Exhibit 10.43
AMENDED AND RESTATED UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
THIS AMENDED AND RESTATED UNCONDITIONAL GUARANTY OF PAYMENT AND
PERFORMANCE (this "Guaranty") is made as of December _____, 2001 by ADVANCE
STORES COMPANY, INCORPORATED, a Virginia corporation ("Guarantor"), and amends
and restates that certain Unconditional Guaranty of Payment and Performance
dated as of November 28, 2001 in favor of DAPPER PROPERTIES [I][II][III], a
Delaware limited liability company (together with its successors and assigns,
"Lessor").
1. FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, Guarantor unconditionally, absolutely and irrevocably guarantees
and promises to pay to Lessor, or order, any and all amounts, including, without
limitation, Base Annual Rental, Base Monthly Rental, taxes (including, without
limitation, capital gains and/or income taxes), insurance premiums, impounds,
reimbursements, late charges, default interest, damages, indemnity obligations
and all other amounts, costs, fees, expenses and charges of any kind or type
whatsoever, which may or at any time be due to Lessor and/or Autopar Remainder
[I][II][III], LLC, a Delaware limited liability company ("Remainderman"),
pursuant to the following agreements (collectively, the "Documents"):
A. Sale-Leaseback Agreement, dated as of February 27,
2001, between Lessor and Discount Auto Parts, Inc., a Florida
corporation (together with its successors and assigns, "Lessee"), with
respect to the sale and purchase of certain parcels of real property
and the improvements located thereon (the "Properties");
B. Master Lease, dated as of February 27, 2001, between Lessor
and Lessee by which Lessor leases the Properties to Lessee, as amended
by that certain First Amendment to Lease between Lessor and Lessee
dated as of [November 28][August 28], 2001 [ and that certain Second
Amendment to Master Lease dated as of the date hereof][, that certain
second amendment to master lease dated as of November 28, 2001 and that
certain Third Amendment to Master Lease dated as of the date hereof]
(collectively, the "Lease");
C. Acknowledgement of Master Lease Assignment and
Subordination, Nondisturbance and Attornment Agreement dated as of
February 27, 2001 among Lessee, Lessor, Remainderman, and [GE Capital
Franchise Finance Corporation, a Delaware corporation, successor by
merger to FFCA Acquisition Corporation][Washington Mutual Bank, FA,
successor in interest to FFCA Funding Corporation] ("Lender");
D. Substitution Agreement, dated as of November 28,
2001, among Lessor, Lessee, GE Capital Franchise Finance Corporation,
Washington Mutual Bank, FA, Remainderman, Guarantor and certain other
parties, as amended by that certain First
Amendment to Substitution Agreement dated as of even date herewith
among Lessor, Lessee, GE Capital Franchise Finance Corporation,
Washington Mutual Bank, FA, Remainderman, Western Auto Supply Company,
a Delaware corporation (together with its successors and assigns,
"Western Auto"), Guarantor and certain other parties (collectively,
the "Substitution Agreement");
E. Any other document, agreement, instrument or certificate
contemplated by the Lease, the Substitution Agreement, or any other
documents, agreements, instruments or certificates now or hereafter
entered into between Lessor, Lessee and Western Auto with respect to
the Lease, the Substitution Agreement and the Properties and/or among
Lessor, Remainderman, Lessee and Western Auto with respect to the
Lease, the Substitution Agreement and/or the Properties; and
F. Any amendment of the foregoing documents, agreements,
instruments or certificates now or hereafter entered into by Lessee
and/or Western Auto.
Initially capitalized terms not otherwise defined in this Guaranty shall have
the meanings set forth in the Lease.
2. Guarantor also unconditionally guarantees the full and timely
performance of all obligations to be performed by Lessee and/or Western Auto
under or pursuant to the Documents (the matters which are guaranteed pursuant to
Sections 1 and 2 are hereinafter collectively referred to as the "Obligations").
