CONTINUING AND UNCONDITIONAL GUARANTY BETWEEN FOUNTAIN POWERBOAT/ BANK OF AMERIC



	 Bank of America, N.A.
	  	EXHIBIT 10.11

  
 Date: July 17, 2003 
  
 Continuing and Unconditional
Guaranty 
  

	Bank:	 	Guarantor:
		
	 Bank of America, N.A.
	 	 Fountain Powerboat Industries, Inc.

	 NC7-002-02-01
	 	 1653 Whichards Beach Road

	 One Hanover Square, Suite 201
	 	 Washington, North Carolina 27889

	 Raleigh, North Carolina 27601
	 	 
		
	 Wake County, North Carolina
	 	 Beaufort County, North Carolina

		
	 (Street address including county)
	 	 (Name and street address, including county)


  
 “Borrower”: Fountain
Powerboats, Inc. 
  
 1. Guaranty. FOR VALUE RECEIVED, and to induce Bank of
America, N.A. (“Bank”) to make loans or advances or to extend credit or other financial accommodations or benefits, with or without security, to or for the account of Borrower, the undersigned “Guarantor”, if more than one, then
each of them jointly and severally, hereby irrevocably and unconditionally guarantees to Bank the full and prompt payment when due, whether by acceleration or otherwise, of any and all Liabilities (as hereinafter defined) of Borrower to Bank. This
Guaranty is continuing and unlimited as to the amount, and is cumulative to and does not supersede any other guaranties. 
  
 Guarantor further unconditionally guarantees the faithful, prompt and complete compliance by Borrower with all Obligations (as hereinafter defined). The undertakings of
Guarantor hereunder are independent of the Liabilities and Obligations of Borrower and a separate action or actions for payment, damages or performance may be brought or prosecuted against Guarantor, whether or not an action is brought against
Borrower or to realize upon the security for the Liabilities and/or Obligations, whether or not Borrower is joined in any such action or actions, and whether or not notice is given or demand is made upon Borrower. 
  
 Bank shall not be required to proceed first against Borrower, or any other person, or entity,
whether primarily or secondarily liable, or against any collateral held by it, before resorting to Guarantor for payment, and Guarantor shall not be entitled to assert as a defense to the enforceability of the Guaranty any defense of Borrower with
respect to any Liabilities or Obligations. 
  
 2. Paragraph Headings, Governing
Law and Binding Effect. Guarantor agrees that the paragraph headings in this Guaranty are for convenience only and that they will not limit any of the provisions of this Guaranty. Guarantor further agrees that this Guaranty shall be governed by
and construed in accordance with the laws of the State of North Carolina and applicable United States federal law. Guarantor further agrees that this Guaranty shall be deemed to have been made in the State of North Carolina at Bank’s address
indicated above, and shall be governed by, and construed in accordance with, the laws of the State of North Carolina, or the United States courts located within the State of North Carolina, and is performable in the State of North Carolina. This
Guaranty is binding upon Guarantor, his, their or its executors, administrators, successors or assigns, and shall inure to the benefit of Bank, its successors, indorsees or assigns. Anyone executing this Guaranty shall be bound by the terms hereof
without regard to execution by anyone else. 
  
 3. Definitions. 

 
 A. “Guarantor” shall mean Guarantor or any one or more
of them. 
  
 B. “Liability” or
“Liabilities” shall mean without limitation, all liabilities, indebtedness, and obligations of Borrower to Bank under the Note, the Loan Agreement and the other Loan Documents, whether direct or indirect, absolute or contingent, joint or
several, secured or unsecured, due or not due, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise, now or hereafter existing, or held or to be held by Bank for its own account or as agent for another or
others, whether created directly, indirectly, or acquired by assignment or otherwise, including but not limited to all extensions or renewals thereof, and all sums payable under or by virtue thereof, including, without limitation, all amounts of
principal and interest, all expenses (including reasonable attorney’s fees and cost of collection) incurred in the collection thereof or the enforcement of rights thereunder (including, without limitation, any liability arising from failure to
comply with state or federal laws, rules and regulations concerning the control of hazardous waste or substances at or with respect to any real estate securing any loan guaranteed hereby), whether arising in the ordinary course of business or
otherwise. If Borrower is a partnership, corporation or other entity the term “Liability” or “Liabilities” as used herein shall include all Liabilities to Bank of any successor entity or entities. 
  
