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EXHIBIT 10.5
AMENDED AND RESTATED
GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT (the "GUARANTY") made and
executed this 20th day of February, 1997 by:
XXXXXX X. XXXXXX, III, and XXXXXX XXX XXXXXX, his wife, 0000 Xxx
Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000 (hereinafter collectively called
the "GUARANTOR")
to
A. P. S., INC., a Delaware corporation, and AUTOPARTS FINANCE COMPANY,
INC., a Delaware corporation, 00000 Xxxx X. Xxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000 (hereinafter collectively called the
"CREDITOR")
to extend credit to or otherwise become or remain the creditor of:
AUTOMOTIVE ONE PARTS STORES, INC., a Florida corporation, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter called
the "BORROWER").
W I T N E S S E T H:
In consideration of the foregoing, the Guarantor does hereby agree
with the Creditor as follows:
WHEREAS, the Borrower is as of the dates noted below in parenthesis
indebted to the Creditor under various obligations generally described as
follows:
ACCRUED & UNPAID ACCRUED & UNPAID
PRINCIPAL INTEREST AT NON- INTEREST AT
BALANCE DEFAULT RATE DEFAULT RATE
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(i) A.P.S. $2,434,995.73 $304,743.21 $132,455.11
Indebtedness
(01/31/97)
(ii) AFCO $2,465,467.67 $191,190.16 $ 13,339.83
Indebtedness
(01/31/97)
(iii) Open Account $1,473,533.57 N/A $ 72,367.70
Indebtedness
(01/25/97)
With the first two (2) obligations being evidenced by specific promissory notes
and the last obligation being an open account indebtedness due and owing to the
Creditor under a certain Continuing Credit Agreement and Security Agreement
dated December 17, 1993; and
WHEREAS, the Guarantor each previously executed or was required to
execute in favor of each Guarantor a guaranty agreement by which each Guarantor
absolutely and unconditionally guaranteed all obligations owing to any of the
Creditor by the Borrower, including any future or later indebtedness.
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WHEREAS, the indebtedness described above has become in default and
the Borrower has requested the Creditor to modify the terms of the indebtedness
including an extension of the indebtedness and the Creditor is prepared to do
so pursuant to certain loan documents and other conditions, one of which
conditions is the continuing agreement by the Guarantors that they remain
liable as guarantors for all such indebtedness and that the Guarantor execute
an Amended and Restated Guaranty Agreement for all such obligations;
WHEREAS, the Creditor is unwilling to extend and/or modify or
reinstate from default the existing indebtedness of the Borrower unless the
Guarantor enters into this Guaranty.
NOW, THEREFORE, in consideration of the foregoing, it is agreed:
1. OBLIGATION OF GUARANTOR. The Guarantor absolutely and unconditionally
guarantees to the Creditor, its successors and assigns (whether collateral
assigns or otherwise), the prompt and full payment in United States currency
and performance to the Creditor at the place of business of the Creditor set
forth above or at such other place and to such other person as the Creditor may
designate at maturity of any and every obligation, in connection with which
either as maker, drawer, guarantor, endorser or otherwise, whether directly,
indirectly or contingently, the Borrower is, either individually or jointly or
severally with any other person or persons, now or shall become at any time in
the future liable to the Creditor, with interest thereon at the rate or rates
provided in the obligations guaranteed hereby or at the maximum rate allowed
from time to time by law in Florida, whichever is less, until payment in full
has been received by Creditor, together with all attorneys' fees, costs and
expenses of collection whether suit be brought or not, including costs,
expenses and attorneys, fees on appeal if an appeal is taken from any suit,
incurred by the Creditor, in connection with any matter covered by this
Guaranty. The Guarantor also absolutely and unconditionally guarantees the
full and timely performance of all duties and obligations whatsoever of the
Borrower to Creditor, whether now existing or hereafter arising, and agrees in
the event the Borrower fails to fully and timely perform any of said duties and
obligations to fully and timely perform same. The obligations under this
paragraph include, but are not limited to, the three (3) specific obligations
set forth above which include the two (2) promissory Notes, one to each of the
Creditor as well as what is referred to as the "Open Account Indebtedness"
which is the obligation for the purchase of Automotive Parts Stores, Inc. from
time to time by the Borrower from one or more of the Creditor.