3. The obligations of Guarantor under this Guaranty are primary, joint
and several and independent of the obligations of Lessee, Western Auto and any
and every other guarantor of the Obligations, and a separate action or actions
may be brought and executed against Guarantor or any other such guarantor,
whether or not such action is brought against Lessee, Western Auto or any other
such guarantor and whether or not Lessee, Western Auto or any other such
guarantor be joined in such action or actions.
4. This is an absolute and unconditional guaranty of payment and
performance and not of collection and Guarantor unconditionally (a) waives any
requirement that Lessor first make demand upon, or seek to enforce or exhaust
remedies against, Lessee, Western Auto or any other person or entity (including
any other guarantor) or any of the collateral or property of Lessee, Western
Auto or such other person or entity before demanding payment from, or seeking to
enforce this Guaranty against, Guarantor; (b) waives and agrees not to assert
any and all rights, benefits and defenses which might otherwise be available
under the provisions of Ariz. Rev. Stat. ss.ss. 12-1641, 12 -1642 et seq.,
44-141, 44-142 or 47-3605, Arizona Rules of Civil Procedure Rule 17(f), or any
other Arizona statutes or rules (including any statutes or rules amending,
supplementing or supplanting same) which might operate, contrary to Guarantor's
agreements in this Guaranty, to limit Guarantor's liability under, or the
enforcement of, this Guaranty; (c) covenants that this Guaranty will not be
discharged until all of the Obligations are fully satisfied; and (d) agrees that
this Guaranty shall remain in full effect without regard to, and shall not be
affected or impaired by, any invalidity, irregularity or unenforceability in
whole or in part of any of the Documents, or any limitation of the liability of
Lessee, Western Auto or
2
Guarantor thereunder, or any limitation on the method or terms of payment
thereunder which may now or hereafter be caused or imposed in any manner
whatsoever.
5. This Guaranty is a continuing guaranty, and the obligations,
undertakings and conditions to be performed or observed by Guarantor under this
Guaranty shall not be affected or impaired by reason of the happening from time
to time of the following with respect to the Documents, all without notice to,
or the further consent of, Guarantor:
(a) the waiver by Lessor of the observance or performance by
Lessee, Western Auto or Guarantor of any of the obligations,
undertakings, conditions or other provisions contained in any of the
Documents, except to the extent of such waiver;
(b) the extension, in whole or in part, of the time for
payment of any amount owing or payable under the Documents;
(c) the modification or amendment (whether material or
otherwise) of any of the obligations of Lessee or Western Auto under,
or any other provisions of, any of the Documents, except to the extent
of such modification or amendment;
(d) the taking or the omission of any of the actions
referred to in any of the Documents (including, without limitation,
the giving of any consent referred to therein);
(e) any failure, omission, delay or lack on the part of Lessor
to enforce, assert or exercise any provision of the Documents,
including any right, power or remedy conferred on Lessor in any of the
Documents or any action on the part of Lessor granting indulgence or
extension in any form;
(f) the assignment to or assumption by any third party of
any or all of the rights or obligations of Lessee or Western Auto
under all or any of the Documents;
(g) the release or discharge of Lessee or Western Auto from
the performance or observance of any obligation, undertaking or
condition to be performed by Lessee or Western Auto under any of the
Documents by operation of law, including any rejection or disaffirmance
of any of the Documents in any bankruptcy or similar proceedings;
(h) the receipt and acceptance by Lessor or any other person
or entity of notes, checks or other instruments for the payment of
money and extensions and renewals thereof;
(i) any action, inaction or election of remedies by Lessor
which results in any impairment or destruction of any subrogation
rights of Guarantor, or any rights of Guarantor to proceed against any
other person or entity for reimbursement;
(j) any setoff, defense, counterclaim, abatement, recoupment,
reduction, change in law or any other event or circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor, indemnitor or surety under the laws of the State of Arizona,
the states in which the Properties are located or any other
jurisdiction;
3
(k) any substitution of a Substitute Property for a Property
pursuant to the terms and conditions of the Lease; and
(l) the termination or renewal of any of the Obligations or
any other provision thereof.