 C. “Loan Agreement” shall mean the Loan Agreement of even
date herewith between the Bank and the Borrower. 
  
 D.
“Loan Documents” shall mean the Loan Agreement, the Note, all deeds to secure debt, deeds of trust, mortgages, security agreements and other documents securing payment of the Liabilities and all notes and other agreements, documents, and
instruments evidencing or relating to the Liabilities and Obligations. 
  
 E. “Note” shall mean the Promissory Note of the Borrower to the Bank in the original principal amount of $18,000,0000 dated as of even date herewith, which Note evidences the loan described in the Loan Agreement.

  

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 F. “Obligation” or “Obligations” shall mean all terms, conditions, covenants,
agreements and undertakings of Borrower and/or Guarantor under all notes and other documents evidencing the Liabilities, and under all deeds to secure debt, deeds of trust, mortgages, security agreements and other agreements, documents and
instruments executed in connection with the Liabilities or related thereto. 
  
 4. Waivers by Guarantor. Guarantor waives notice of acceptance of this Guaranty, notice of any Liabilities or Obligations to which it may apply, presentment, demand for payment, protest, notice of dishonor or nonpayment of any
Liabilities, notice of intent to accelerate, notice of acceleration, and notice of any suit or the taking of other action by Bank against Borrower, Guarantor or any other person, any applicable statute of limitations and any other notice to any
party liable on any Loan Document (including Guarantor). 
  
 Each Guarantor also
hereby waives, until payment in full of the Liabilities, any claim, right or remedy which such Guarantor may now have or hereafter acquire against Borrower that arises hereunder and/or from the performance by any other Guarantor hereunder including,
without limitation, any claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification, or participation in any claim, right or remedy of Bank against Borrower or against any security which Bank now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise. 
  
 Guarantor also waives the benefits of any provision of law requiring that Bank exhaust any right or remedy, or take any action, against Borrower, any Guarantor, any other
person and/or property including but not limited to the provisions of N.C. Gen. Stat. §26-7 through § 26-9, inclusive, as amended, or otherwise. 
  
 Bank may at any time and from time to time (whether before or after revocation or termination of this Guaranty) without notice to Guarantor (except as required by law),
without incurring responsibility to Guarantor, without impairing, releasing or otherwise affecting the Obligations of Guarantor, in whole or in part, and without the indorsement or execution by Guarantor of any additional consent, waiver or
guaranty: (a) change the manner, place or terms of payment, or change or extend the time of or renew, or change any interest rate or alter any Liability or Obligation or installment thereof, or any security therefor; (b) loan additional monies or
extend additional credit to Borrower, with or without security, thereby creating new Liabilities or Obligations the payment or performance of which shall be guaranteed hereunder, and the Guaranty herein made shall apply to the Liabilities and
Obligations as so changed, extended, surrendered, realized upon or otherwise altered; (c) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure
the Liabilities or Obligations and any offset there against; (d) exercise or refrain from exercising any rights against Borrower or others (including Guarantor) or act or refrain from acting in any other manner; (e) settle or compromise any
Liability or Obligation or any security therefor and subordinate the payment of all or any part thereof to the payment of any Liability or Obligation of any other parties primarily or secondarily liable on any of the Liabilities or Obligations; (f)
release or compromise any Liability of Guarantor hereunder or any Liability or Obligation of any other parties primarily or secondarily liable on any of the Liabilities or Obligations; or (g) apply any sums from any sources to any Liability without
regard to any Liabilities remaining unpaid. 
  
