Exhibit 10.37
Subsidiary Guarantee
Subject to Section 11.06 of the Indenture, each of the undersigned and
each other Guarantor hereby and at all times, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes and the
Obligations of the Company under the Notes or under the Indenture, that: (a) the
principal of, premium, if any, interest and Liquidated Damages, if any, on the
Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration, redemption or otherwise, and
interest on overdue principal, premium, if any, (to the extent permitted by law)
interest on any interest, if any, and Liquidated Damages, if any, on the Notes
and all other payment Obligations of the Company to the Holders or the Trustee
under the Indenture or under the Notes will be promptly paid in full and
performed, all in accordance with the terms thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
payment Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors will be
jointly and severally obligated to pay the same immediately.
The obligations of the undersigned to the Holders and to the Trustee
pursuant to this Subsidiary Guarantee and the Indenture are expressly set forth
in Article 11 of the Indenture, and reference is hereby made to such Indenture
for the precise terms of this Subsidiary Guarantee. The terms of Article 11 of
the Indenture are incorporated herein by reference. This Subsidiary Guarantee is
subject to release as and to the extent provided in Section 11.04 of the
Indenture.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each of the undersigned and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a
Subsidiary Guarantee of payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note to which this
Subsidiary Guarantee relates shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
The maximum aggregate amount of the obligations guaranteed under the
Indenture and the Notes by any Guarantor shall not exceed the maximum amount
that can be thereby guaranteed by that Guarantor without rendering the
Subsidiary Guarantee, as it relates to such Guarantor, voidable
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under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
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Dated as of November 28, 2001 DISCOUNT AUTO PARTS, INC.
By: /s/ Eric M. Margolin
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Name: Eric M. Margolin
Title: Assistant Secretary
DAP ACCEPTANCE CORP.
By: /s/ Eric M. Margolin
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Name: Eric M. Margolin
Title: Assistant Secretary
WESTERN AUTO OF PUERTO RICO, INC.
By: /s/ Eric M. Margolin
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Name: Eric M. Margolin
Title: Senior Vice President, General
Counsel and Secretary
WESTERN AUTO OF ST. THOMAS, INC.
By: /s/ Eric M. Margolin
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Name: Eric M. Margolin
Title: Senior Vice President, General
Counsel and Secretary
WASCO INSURANCE AGENCY, INC.
By: /s/ Eric M. Margolin
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Name: Eric M. Margolin
Title: Senior Vice President, General
Counsel and Secretary
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ADVANCE MERCHANDISING COMPANY, INC.
By: /s/ Eric M. Margolin
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Name: Eric M. Margolin
Title: Senior Vice President, General
Counsel and Secretary
ADVANCE AIRCRAFT COMPANY, INC.
By: /s/ Eric M. Margolin
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Name: Eric M. Margolin
Title: Senior Vice President, General
Counsel and Secretary
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