6. Guarantor represents and warrants to Lessor that:
(a) Neither the execution nor delivery of this Guaranty nor
fulfillment of nor compliance with the terms and provisions hereof will
conflict with, or result in a breach of the terms or conditions of, or
constitute a default under, any agreement or instrument to which
Guarantor is now a party or by which Guarantor may be bound, or result
in the creation of any lien, charge or encumbrance upon any property or
assets of Guarantor, which conflict, breach, default, lien, charge or
encumbrance could result in a material adverse change in the financial
condition of Guarantor;
(b) No further consents, approvals or authorizations are
required for the execution and delivery of this Guaranty by Guarantor
or for Guarantor's compliance with the terms and provisions of this
Guaranty;
(c) This Guaranty is the legal, valid and binding agreement of
Guarantor and is enforceable against Guarantor in accordance with its
terms;
(d) Guarantor has the full power, authority, capacity and
legal right to execute and deliver this Guaranty, and, to the extent
Guarantor is a corporation, partnership, limited liability company or
other form of entity, the parties executing this Guaranty on behalf of
Guarantor are fully authorized and directed to execute the same to bind
Guarantor;
(e) Guarantor is not a "foreign individual," "foreign
corporation," "foreign partnership," "foreign limited liability
company," "foreign trust," or "foreign estate," as those terms are
defined in the U.S. Internal Revenue Code and the regulations
promulgated thereunder. Guarantor's Social Security Number or Federal
Tax Identification Number is accurately set forth herein next to the
signature of Guarantor;
(f) Guarantor has delivered to Lessor either audited financial
statements or, if Guarantor does not have audited financial statements,
certified financial statements. Such financial statements and other
information relating to Guarantor heretofore delivered to Lessor are
true, correct and complete in all material respects as of the date of
this Guaranty. Guarantor understands that Lessor is relying upon such
information, and Guarantor represents that such reliance is reasonable.
The financial statements of Guarantor delivered by Lessee to Lessor
pursuant to the Lease have been prepared in accordance with generally
accepted accounting principles consistently applied (subject in the
case of interim financial statements to the absence of footnotes and
normal year-end adjustments) and accurately reflect, as of the date of
this Guaranty, the financial condition of Guarantor; and
4
(g) The Documents are conclusively presumed to have been
signed in reliance on this Guaranty, and the assumption by Guarantor of
its obligations under this Guaranty results in direct financial benefit
to Guarantor.
7. (a) Guarantor covenants to Lessor that, during the term of this
Guaranty, Guarantor will not transfer or dispose of any material part of its
assets in a single transaction or a series of related transactions except (i) in
the ordinary course of business for full and fair consideration and reasonably
equivalent value, or (ii) as otherwise permitted by this Section 7.
(b) Guarantor covenants to Lessor that, during the term of this
Guaranty, no Subject Transfer shall occur without the prior written consent of
Lessor, except as provided below. A "Subject Transfer" shall mean (i) the
acquisition by a Person or a "group" (as defined in Section 13(d) of the
Securities Exchange Act of 1934) of 50% or more of the voting power of Guarantor
and such Person or group has made a filing under Section 13(d) of the Securities
Exchange Act of 1934 affirmatively stating such Person's or group's intent to
change control of the Guarantor, (ii) the consummation by the Guarantor of a
merger, consolidation or other reorganization if the percentage of the voting
common stock of the surviving or resulting entity held or received by all
persons who were owners of common stock of the Guarantor immediately prior to
such merger, consolidation or reorganization is less than 50.1% of the total
voting common stock of the surviving or resulting entity outstanding, on a fully
diluted basis, immediately after such merger, consolidation or reorganization
and after giving effect to any additional issuance of voting common stock
contemplated by the plan for such merger, consolidation or reorganization, or
(iii) a sale or other transfer of all or substantially all of the assets of
Guarantor.