 5. Subordination. Upon
demand of Bank, Guarantor agrees that it will not demand, take or receive from Borrower, by set-off or in any other manner, payment of any debt, now and at any time or times hereafter owing by Borrower to Guarantor unless and until all the
Liabilities and Obligations shall have been fully paid and performed, and any security interest, liens or encumbrances which Guarantor now has and from time to time hereafter may have upon any of the assets of Borrower shall be made subordinate,
junior and inferior and postponed in priority, operation and effect to any security interest of Bank in such assets. 
  
 6. Waivers by Bank. No delay on the part of Bank in exercising any of its options, powers or rights, and no partial or single exercise thereof, shall constitute a
waiver thereof. No waiver of any of its rights hereunder, and no modification or amendment of this Guaranty, shall be deemed to be made by Bank unless the same shall be in writing, duly signed on behalf of Bank; and each such waiver, if any, shall
apply only with respect to the specific instance involved, and shall in no way impair the rights of Bank or the obligations of Guarantor to Bank in any other respect at any other time. 
  
 7. Termination. This Guaranty shall be binding on each Guarantor until written notice of revocation signed by such Guarantor or
written notice of the death of such Guarantor shall have been received by Bank, notwithstanding change in name, location, composition or structure of, or the dissolution, termination or increase, decrease or change in personnel, owners or partners
of Borrower, or any one or more of Guarantors. No notice of revocation or termination hereof shall affect in any manner rights arising under this Guaranty with respect to Liabilities or Obligations that shall have been committed, created,
contracted, assumed or incurred prior to receipt of such written notice pursuant to any agreement entered into by Bank prior to receipt of such notice. The sole effect of such notice of revocation or termination hereof shall be to exclude from this
Guaranty, Liabilities or Obligations thereafter arising that are unconnected with Liabilities or Obligations theretofore arising or transactions entered into theretofore. 
  
 In the event of the death of a Guarantor, the liability of the estate of the deceased Guarantor shall continue in full force and effect as
to (i) the Liabilities existing at the date of death, and any renewals or extensions thereof, and (ii) loans or advances made to or for the account of Borrower after the date of death of the deceased Guarantor pursuant to a commitment made by Bank
to Borrower prior to the date of such death. As to all surviving Guarantors, this Guaranty shall continue in full force and effect after the death of a Guarantor, not only as to the Liabilities existing at that time, but also as to Liabilities
thereafter incurred by Borrower to Bank. 
  
 8. Partial Invalidity and/or
Enforceability of Guaranty. The unenforceability or invalidity of any provision of this Guaranty shall not affect the enforceability or validity of any other provision herein and the invalidity or unenforceability of any provision of any Loan
Document as it may apply to any person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. 
  
 In the event Bank is required to relinquish or return the payments, the collateral or the proceeds thereof, in whole or in part, which had
been previously applied to or retained for application against any Liability, by reason of a proceeding arising under the Bankruptcy Code, or for any other reason, this Guaranty shall automatically continue to be effective notwithstanding any
previous cancellation or release effected by Bank. 
  
 9. Change of Status.
Guarantor will not become a party to a merger or consolidation with any other company, except where Guarantor is the surviving corporation or entity, and all covenants under this Guaranty are assumed by the surviving entity. Further, Guarantor
may not change its legal structure, without the written consent of Bank and all covenants under this Guaranty are assumed by the new or surviving entity. Guarantor further agrees that this Guaranty shall be binding, legal and enforceable against
Guarantor in the event Borrower changes its name, status or type of entity. 
  

