor; (e) Guarantor will at all times be duly
organized, existing, in good standing, qualified and licensed to do business in
each state, county, or parish, in which the nature of its business or property
so requires; (f) Guarantor has the right and is duly authorized to enter into
this Guaranty; (g) Guarantor's execution of this Guaranty does not constitute a
breach of any agreement to which Guarantor is now or hereafter becomes bound;
(h) there are and will be no actions or proceedings pending or threatened
against Guarantor which might result in any material adverse change in
Guarantor's financial or business condition or which might in any way adversely
affect any of Guarantor's assets; (i) Guarantor will maintain the Collateral in
good condition and repair; (j) Guarantor has duly filed and will duly file all
tax returns required by law; (k) Guarantor has paid and will pay when due all
taxes, levies, assessments and governmental charges of any nature; (l) Guarantor
will keep and maintain all of its books and records pertaining to the Collateral
at its principal place of business designated below; (m) Guarantor will promptly
supply DFS with such information concerning it as DFS hereafter may reasonably
request; (n) all Collateral will be kept at Dealer's principal place of business
or Guarantor's place of business listed below, and such other locations, if any,
of which Dealer or Guarantor has notified DFS in writing or as listed on any
current or future Exhibit "A" attached to any Agreement for Wholesale Financing
or security agreement between Dealer and DFS or this Guaranty which written
notice(s) to DFS and Exhibit A(s) are incorporated herein by reference; (o)
Guarantor will give DFS thirty (30) days prior written notice of any change in
Guarantor's identity, name, form of business organization, ownership,
management, principal place of business, Collateral locations or other business
locations, and before moving any books and records to any other location; (p)
Guarantor will observe and perform all matters required by any lease, license,
concession or franchise forming part of the Collateral in order to maintain all
the rights of DFS thereunder; (q) Guarantor will advise DFS of the commencement
of material legal proceedings against Dealer or Guarantor; and (r) Guarantor
will comply with all applicable laws and will conduct its business in a manner
which preserves and protects the Collateral and the earnings and incomes
thereof.
8. Negative Covenants. Guarantor will not at any time (without DFS' prior
written consent): (a) other than in the ordinary course of its business, sell,
lease or otherwise dispose of or transfer any of its assets; (b) rent, lease,
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demonstrate, consign, or use any Collateral financed by DFS for Dealer or
Guarantor; or (c) enter into any mergers, consolidations, reorganizations or
recapitalizations without DFS' prior written consent other than as contemplated
herein, except for any such transaction which results in the indefeasible
satisfaction in full of all Liabilities to DFS and termination of the agreements
between DFS and Dealer in accordance with the terms thereof.
9. Insurance. Guarantor will immediately notify DFS of any loss, theft or damage
to any Collateral. Guarantor will keep the Collateral insured for its full
insurable value under an "all risk" property insurance policy with a company
acceptable to DFS, naming DFS as a lender loss-payee and containing standard
lender's loss payable and termination provisions. Guarantor will provide DFS
with written evidence of such property insurance coverage and lender's
loss-payee endorsement.
10. Financial Statements. Guarantor will provide DFS with financial statements
on it each year within one hundred twenty (120) days after the end of Dealer's
fiscal year end. Guarantor warrants and represents to DFS that all financial
statements and information relating to Guarantor or Dealer which have been or
may hereafter be delivered by Guarantor or Dealer to DFS 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 Guarantor or Dealer since the
submission to DFS, either as of the date of delivery, or if different, the date
specified therein, and Guarantor acknowledges DFS' reliance thereon.
11. Financial Covenants.
(a) Guarantor agrees that it will at all times maintain the
following:
(i) a Tangible Net Worth plus Subordinated Debt in the
combined amount of not less than Forty-Five Million Dollars
($45,000,000);
(ii) a ratio of Debt to Tangible Net Worth plus
Subordinated Debt of not more than Three and one-half to One
(3.5:1.0);
(b) During any fiscal year, not more than one fiscal quarter
thereof shall evidence a before tax loss, excluding any expense
charges relating to the Intangibles, as determined in accordance
with GAAP; and
(c) For each fiscal year, Guarantor shall achieve before tax
income, excluding any expense charges relating to the Intangibles,
as determined in accordance with GAAP, of not less than one dollar
($1.00).