(c) Notwithstanding the provisions of Section 7(b), Guarantor may
complete a Subject Transfer, and Lessor shall be deemed to have consented to
such Subject Transfer, provided that:
(1) no Event of Default shall have occurred and be continuing
under the Lease and no event of default shall be have occurred and be
continuing under this Guaranty as of the date on which Guarantor gives
Lessor notice of the proposed Subject Transfer and as of the date on
which the Subject Transfer is consummated;
(2) after giving effect to such Subject Transfer, whether as a
single transaction or as a series of transactions, Guarantor, including
any surviving entity of such Subject Transfer and/or successor of
Guarantor, when considered together with Guarantor's consolidated
subsidiaries (including without limitation Lessee and Western Auto) has
a consolidated net worth determined in accordance with GAAP of not less
than the sum of (1) $250,000,000, plus (2) fifty (50%) percent of Net
Income, if positive, for each Fiscal Year ending after December 30,
2001 (i.e., exclusive of any negative Net Income for any such Fiscal
Year) determined on a cumulative basis subsequent to December 30, 2001,
plus (3) seventy-five (75%) percent of the proceeds of any issuance of
equity securities of Lessee and/or Guarantor, without duplication, or
other contributions to the capital of Lessee and/or Guarantor, without
duplication, subsequent to December 30, 2001;
(3) Guarantor, including any surviving entity of such Subject
Transfer and/or successor of Guarantor, shall not be released from any
of its obligations under this Guaranty, and such surviving entity or
successor entity, as applicable, has assumed in writing or by
5
operation of law (provided Lessor has received a satisfactory opinion
of counsel to Guarantor confirming that such assumption will occur by
operation of law) all of Guarantor's obligations under this Guaranty;
and
(4) either the FCCR Condition or the Rating Agency Condition
has been satisfied. As used herein, the term "FCCR Condition" shall
mean that the Aggregate Fixed Charge Coverage Ratio for all of the
Properties, taken as a whole, must be at least equal to 3.0:1 for the
twelve month period of time immediately preceding the end of the fiscal
quarter of Lessee which closed prior to the date on which Guarantor
gives Lessor notice of the proposed Subject Transfer. As used herein,
the term "Rating Agency Condition" shall mean, if and to the extent
that the loans contemplated by the Loan Documents have been subject to
a Securitization, Lender shall have received a notice or confirmation
of the rating agencies which have issued ratings in connection with
such Securitization that such Subject Transfer will not cause any of
such rating agencies to downgrade, modify, withdraw or qualify any of
such ratings. Guarantor shall have the right to satisfy the FCCR
Condition by (i) paying or causing to be paid to Lessor the Subject
Transfer Rent Prepayment Amount (as hereinafter defined), and (ii)
paying or causing to be paid to Lessor the Prepayment Charges payable
by Lessor to Lender as a result of the payment by Guarantor to Lessor
of the Subject Transfer Rent Prepayment Amount, provided that the
payment of the Subject Transfer Rent Prepayment Amount and such
Prepayment Charges shall be made prior to or simultaneously with the
consummation of the Subject Transfer. Upon payment of the Subject
Transfer Rent Prepayment Amount and Prepayment Charges as contemplated
by the preceding sentence, Lessor agrees that the Base Monthly Rental
beginning with the calendar month immediately following the month in
which such payment is made (or, if such payment is made on the first
day of a calendar month, beginning with the calendar month in which
such payment is made) shall be equal to the Base Monthly Rental then in
effect reduced by the Subject Transfer Rent Reduction Amount (as
hereinafter defined).
For purposes of this Section 7(c), the following terms shall
be defined as set forth below:
"Net Income" means, for any period, the consolidated net
income (or loss) of Guarantor determined in accordance with GAAP, but
excluding: (a) the income of any Person (other than Guarantor and its
subsidiaries) in which Guarantor or any subsidiary of Guarantor has an
ownership interest, unless received by Guarantor or any subsidiary of
Guarantor in a cash distribution; (b) any after-tax gains or losses
attributable to an asset disposition; and (c) to the extent not
included in clauses (a) and (b) immediately above, any after-tax
extraordinary, non-cash or non-recurring gains or losses.
"Subject Transfer Rent Prepayment Amount" means the present
value, discounted on a monthly basis at 9.23%, of the Subject Transfer
Rent Reduction Amount for each month beginning with the calendar month
immediately following the month in which the Subject Transfer Rent
Prepayment Amount is paid (or, if the Subject Transfer Rent Prepayment
Amount is paid on the first day of a calendar month, beginning with the
calendar month in which the Subject Transfer Rent Prepayment Amount is
paid) and ending with the calendar month of February, 2021, inclusive.