2. TERM OF GUARANTY. This Guaranty will expire when all (and not
less than all) of the following have occurred:
(a) The A.P.S. Indebtedness (including all
current and future interest) has been paid to the Creditor in
full; and
(b) The AFCO Indebtedness (including all current
and future interest) has been paid to the Creditor in full;
and
(c) The open Account Indebtedness (including all
current and future interest and all additional purchases
made by the Borrower from the Creditor) has been paid to the
Creditor in full, the Product Purchase Agreement has been
terminated, and the Borrower no longer has any right
whatsoever to purchase on credit any product from any
Creditor; and
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(d) The Borrower has paid to the Creditor all
other amounts due or to become due (e.g. additional interest,
amounts due for all purchases from the Creditor, etc.) to the
Creditor under any other agreement between the Borrower and
any Creditor, including but not limited to, any amounts due or
to become due under the Loan Agreement dated October 25, 1995
as modified by the Loan Modification Agreement of even date
herewith.
The Guarantor has no right to cancel this Guaranty prior to all the events set
forth above all having occurred.
3. BANKRUPTCY OF BORROWER. Notwithstanding that the Guaranty may
have been canceled under paragraph 2, and/or returned to the Guarantor, to the
extent the Borrower has made any payments to the Creditor within the three
hundred and ninety (390) day period following the date this Guaranty was so
canceled, and the Guarantor was obligated under this Guaranty for said
payments, the liability of the Guarantor hereunder shall at all times continue
for the amounts so paid by the Borrower to the Creditor. If, for any
reason,(e.g. bankruptcy, or otherwise, the Creditor is not permitted to retain
the payments so made by the Borrower during said three hundred and ninety (390)
day period, the Guarantor shall be liable under this Guaranty for the amount of
such payments as if this Guaranty had never been canceled and the Creditor
shall be entitled to recover said amount so paid by the Borrower within said
three hundred and ninety (390) day period. Anything in this Guaranty to the
contrary notwithstanding, if at any time this Guaranty is to be canceled under
the provisions of paragraph 2. the Creditor may retain this Guaranty for a
period of one hundred twenty (120) days after the date said Guaranty is to be
so canceled and in the event no bankruptcy petition has been filed against the
Borrower for the three hundred and ninety (390) day period following the date
the Guaranty is to be so canceled, then, in that event, the Guaranty shall be
returned to the Guarantor. If, however, a bankruptcy petition has been filed
against the Borrower during said three hundred and ninety (390) day period and
the Borrower has made payments to the Creditor during said three hundred and
ninety (390) day period, this Guaranty shall not be canceled and/or returned to
the Guarantor unless and until a decision by a court of competent jurisdiction,
or other agreement has been entered or reached, pursuant to which the Creditor
shall be entitled to retain all such monies paid during said three hundred and
ninety (390) day period. If, as set forth above, the Creditor is obligated to
return to the Borrower any monies so paid during said three hundred and ninety
(390) day period, this Guaranty shall not be canceled (notwithstanding it being
marked "CANCELED"_and returned to the Guarantor) and the Guarantor shall
continue to be liable to the Creditor for all monies paid during said three
hundred and ninety (390) day period. If the Creditor shall have marked this
Guaranty "CANCELED"_and/or returned this Guaranty to the Guarantor, and under
the provisions of this paragraph 3 or paragraph 2, the Guarantor has continuing
liability to the Creditor for certain amounts which the Creditor has or is
obligated to return to the Borrower, then, in such case, the Creditor may
enforce its rights under this Guaranty upon any copy of this Guaranty
notwithstanding the fact that the original of this Guaranty may have been
marked "CANCELED" and/or returned to the Guarantor. Anything in this Guaranty
to the contrary notwithstanding, the Creditor may retain this Guaranty for a
period of three hundred ninety (390) days after the date of payment in full of
all of the Obligations and in the event no bankruptcy petition has been filed
against the Borrower for the one (1) year period following such date of payment
in full of said obligations, then, in that event, the Guaranty shall be deemed
to have been canceled as of such date of the payment of the Obligations in
full. If, however, a bankruptcy petition has been filed against the Borrower
during said one-year
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period, this Guaranty shall not be canceled unless and until a final,
non-appealable decision by a court of competent jurisdiction or other agreement
has been entered or reached pursuant to which the Creditor shall be entitled
to-.retain all such monies paid by the Borrower to the Creditor. If, as set
forth above, the Creditor is obligated to return to the Borrower any monies so
paid by the Borrower, this Guaranty shall not be canceled (notwithstanding it
being marked "CANCELED" and returned to the Guarantor) and the Guarantor shall
continue to be liable to the Creditor for all such monies.