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 10. Financial and Other Information. Guarantor agrees to furnish to Bank any and all financial information and any
other information regarding Guarantor and/or collateral requested in writing by Bank within ten (10) days of the date of the request. Guarantor has made an independent investigation of the financial condition and affairs of Borrower prior to
entering into this Guaranty, and Guarantor will continue to make such investigation; and in entering into this Guaranty Guarantor has not relied upon any representation of Bank as to the financial condition, operation or creditworthiness of
Borrower. Guarantor further agrees that Bank shall have no duty or responsibility now or hereafter to make any investigation or appraisal of Borrower on behalf of Guarantor or to provide Guarantor with any credit or other information which may come
to its attention now or hereafter. 
  
 11. Notices. Notice shall be deemed
reasonable if mailed postage prepaid at least five (5) days before the related action to the address of Guarantor or Bank, at their respective addresses indicated at the beginning of this Guaranty, or to such other address as any party may designate
by written notice to the other party. Each notice, request and demand shall be deemed given or made, if sent by mail, upon the earlier of the date of receipt or five (5) days after deposit in the U.S. Mail, first class postage prepaid, or if sent by
any other means, upon delivery. 
  
 12. Guarantor Duties. If the Borrower
shall default in payment or performance of any Liabilities, whether principal, interest, premium, fee (including, but not limited to, loan fees and attorneys’ fees and expenses), or otherwise, when and as the same shall become due, whether
according to terms of the Loan Agreement, by acceleration, or otherwise, or upon the occurrence of an Event of Default (as defined in the Note), then the Guarantor shall, upon notice or demand by Bank, promptly and with due diligence pay all
Liabilities and perform and satisfy all Obligations for the benefit of the Bank. 
  
 13. Remedies. Upon any failure of Guarantor to fulfill its obligations under Section 12, Bank shall have all of the remedies of a creditor and, to the extent applicable, of a secured party, under all applicable law, and without
limiting the generality of the foregoing, Bank may, at its option and without notice or demand: (a) declare any Liability due and payable at once; (b) take possession of any collateral pledged by Guarantor wherever located, and sell, resell, assign,
transfer and deliver all or any part of said collateral of Guarantor at any public or private sale or otherwise dispose of any or all of the collateral in its then condition, for cash or on credit or for future delivery, and in connection therewith
Bank may impose reasonable conditions upon any such sale, and Bank, unless prohibited by law the provisions of which cannot be waived, may purchase all or any part of said collateral to be sold, free from and discharged of all trusts, claims, rights
or redemption and equities of Guarantor whatsoever; Guarantor acknowledges and agrees that the sale of any collateral through any nationally recognized broker-dealer, investment banker or any other method common in the securities industry shall be
deemed a commercially reasonable sale under the Uniform Commercial Code or any other equivalent statute or federal law, and expressly waives notice thereof except as provided herein; and (c) set-off against any or all Liabilities of Guarantor all
money owed by Bank or any of its agents or affiliates in any capacity (other than in its capacity as a fiduciary) to Guarantor whether or not due, and if exercised by Bank, Bank shall be deemed to have exercised such right of set-off and to have
made a charge against any such money immediately upon the occurrence of such default although made or entered on the books subsequent thereto. 
  
 Bank shall have a properly perfected security interest in all of Guarantor’s funds on deposit with Bank to secure the balance of any Liabilities and/or Obligations
that Guarantor may now or in the future owe Bank. Bank is granted a contractual right of set-off and will not be liable for dishonoring checks or withdrawals where the exercise of Bank’s contractual right of set-off or security interest results
in insufficient funds in Guarantor’s account. As authorized by law, Guarantor grants to Bank this contractual right of set-off and security interest in all property of Guarantor now or at anytime hereafter in the possession of Bank, including
but not limited to any joint account, special account, account by the entireties, tenancy in common, and all dividends and distributions now or hereafter in the possession or control of Bank (excluding any account held by Bank in a fiduciary
cpacity). 
  
 14. Attorney Fees, Cost and Expenses. Guarantor shall pay all
costs of collection and reasonable attorney’s fees, including reasonable attorney’s fees in connection with any suit, mediation or arbitration proceeding, out of Court payment agreement, trial, appeal, bankruptcy proceedings or otherwise,
incurred or paid by Bank in enforcing the payment of any Liability or defending this agreement. 
  