6
"Subject Transfer Rent Reduction Amount" the product of (x)
the Base Monthly Rental for the last month of the fiscal quarter of
Lessee which ended prior to the date on which Guarantor gives Lessor
notice of the proposed Subject Transfer and (y) the Subject Transfer
FCCR Shortfall Percentage. For purposes of illustration and not
limitation, if (i) Lessee's Aggregate Fixed Charge Coverage Ratio for
the Fiscal Year ending May 27, 2010 was 2.0 (which results in a Subject
Transfer FCCR Shortfall Percentage of 33%), (ii) Guarantor paid the
Subject Transfer Rent Prepayment Amount on August 15, 2010, and (iii)
the Base Monthly Rental for August, 2010 was $100, then the Base
Monthly Rental payment beginning on September 1, 2010 shall be equal to
the Base Monthly Rental for August, 2010 reduced by the sum of $33.33.
"Subject Transfer FCCR Shortfall Percentage" means the
percentage represented by (x) 1 minus (y) a fraction, the numerator of
which shall be the Aggregate Fixed Charge Coverage Ratio for the twelve
month period of time immediately preceding the end of the fiscal
quarter of Lessee which closed prior to the date on which Guarantor
gives Lessor notice of the proposed Subject Transfer, and the
denominator of which shall be 3.
(d) Guarantor shall notify Lessor and Lender at least 30 days but not
more than 90 days prior to the completion of any Subject Transfer, whether or
not the consent of Lessor to such Subject Transfer is deemed given under the
terms of Section 7(c) (each, a "Subject Transfer Notice"). Guarantor shall
provide Lessor and Lender with information reasonably sufficient to enable
Lessor and Lender to determine that Guarantor has satisfied the conditions to
any Subject Transfer, including, without limitation, such financial information
as Lessor and Lender may reasonably require to enable them to determine that the
net worth and/or Aggregate Fixed Charge Coverage Ratio requirements set forth in
Section 7(c) have been satisfied, or will be satisfied simultaneously with the
completion of the Subject Transfer. In addition, to the extent that the loans
contemplated by the Loan Documents have been subject to a Securitization,
Guarantor agrees to cooperate in good faith in connection with providing such
information as the rating agencies may reasonably require to evaluate any such
proposed Subject Transfer.
(e) Within 45 days after the end of each fiscal quarter and within 120
days after the end of each fiscal year of Guarantor, Guarantor shall deliver to
Lessor complete financial statements of Guarantor, including a balance sheet,
profit and loss statement, statement of changes in cash flows and all other
related schedules for the fiscal period then ended. All such financial
statements shall be prepared in accordance with generally accepted accounting
principles, consistently applied from period to period (subject in the case of
interim financial statements to the absence of footnotes and normal year-end
adjustments), and shall be certified to be accurate and complete by Guarantor
(or the Treasurer or other appropriate officer of Guarantor). Guarantor
understands that Lessor is relying upon such financial statements and Guarantor
represents that such reliance is reasonable. The financial statements delivered
to Lessor need not be audited, but Guarantor shall deliver to Lessor copies of
any audited financial statements of Guarantor which may be prepared, as soon as
they are available.
(f) Notwithstanding the foregoing, but subject to the satisfaction of
the terms and conditions set forth in Section 26.F of the Lease, Lessor consents
to the liquidation of Lessee with and into Guarantor, or the merger of Lessee
with and into Guarantor.