4. CONSENT TO CREDITOR'S ACTS. The Guarantor consents, without
affecting in any way the Guarantor's liability to the Creditor hereunder, that
the Creditor may, without notice to or consent of the Guarantor and upon such
terms as it may deem advisable and with or without consideration and after
notice of cancellation is received by the Creditor under paragraph 2 hereof:
(a) extend in whole or in part, by renewal or otherwise, and as often as the
Creditor may wish, the time of payment of any indebtedness owing by the
Borrower to the Creditor, or held by the Creditor as security for any such
obligation; (b) release, surrender, exchange, modify, impair, or extend the
period of duration, or the time for performance or payment, of any collateral
securing any obligation of the Borrower to the Creditor; (c) settle or
compromise any claim of the Creditor against the Borrower, or against any other
person, firm or corporation, whose obligation is held by the Creditor as
collateral security for any obligation of the Borrower to the Creditor; and (d)
release in whole or in part any person liable for the payment of any obligation
of the Borrower to the Creditor including, but not limited to, any person
liable as an endorser, guarantor or judgment debtor (-if the Creditor obtains a
judgment on any obligation of the Borrower) of said obligation and, in any
event, any such release shall not affect the liability of the Guarantor for the
entire amount of any and every obligation of the Borrower to the Creditor.
Further, the Creditor shall not be under any obligation whatsoever to obtain or
perfect or to maintain the perfection of any security interest or other lien on
property to secure indebtedness of the Borrower to the Creditor and the
Creditor shall have no obligation to, and shall not have any liability for
failing to obtain or perfect or to maintain the perfection of any security
interest or lien on property to secure indebtedness of the Borrower. Any
failure of the Creditor to obtain and perfect or to maintain the perfection of
any security interest or lien shall not affect in any way whatsoever the
obligation of the Guarantor to the Creditor under this Guaranty, The Guarantor
hereby ratifies and confirms any such extension, renewal, release, surrender,
exchange, modification, impairment, settlement, or compromise, and all such
actions shall be binding upon the Guarantor who hereby waives all defenses,
counterclaims or offsets which the Guarantor might have by reason thereof.
5. WAIVERS BY GUARANTOR. The Guarantor waives: (a) notice of
acceptance of this Guaranty by the Creditor; (b) notice of presentment, demand
for payment, notice of dishonor or protest of any of the Borrower's obligations
or the obligation of any person, firm, or corporation held by the Creditor as
collateral security for the Borrower's obligation; (c) notice of the failure of
any person, firm, or corporation to pay to the Creditor any indebtedness held
by the Creditor as collateral security for any obligation of the Borrower; (d)
failure of the Creditor to obtain and perfect or maintain the perfection or
priority of any security interest or lien on property to secure any
indebtedness of the Borrower; and (e) all defenses, off-sets and counterclaims
which the Guarantor may at any time have to any claim of the Creditor against
the Borrower.
6. REPRESENTATIONS BY GUARANTOR. The Guarantor represents and
warrants as follows:
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(a) The Guarantor has received good, valuable and
sufficient consideration for the making of this Guaranty,
(b) This Guaranty, when duly executed and
delivered hereunder, will constitute a legal, valid and
binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its respective terms.
(c) The Guarantor is not (i) a party to any
agreement, indenture, lease or instrument or subject to any
judgment, order, writ, injunction, decree, rule or regulation
materially and adversely affecting the Guarantor's business,
properties, assets, operations or conditions (financial or
otherwise) and (ii) in default in the performance, observance
or fulfillment of any of the material obligations, covenants
or conditions contained in any such agreement, indenture,
lease or instrument to which the Guarantor is a party.
(d) There are no actions, proceedings or
investigations, however described or denominated,
pending or, to the knowledge of the Guarantor, threatened
against the Guarantor, or affecting the Guarantor or any basis
therefor known to the Guarantor which, either in any case or
in the aggregate, might result in any material adverse change
in the financial condition, business, prospects, affairs or
operations of the Guarantor or any of the Guarantor's
properties or assets, or in any material impairment of the
right or ability of the Guarantor to carry on the Guarantor's
operations as now conducted or proposed to be conducted, or
any material liability on the part of the Guarantor, and none
which question the validity of this Guaranty or any action
taken or to be taken in connection with the transactions
contemplated hereby.