 15. Intentionally deleted. 
  
 16.
Preservation of Property. Bank shall not be bound to take any steps necessary to preserve any rights in any property pledged as collateral to Bank to secure Borrower and/or Guarantor’s Liabilities and Obligations as against prior parties
who may be liable in connection therewith, and Borrower and Guarantor hereby agree to take any such steps. Bank, nevertheless, at any time, may (a) take any action it deems appropriate for the care or preservation of such property or of any rights
of Borrower and/or Guarantor or Bank therein; (b) demand, sue for, collect or receive any money or property at any time due, payable or receivable on account of or in exchange for any property pledged as collateral, to Bank to secure Borrower and/or
Guarantor’s Liabilities to Bank; (c) compromise and settle with any person liable on such property; or (d) extend the time of payment or otherwise change the terms of the Loan Documents as to any party liable on the Loan Documents, all without
notice to, without incurring responsibility to, and without affecting any of the Obligations or Liabilities of Guarantor. 
  
 17. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS INSTRUMENT,
AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE,
THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF (“J.A.M.S.”), AND THE “SPECIAL RULES” SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. 
  
 A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF ANY BORROWER’S DOMICILE, OR IF THERE IS REAL OR PERSONAL PROPERTY
COLLATERAL, IN THE COUNTY WHERE SUCH REAL OR PERSONAL PROPERTY IS LOCATED AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED
FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. NOTWITHSTANDING THE FOREGOING, HOWEVER, IN THE EVENT BRUNSWICK CORPORATION SUCCEEDS TO THE RIGHTS OF THE BANK AS THE HOLDER OF THIS GUARANTY, THE ARBITRATION
SHALL BE CONDUCTED IN LAKE COUNTY, ILINOIS. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR 

  

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ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL
60 DAYS. 
  
 B. RESERVATION OF RIGHTS. NOTHING IN
THIS ARBITRATION PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION
AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY,
OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO
SUCH REMEDIES. 
  
 18. Intentionally deleted. 
  
 19. Execution Under Seal. This Guaranty is being executed under seal by Guarantor.

  
 20. NOTICE OF FINAL AGREEMENT. THIS WRITTEN CONTINUING AND UNCONDITIONAL
GUARANTY 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 ORAL AGREEMENTS BETWEEN THE PARTIES. 

 
 IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be executed under seal on
this 17th day of July, 2003. 
  

	Witnessed By:	  	Guarantor:
		
	 /s/ Carol J. Price

	  	 (Seal)


		
	 Carol J. Price, Secretary

	  	  


	 Print Name and Title
	  	Print Individual’s Name
		
	 	  	                        Corporate or Partnership Guarantor:
		
	 	  	                       Fountain Powerboat Industries, Inc.
                           Name of Corporation, Partnership,
etc.

			
	 	  	 By:
	  	 /s/ Reginald M. Fountain, Jr.


	 	  	 Name:
	  	 Reginald M. Fountain, Jr.


	 	  	 Title:
	  	 Chairman, CEO and President


		
	 	  	
 Attest (If
Applicable)

		
	 	  	 [Corporate Seal]


  

	 Corporate Acknowledgment
	  	 
		
	 State of North Carolina        
	  	)
	 	  	)
	 County of
Wake                   
	  	)

  
 This instrument was acknowledged
before me on July 16, 2003, by Reginald M. Fountain, Jr., Chairman, CEO and President of Fountain Powerboat Industries, Inc., a Nevada corporation, on behalf of said corporation. 
  

	 	  	 /s/ Eric Sean Brown


	 (Seal)
	  	 Notary Public
 in and for the State of
North Carolina


		
	 June 27, 2004

	  	 Eric Sean Brown


	 My Commission Expires
	  	                    Print Name of Notary

  
  

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