7
8. This Guaranty shall commence upon execution and delivery of any of
the Documents and shall continue in full force and effect until all of the
Obligations are duly, finally and permanently paid, performed and discharged and
are not subject to any right of reborrowing or extension by Lessee or Western
Auto, and Lessor gives Guarantor written notice of the full and final
satisfaction of the Obligations. The Obligations shall not be considered fully
paid, performed and discharged unless and until all payments by Lessee or
Western Auto to Lessor are no longer subject to any right on the part of any
person whomsoever, including but not limited to Lessee, Western Auto, Lessee or
Western Auto as a debtor-in-possession and/or any trustee in bankruptcy, to
disgorge such payments or seek to recoup the amount of such payments or any part
thereof. The foregoing shall include, by way of example and not by way of
limitation, all rights to recover preferences voidable under Title 11 of the
United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the
"Code"). In the event that any such payments by Lessee or Western Auto to Lessor
are disgorged after the making thereof, in whole or in part, or settled without
litigation, to the extent of such disgorgement or settlement, Guarantor shall be
liable for the full amount Lessor is required to repay plus interest, late
charges, attorney's fees and any and all expenses paid or incurred by Lessor in
connection therewith.
9. Guarantor shall not assert any right of subrogation, indemnity or
reimbursement against Lessee or Western Auto until all of the Obligations have
been fully satisfied. Furthermore, Guarantor hereby unconditionally and
irrevocably waives (a) any right to participate in any security now or hereafter
held by Lessor or in any claim or remedy of Lessor or any other person against
Lessee or Western Auto with respect to the Obligations, (b) any statute of
limitations affecting Guarantor's liability hereunder, (c) all principles and
provisions of law which conflict with the terms of this Guaranty, and (d)
diligence, presentment, protest, demand for performance, notice of
nonperformance, notice of intent to accelerate, notice of acceleration, notice
of protest, notice of dishonor, notice of execution of any Documents, notice of
extension, renewal, alteration or amendment, notice of acceptance of this
Guaranty, notice of defaults under any of the Documents and all other notices
whatsoever.
10. It is not necessary for Lessor to inquire into the powers of
Lessee, Western Auto or their respective officers, directors, partners or agents
acting or purporting to act on their behalf, and Guarantor shall be liable for
the Obligations in accordance with their terms notwithstanding any lack of
authorization or defect in execution or delivery by Lessee or Western Auto.
11. In addition to the amounts guaranteed under this Guaranty,
Guarantor agrees to pay (i) all of Lessor's reasonable attorneys' fees and other
costs and expenses which may be incurred by Lessor in the enforcement of this
Guaranty and (ii) interest (including postpetition interest to the extent a
petition is filed by or against Lessee under the Code) at the Default Rate on
any Obligations not paid when due.
12. This Guaranty shall apply to the parties hereto and their
successors and assigns according to the context hereof and without regard to the
number or gender of words or expressions used herein.
13. Guarantor hereby agrees to indemnify and hold harmless Lessor for,
from and against any loss, cause of action, claim, cost, expense or fee,
including but not limited to
8
reasonable attorneys' fees payable by Lessor to its counsel, any attorneys' fees
payable by Lessor to any other counsel, and court costs, suffered or occasioned
by the failure of Lessee or Western Auto to satisfy their respective obligations
under the Documents. The agreement to indemnify Lessor contained in this
paragraph shall be enforceable notwithstanding the invalidity or
unenforceability of the Documents or any of them or the invalidity or
unenforceability of any other paragraph contained in this Guaranty.
14. All moneys available to Lessor for application in payment or
reduction of the liabilities of Lessee or Western Auto under the Documents may
be applied by Lessor to the payment or reduction of such liabilities of Lessee
or Western Auto, in such manner, in such amounts and at such time or times as
Lessor may elect.
15. All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given pursuant to this Guaranty shall be
in writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return receipt
requested, and shall be deemed to have been delivered upon (a) receipt, if hand
delivered, (b) transmission, if delivered by facsimile, (c) the next Business
Day if delivered by express overnight delivery service or (d) the third Business
Day following the day of deposit of such notice with the United States Postal
Service, if sent by certified or registered mail, return receipt requested.
Notices shall be provided to the addresses (or facsimile numbers, as applicable)
specified below:
If to Guarantor: Advance Stores Company, Incorporated
5673 Airport Road
Roanoke, VA 24012
Attention: General Counsel
Telephone: (540) 561-3325
Telecopy: (540) 561-1448
If to Lessor: Dapper Properties [I][II][III], LLC
c/o U.S. Realty Advisors, LLC
1370 Avenue of the Americas
New York, NY 10019
Attention: Mr. David M. Ledy
Telephone: (212) 581-4540
Telecopy: (212) 581-4950
With a copy to: Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Attention: Kenneth S. Hilton, Esq.