(e) The Guarantor is currently aware that the
loans are in default and that the Creditor is prepared to
reinstate the loans for a limited time frame PROVIDED, among
other conditions, the undersigned Guarantor execute and
deliver this Guaranty Agreement. The Guarantor has further
reviewed or has a right to review the various loan documents.
All of the foregoing representations and warranties of the Guarantor shall
survive the execution and delivery of this Guaranty and shall be and remain
true and correct in all respects throughout the term of this Guaranty.
7. SUBROGATION. Nothing herein contained is intended or shall be
construed to give to Guarantor any right of subrogation in or under any note,
security document or any other loan document evidencing in any way or relating
to any obligation of the Borrower to the Creditor which is or may be covered by
this Guaranty, any right to participate in any way therein, or in the right,
title and interest of the Creditor in and to any collateral covered by any loan
or security documents relating to any such obligations notwithstanding any
payments made by Guarantor under this Guaranty, all such rights of subrogation
and participation being hereby expressly waived and released.
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8. SUBORDINATION. The Guarantor covenants and agrees that the
Guarantor will not ask, demand, xxx for, take or receive from the Borrower, by
set-off or any other manner, the whole or any part of any monies, principal or
interest, now or hereafter owing by the Borrower to the Guarantor, nor any
security therefor. The Guarantor hereby transfers and assigns to the Creditor,
as collateral security for any and all of the obligations, all of the said
claims or demands of the Guarantor against the Borrower (and any security
therefor), with full right on the part of the Creditor in its own name or in
the name of the Guarantor, to collect and enforce said claims, by suit, proof
of debt in bankruptcy, or other liquidation proceedings or otherwise. Should
any payment, security or proceeds of security be received by the Guarantor for
or on account of any of said claims or demands prior to the full payment and
performance of the Obligations, the Guarantor will forthwith deliver same to
the Creditor, in precisely the form received (except for the Guarantor's
endorsement where necessary) for application on account of the obligations and,
until so delivered, the same shall be held in trust by the Guarantor as
property of the Creditor. In the event of the failure of the Guarantor to
endorse any instrument for the payment of money so received by the Guarantor,
payable to the Guarantor's order, the Creditor or any officer or employee of
the Creditor is hereby irrevocably constituted and appointed attorney in fact
for the Guarantor, with full power to make any such endorsement and with full
power of substitution.
9. RIGHT OF SET-OFF. The Guarantor hereby grants to the Creditor
a lien on, and a security interest in, the deposit balances, accounts, items,
certificates of deposit and monies of the Guarantor in the possession of or on
deposit with the Creditor to secure and as collateral for the payment and
performance of the obligations of the Guarantor hereunder. Upon an Event of
Default, the Creditor is hereby authorized at any time and from time to time,
to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness (including,
without limitation, accounts, items, certificates of deposit or monies of the
Guarantor) at any time owing by the Creditor to or for the credit or the
account of the Guarantor against any and all of the Obligations, irrespective
of whether or not the Creditor shall have made any demand under this Guaranty.
The Creditor agrees promptly to notify the Guarantor after any such set-off and
application made by the Creditor, provided that the failure to give such notice
shall not affect the validity of such set-off and application to other rights
and remedies (including, without limitation, other rights of set-off) which the
Creditor may have.
10. REPRESENTATIONS BY GUARANTOR. The Guarantor represents that, at
the time of the execution and delivery of this Guaranty, nothing exists to
impair the effectiveness of the liability of the Guarantor to the Creditor
hereunder, or the immediate taking effect of this Guaranty as the sole
agreement between the Guarantor and the Creditor with respect to guaranteeing
the Borrower's obligation to the Creditor.
11. REMEDIES OF CREDITOR. The Creditor may at its option proceed
in the first instance against the Guarantor to collect any obligation covered
by this Guaranty, without first proceeding against the Borrower for said
obligation, or any other person, firm or corporation liable for said
obligation, and without first resorting to any property at any time held by the
Creditor as collateral security for said obligation and without any marshaling
of assets whatsoever. The Guarantor hereby grants to the Creditor a lien on,
and a security interest in, the deposit balances, funds, accounts, items,
certificates of deposit and the moneys of the Guarantor in the possession of or
on deposit with the Creditor to secure and as collateral for the payment and
performance of this Guaranty. The Creditor may at any time and from time to
time, without demand or notice, appropriate and set off against such deposit
balances, funds, accounts, items, certificates of deposit
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and moneys and apply the same to the obligations of the Guarantor hereunder.