For purposes of this paragraph: (i) "Tangible Net Worth" means the
book value of Guarantor's assets less liabilities (including as
liabilities all reserves for contingencies and other potential
liabilities), excluding from such assets all Intangibles; (ii)
"Intangibles" means and includes general intangibles (as that term
is defined in the Uniform Commercial Code); accounts receivable
and advances due from officers, directors, member, owner,
employees, stockholders and affiliates; leasehold improvements net
of depreciation; licenses; good will; prepaid expenses; escrow
deposits; covenants not to compete; the excess of cost over book
value of acquired assets; franchise fees; organizational costs;
finance reserves held for recourse obligations; capitalized
research and development costs; and such other similar items as
DFS may from time to time determine in DFS' sole discretion; (iii)
"Debt" means all of Guarantor's liabilities and indebtedness for
borrowed money of any kind and nature whatsoever other than
Subordinated Debt (as defined below), whether direct or indirect,
absolute or contingent, and including obligations under
capitalized leases, guaranties or with respect to which Guarantor
has pledged assets to secure performance, whether or not direct
recourse liability has been assumed by Guarantor; provided that
Debt shall not include any liability item on Guarantor's financial
statements
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which represents a minority ownership interest in any
Subsidiary; (iv) "Subordinated Debt" means all Debt which is
subordinated to the payment of Guarantor's liabilities to DFS by
an agreement in form and substance satisfactory to DFS plus any
liability item on Guarantor's financial statements which
represents a minority ownership interest in any Subsidiary; and
(v) "Subsidiary" means any corporation in which Guarantor or a
subsidiary of Guarantor owns or controls greater than fifty
percent (50%) of the voting securities, or any partnership or
joint venture in which Guarantor or a subsidiary of Guarantor owns
or controls greater than fifty percent (50%) of the aggregate
equitable interest. The foregoing terms will be determined in
accordance with GAAP consistently applied, and on a consolidated
basis based upon the consolidated and consolidating financial
statements of Guarantor ("Financial Covenants"). The President or
Chief Financial Officer of Guarantor will certify to DFS by the
10th business day after Guarantor's filing of its 10-Q with the
SEC, or more often if requested by DFS, that Guarantor is in
compliance with the financial covenants as set forth in a form
acceptable to DFS in its sole discretion.
12. Reviews. Guarantor grants DFS an irrevocable license to enter Guarantor's
business locations during normal business hours without notice to Guarantor to:
(a) account for and inspect all Collateral; (b) verify Guarantor's compliance
with this Guaranty; and (c) examine and copy Guarantor's books and records
related to the Collateral.
13. Default. Guarantor will be in default under this Guaranty if: (a) Dealer
breaches any terms, warranties or representations contained in any agreement
between DFS and Dealer; (b) Guarantor breaches any terms, warranties or
representations contained herein or in any other agreement between Guarantor and
DFS; (c) any representation, statement, report or certificate made or delivered
by Dealer or Guarantor to DFS is not accurate when made; (d) Dealer fails to pay
any portion of Dealer's debts to DFS when due and payable under any agreement
between DFS and Dealer; (e) Guarantor fails to pay any portion of Guarantor's
debts to DFS when due and payable under any agreement between DFS and Guarantor;
(f) Dealer or Guarantor abandons any Collateral; (g) Dealer or Guarantor is or
becomes in default in the payment of any debt owed to any third party; (h) a
money judgment issues against Dealer or Guarantor; (i) an attachment, sale or
seizure issues or is executed against any assets of Dealer or Guarantor; (j) Any
general partner dies while Guarantor is a general or limited partnership, or any
member dies while Guarantor is a limited liability company, as applicable; (k)
Dealer or Guarantor shall cease existence as a corporation, partnership, or
limited liability company, as applicable; (l) Dealer or Guarantor ceases or
suspends business; (m) Dealer, Guarantor or any member while Dealer or Guarantor
is a limited liability company, as applicable, makes a general assignment for
the benefit of creditors; (n) Dealer, Guarantor or any member while Dealer or
Guarantor is a limited liability company, as applicable, becomes insolvent or
voluntarily or involuntarily becomes subject to the Federal Bankruptcy Code, any
state insolvency law or any similar law; (o) any receiver is appointed for any
assets of Dealer, Guarantor or any member while Dealer or Guarantor is a limited
liability company, as applicable; (p) this Guaranty or any other guaranty of
Dealer's debts to DFS is terminated; (q) Dealer or Guarantor loses any
franchise, permission, license or right to sell or deal in any Collateral which
DFS finances for Dealer or Guarantor; or (r) Dealer or Guarantor misrepresents
their respective financial condition or organizational structure.