Telephone: (212) 969-3000
Telecopy: (212) 969-2900
or to such other address or such other person as either Guarantor or Lessor may
from time to time hereafter specify to the other party in a notice delivered in
the manner provided above. No
9
such notices, demands, requests, consents, approvals or other communications
shall be valid unless Lender is provided a duplicate original thereof at the
following address:
Dennis L. Ruben, Esq.
Executive Vice President, General Counsel
and Secretary
GE Capital Franchise Finance Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (480) 585-4500
Telecopy: (480) 585-2226
or to such other address or such other person as Lender may from time to time
specify to Lessor and Guarantor in a notice delivered in the manner provided
above.
16. This Guaranty is delivered in the State of Arizona, and it is the
intent of Guarantor and Lessor that this Guaranty shall be deemed to be a
contract made under and governed by the internal laws of the State of Arizona,
without regard to its principles of conflicts of law. For purposes of any action
or proceeding involving this Guaranty, Guarantor submits to the jurisdiction of
all federal and state courts located in the State of Arizona and consents that
it may be served with any process or paper by registered mail or by personal
service within or without the State of Arizona in accordance with applicable
law. Furthermore, Guarantor waives and agrees not to assert in any such action,
suit or proceeding that it is not personally subject to the jurisdiction of such
courts, that the action, suit or proceeding is brought in an inconvenient forum
or that venue of the action, suit or proceeding is improper. Nothing contained
in this section shall limit or restrict the right of Lessor to commence any
proceeding in the federal or state courts located in the states in which the
Properties are located and/or where Guarantor maintains its chief executive
office to the extent Lessor deems such proceeding necessary or advisable to
exercise remedies available under the Documents.
17. Guarantor and Lessor, by its execution of the Lease and its
acceptance of this Guaranty, intend that:
(i) the Lease constitutes a single master lease of all, but
not less than all, of the Properties and that Lessor and Lessee have
executed and delivered the Lease with the understanding that the Lease
constitutes a unitary, unseverable instrument pertaining to all, but
not less than all, of the Properties, and that neither the Lease nor
the duties, obligations or rights of Lessee may be allocated or
otherwise divided among the Properties by Lessee;
(ii) the Lease is a "true lease" and not a financing lease,
capital lease, mortgage, equitable mortgage, deed of trust, trust
agreement, security agreement or other financing or trust arrangement,
and the economic realities of the Lease are those of a true lease; and
(iii) the business relationship created by the Lease and any
related documents is solely that of a long-term commercial lease
between landlord and tenant and has been entered into by both parties
in reliance upon the economic and legal bargains contained herein.
10
The expressions of intent set forth in this Section are a material
inducement to Lessor entering into the Lease.
18. Guarantor acknowledges that Lessor did not prepare or assist in the
preparation of any of the projected financial figures used by Lessee in
analyzing the economic viability and feasibility of the transactions
contemplated by the Lease.
19. All of Lessor's rights and remedies under the Documents and this
Guaranty are intended to be distinct, separate and cumulative and no such right
and remedy is intended to be in exclusion of or a waiver of any of the others.
20. Except as otherwise contemplated by Section 26 of this Guaranty,
this Guaranty is solely for the benefit of Lessor, its successors and assigns
and is not intended to nor shall it be deemed to be for the benefit of any third
party, including, without limitation, Lessee or Western Auto.
21. If any provision of this Guaranty is unenforceable, the
enforceability of the other provisions shall not be affected and they shall
remain in full force and effect.
22. Guarantor agrees to take such action and to sign such other
documents as may be appropriate to carry out the intent of this Guaranty.
23. This Guaranty may be executed in one or more counterparts,
each of which shall be deemed an original.