The Creditor shall further have any other rights provided by law or under any
other document, all of which rights are cumulative. THE GUARANTOR HEREBY
CONSENTS TO THE ATTACHMENT OR GARNISHMENT OF THE GUARANTOR'S EARNINGS.
12. CONSTRUCTION AND BENEFIT. This Guaranty is delivered and made
in, and shall be construed pursuant to and governed by, the laws of the State
of Florida, and is binding upon the Guarantor and his legal representatives and
successors, and shall inure to the benefit of the Creditor, its successors and
assigns.
13. MISCELLANEOUS. In the event it becomes necessary for the
Creditor to exercise its rights under this Guaranty, whether suit be brought or
not, the Guarantor shall be liable for all costs and attorneys, fees incurred
by the Creditor, including costs and attorneys, fees incurred by the Creditor
on appeal. In the further event the Creditor obtains a final judgment against
the Guarantor upon this Guaranty, the judgment shall bear interest not at the
judgment rate but at the highest rate permitted by applicable law from time to
time in effect at the time of said judgment. Further, the Guarantor agrees
that the proper venue for any action which may be brought under this Guaranty,
in addition to any other venue permitted by law, shall be in the county in
which is located the creditor's business office as designated above or the
office of an assignee of this Guaranty. The liability of the Guarantor
hereunder, if more than one shall be joint and several. This Guaranty may be
executed in two or more counterparts, each of which may be executed by one or
more of the parties hereto, but all of which, when taken together, shall
constitute but one agreement binding upon all of the parties hereto. Whenever
used herein, the singular number shall include the plural, the plural the
singular, and the use of any gender shall be applicable to all genders. If
more than one Guarantor executes this Guaranty, the term "GUARANTOR" includes
each of the guarantors as well as all of the, and their liability hereunder
shall be joint and several.
14. FINANCIAL STATEMENTS. At the request of the Creditor, the
Guarantor shall, from time to time, prepare and deliver to the Creditor a
complete and current financial statement of the Guarantor setting forth all the
assets and liabilities of the Guarantor (and to the extent any person other
than the Guarantor has any interest in said assets or any person other than the
Guarantor is jointly liable for any of said obligations, said matters shall be
set forth in their entirety in the financial statements) all signed by the
Guarantor under oath as being true and correct. To the extent any assets or
liabilities set forth on said financial statement are owned by the Guarantor
with his or her spouse or for which there is any such joint liability, all said
assets shall be so specified and set forth.
15. NOTICES. In regard to all notices to be given under this
Guaranty, all notices shall be in writing and shall be deemed to have been
given (i) in the case of hand delivery, when actually delivered to the other
party at the address set forth at the beginning of this Guaranty, (ii) in the
case of mailing, three (3) days after such notice has been deposited in the
United States Mails, postage prepaid, by certified or registered mail and sent
to the other party at the address set forth in the beginning of this Guaranty,
and (iii) in all other cases, when actually received by the other party.
Either party may change the address to which said notices are to be given by
the giving of notice of such to the other party as set forth in this paragraph.
16. WAIVER OF JURY TRIAL. THE GUARANTOR WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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17. COMPLETE AGREEMENT. The whole of this Guaranty is herein set
forth and there is no verbal or other written agreement, and no understanding
or custom affecting the terms hereof. This Guaranty can be modified only by a
written instrument signed by the party to be charged therewith.
IN WITNESS WHEREOF, the Guarantor has signed this Guaranty Agreement
as of the date set forth above.
SIGNATURES ON FOLLOWING PAGE.
Signed, sealed and delivered
in the presence of:
/s/ /s/ Xxxxxx X. Xxxxxx, III
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(Signature of Witness) Xxxxxx X. Xxxxxx, III,
individually
/s/
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(Print Name of Witness)
/s/ /s/ Xxxxxx Xxx Xxxxxx
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(Signature of Witness) Xxxxxx Xxx Xxxxxx, his wife,
individually
/s/
----------------------------
(Print Name of Witness)
As to the "Guarantor"
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 26th day of
February, 1997, by Xxxxxx X. Xxxxxx, III and Xxxxxx Xxx Xxxxxx, his wife.
/s/
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Signature of Notary Public - State of Florida
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Print, type or stamp commissioned name of Notary
Personally known OR
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Produced Identification .
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Type of Identification Produced:
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