14. Rights of DFS Upon Default. In the event of a default:
(a) DFS may at any time at DFS' election, without notice or demand to
Dealer or Guarantor, do any one or more of the following: declare
all or any part of the debt Guarantor owes DFS, whether
contingent or noncontingent and whether arising hereunder or
under any other agreement between Guarantor and DFS, immediately
due and payable, together with all costs and expenses of DFS'
collection activity, including, without limitation, all
reasonable attorneys' fees; exercise any or all rights under
applicable law (including, without limitation, the right to
possess,
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transfer and dispose of the Collateral); and/or cease
extending any additional credit to Guarantor, if applicable, or
Dealer.
(b) Guarantor will segregate and keep the Collateral in trust for
DFS, and in good order and repair, and will not sell, rent,
lease, consign, otherwise dispose of or use any Collateral, nor
further encumber any Collateral.
(c) Upon DFS' oral or written demand, Guarantor will immediately
deliver the Collateral to DFS, in good order and repair, at a
place specified by DFS, together with all related documents; or
DFS may, in DFS' sole discretion and without notice or demand to
Guarantor, take immediate possession of the Collateral together
with all related documents.
All of DFS' rights and remedies are cumulative. DFS' failure to
exercise any of DFS' rights or remedies hereunder will not waive
any of DFS' rights or remedies as to any past, current or future
default.
15. Sale of Collateral. Guarantor agrees that if DFS conducts a private sale of
any Collateral by requesting bids from 10 or more dealers or distributors in
that type of Collateral, any sale by DFS of such Collateral in bulk or in
parcels within 120 days of: (a) DFS' taking possession and control of such
Collateral; or (b) when DFS is otherwise authorized to sell such Collateral;
whichever occurs last, to the bidder submitting the highest cash bid therefor,
is a commercially reasonable sale of such Collateral under the Uniform
Commercial Code. Guarantor agrees that the purchase of any Collateral by a
vendor, as provided in any agreement between DFS and the vendor, is a
commercially reasonable disposition and private sale of such Collateral under
the Uniform Commercial Code, and no request for bids shall be required.
Guarantor further agrees that 7 or more days prior written notice will be
commercially reasonable notice of any public or private sale (including any sale
to a Vendor). Guarantor irrevocably waives any requirement that DFS retain
possession and not dispose of any Collateral until after an arbitration hearing,
arbitration award, confirmation, trial or final judgment. If DFS disposes of any
such Collateral other than as herein contemplated, the commercial reasonableness
of such disposition will be determined in accordance with the laws of the state
governing this Guaranty.
16. Power of Attorney. Guarantor grants DFS an irrevocable power of attorney to:
execute or endorse on Guarantor's behalf any checks, financing statements,
instruments, Certificates of Title and Statements of Origin pertaining to the
Collateral; supply any omitted information and correct errors in any documents
between DFS and Guarantor; initiate and settle any insurance claim pertaining to
the Collateral; and do anything to preserve and protect the Collateral and DFS'
rights and interest therein.
17. Termination. Guarantor may terminate this Guaranty by a written notice to
DFS, the termination to be effective sixty (60) days after DFS receives and
acknowledges it, but the termination will not terminate Guarantor's obligations
hereunder for Liabilities arising prior to the effective termination date.
18. Binding Effect. Guarantor cannot assign this Guaranty without DFS' prior
written consent, although DFS may assign its interest herein without notice to,
or consent from, Guarantor. This Guaranty will protect and bind DFS' and
Guarantor's respective heirs, representatives, successors and assigns.
19. Notices. Except as otherwise stated herein, all notices, arbitration claims,
responses, requests and documents will be sufficiently given or served if mailed
or delivered: (a) to Guarantor at its address below; (b) to DFS 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.
20. Severability. If any provision of this Guaranty or its application is
invalid or unenforceable, the remainder of this Guaranty will not be impaired or
affected and will remain binding and enforceable.
21. Supplement. If Guarantor and DFS have heretofore executed other guaranties
or agreements in connection with all or any part of the Collateral, this
Guaranty
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shall supplement each and every other such guaranty and agreement previously
executed by and between Guarantor and DFS, and in that event this Guaranty shall
neither be deemed a novation nor a termination of such previously executed
guaranty or agreement nor shall execution of this Guaranty be deemed a
satisfaction of any obligation secured by such previously executed guaranty or
agreement.