24. LESSOR, BY ACCEPTING THIS GUARANTY, AND GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY LESSOR OR GUARANTOR AGAINST THE OTHER OR THEIR
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY, THE RELATIONSHIP OF LESSOR, LESSEE, WESTERN AUTO AND/OR GUARANTOR,
LESSEE'S USE OR OCCUPANCY OF THE PROPERTIES, AND/OR ANY CLAIM FOR INJURY OR
DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY LESSOR AND
GUARANTOR OF ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND
IS A MATERIAL INDUCEMENT FOR LESSOR ACCEPTING THIS GUARANTY. FURTHERMORE,
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM
LESSOR OR ANY OF LESSOR'S AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES
OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY GUARANTOR AGAINST LESSOR OR
ANY OF LESSOR'S AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF
THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS GUARANTY OR ANY DOCUMENTS CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER
BY GUARANTOR OF ANY RIGHT IT
11
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN
NEGOTIATED AND IS A MATERIAL INDUCEMENT FOR LESSOR ACCEPTING THIS GUARANTY.
25. Guarantor shall be liable under this Guaranty for the maximum
amount of such liability that can be incurred hereby without rendering this
Guaranty, as it relates to Guarantor, voidable under applicable laws relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount.
Guarantor agrees that the Obligations may at any time and from time to time
exceed the amount of the liability of Guarantor hereunder without impairing this
Guaranty or affecting the rights and remedies of Lessor hereunder.
26. This Guaranty is executed and delivered to induce Lessor to consent
to the substitution of the Dapper [I][II][III] Replaced Properties (as defined
in the Substitution Agreement) with the Dapper [I][II][III] Substitute
Properties (as defined in the Substitution Agreement) as contemplated by the
Substitution Agreement, and is solely for the benefit of Lessor and its
successors and assigns, including, without limitation, Lender and its successors
and assigns under the Loan Documents, and is not intended to nor shall it be
deemed to be for the benefit of any other third party, including, without
limitation, Lessee or Western Auto. This Guaranty is a continuing Guaranty and
shall be binding upon Guarantor and its successors and assigns; provided,
however, without the prior written consent of Lessor, Guarantor shall not assign
this Guaranty or any of the rights or obligations of Guarantor hereunder, except
as contemplated by Section 7.
27. Guarantor acknowledges and agrees that (i) Lessor intends to
collaterally assign all of its right, title and interest under the Lease and
this Guaranty to Lender pursuant to the Loan Documents and (ii) upon the
exercise of Lender's remedies set forth in such Loan Documents, all of the
rights, powers and privileges of Lessor shall be deemed the rights, powers and
privileges of Lender and Lender shall be entitled to exercise all of the rights
and remedies of "Lessor" under this Guaranty, the Lease and the Loan Documents.
Guarantor hereby consents to, and no further consent by Guarantor shall be
required for, any further assignment of rights of Lessor hereunder or in
connection with any transfer by Lender. All notices, certificates, reports or
other information required to be delivered to Lessor under this Guaranty shall
be delivered simultaneously to Lender. Notwithstanding any provision herein to
the contrary, this Guaranty shall not be deemed to create any obligation of or
liability for Lender. Guarantor intends that Lender shall be an intended third
party beneficiary of this Guaranty but without any corresponding responsibility,
liability or obligation to Guarantor.
28. Guarantor agrees that:
(a) the Guaranty shall not be changed, amended, altered,
modified, or terminated without the prior written consent of Lender;
(b) any consent, approval, agreement or waiver provided by
Lessor pursuant to this Guaranty shall not be valid unless consented
to in writing by Lender; and
(c) Lessor shall in no event be deemed to have unreasonably
withheld any approval under this Guaranty if Lender shall not have
given its approval.
12
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty effective as of the day first above written.
ADVANCE STORES COMPANY,
INCORPORATED, a Virginia corporation
Federal Tax ID No.
- -----------------------------
By
--------------------------------------
Printed Name
----------------------------
Its
-------------------------------------
STATE OF ___________________ )
) SS.
COUNTY OF __________________ )
The foregoing instrument was acknowledged before me on ____________,
2001, by _____________________, _______________ of Advance Stores Company,
Incorporated, a Virginia corporation, on behalf of the corporation.
______________________
Notary Public
My Commission Expires:
_____________________________