22. Receipt of Guaranty. Guarantor has read and understood all terms and
provisions of this Guaranty. Guarantor acknowledges receipt of a true copy of
this Guaranty and of all agreements between DFS and Dealer. The meanings of all
terms herein are equally applicable to both the singular and plural forms of
such terms. Notwithstanding anything herein to the contrary: (a) DFS may rely on
any facsimile copy, electronic data transmission or electronic data storage of
this Guaranty, any agreement between DFS and Dealer, any Statement of
Transaction, billing statement, invoice from a 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 DFS and Guarantor, and for all evidentiary purposes
before any arbitrator, court or other adjudicatory authority.
23. NO ORAL AGREEMENTS. 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 Guarantor and DFS from
misunderstanding or disappointment, any agreements Guarantor and DFS or Dealer
and DFS reach covering such matters are contained in this Guaranty, an Agreement
for Wholesale Financing, or another agreement between Guarantor and DFS or
between Dealer and DFS, which agreement(s) is (are) the complete and exclusive
statement of the agreement between Guarantor and DFS and between Dealer and DFS,
except as specifically provided herein, in such other agreement(s) or as
Guarantor and DFS or Dealer and DFS may later agree in writing.
24. Miscellaneous. This Guaranty will survive any federal and/or state
bankruptcy or insolvency action involving Dealer. If DFS is required in any
action involving Dealer to return or rescind any payment made to or value
received by DFS 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 by DFS and notwithstanding any termination of this Guaranty or DFS'
release of Guarantor. Any delay or failure by DFS, or DFS' successors or
assigns, in exercising any of DFS' rights or remedies hereunder will not waive
any such rights or remedies. If Guarantor fails to pay any taxes, fees or other
obligations which may impair DFS' interest in the Collateral, or fails to keep
the Collateral insured, DFS may, but shall not be required to, pay such taxes,
fees or obligations and pay the cost to insure the Collateral, and the amounts
paid will be: (a) an additional debt directly owed by Guarantor to DFS, which
shall be subject to finance charges at the highest rate allowed by law; and (b)
due and payable immediately in full. Guarantor agrees to pay all of DFS'
reasonable attorneys' fees and expenses incurred by DFS in enforcing DFS' rights
hereunder. The Section titles used in this Guaranty are for convenience only and
do not define or limit the contents of any Section.
25. BINDING ARBITRATION.
25.1 Arbitrable Claims. 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 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
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hereto, or the breach, invalidity or termination hereof; (b) any previous or
subsequent agreement between DFS and us; (c) any act committed by DFS or by any
parent company, subsidiary or affiliated company of DFS (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 DFS and Dealer or DFS and
Guarantor; and/or (d) any other relationship, transaction, dealing or agreement
between DFS and Dealer or DFS and Guarantor (collectively the "Disputes"), will
be subject to and resolved by binding arbitration.
25.2 Administrative Body. 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 Dealer.
25.3 Discovery. 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.
25.4 Exemplary or Punitive Damages. The Arbitrator(s) will not
have the authority to award exemplary or punitive damages.
25.5 Confidentiality of Awards. 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.
25.6 Prejudgment and Provisional Remedies. Nothing herein will be
construed to prevent DFS' or Guarantor's 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 party to the other. Any such action or remedy will not waive DFS' or
Guarantor's right to compel arbitration of any Dispute.
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25.7 Attorneys' Fees. If either Guarantor or DFS 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 Guarantor or DFS 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.
25.8 Limitations. 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.
25.9 Survival After Termination. The agreement to arbitrate will
survive the termination of this Guaranty.
26. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. 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. DFS AND GUARANTOR WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
27. Governing Law. Guarantor acknowledges and agrees that this Guaranty and all
agreements between Dealer and DFS have been substantially negotiated, and will
be performed, in the state of Massachusetts. Accordingly, Guarantor agrees 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: December 1, 1997
ELCOM INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
[Print Name: Xxxxxxxx X. Xxxxxxx ]
Title: CFO
By:
[Print Name: ]
Title:
Address of Guarantor(s):
00 Xxxxxx Xxx
Xxxxxxx, XX 00000
8
