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EXHIBIT 10.24
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GUARANTY AGREEMENT
from
DISCOUNT AUTO PARTS, INC.
Dated as of May 30, 2000
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TABLE OF CONTENTS
Page
SECTION 1. Guaranty...........................................................1
SECTION 2. Bankruptcy.........................................................2
SECTION 3. Continuing Guaranty................................................2
SECTION 4. Reinstatement......................................................3
SECTION 5. Certain Actions....................................................3
SECTION 6. Application........................................................3
SECTION 7. Waiver.............................................................3
SECTION 8. Assignment.........................................................4
SECTION 9. Miscellaneous......................................................4
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GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of May 30, 2000 (as amended or
otherwise modified from time to time, this "Guaranty"), is made by DISCOUNT AUTO
PARTS, INC., a Florida corporation ("DAP" or "Guarantor").
W I T N E S S E T H:
WHEREAS, Guarantor, certain Subsidiaries of DAP that are or may become
party thereto, as Lessees, Atlantic Financial Group, Ltd., as Lessor, the
financial institutions party thereto, as Lenders, and SunTrust Bank, as Agent,
have entered into that certain Master Agreement, dated as of May 30, 2000 (as it
may be modified, amended or restated from time to time as and to the extent
permitted thereby, the "Master Agreement"; and, unless otherwise defined herein,
terms which are defined or defined by reference in the Master Agreement
(including Appendix A thereto) shall have the same meanings when used herein as
such terms have therein); and
WHEREAS, it is a condition precedent to the Funding Parties
consummating the transactions to be consummated on the Initial Closing Date that
the Guarantor execute and deliver this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor that the
transactions contemplated by the Master Agreement be consummated on the Initial
Closing Date; and
WHEREAS, this Guaranty, and the execution, delivery and performance
hereof, have been duly authorized by all necessary corporate action of
Guarantor; and
WHEREAS, this Guaranty is offered by the Guarantor as an inducement to
the Funding Parties to consummate the transactions contemplated in the Master
Agreement, which transactions, if consummated, will be of benefit to Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantor, the Guarantor hereby agrees as follows:
SECTION 1. Guaranty. Guarantor hereby unconditionally guarantees to the
Agent and the Funding Parties the full and prompt payment when due, whether by
acceleration or otherwise, and at all times thereafter, and the full and prompt
performance, of all of the Liabilities (as hereinafter defined), including rent,
interest and earnings on any such Liabilities whether accruing before or after
any bankruptcy or insolvency case or proceeding involving Guarantor, or any
other Person and, if rent, interest or earnings on any portion of such
obligations ceases to
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accrue by operation of law by reason of the commencement of such case or
proceeding, including such rent, interest and earnings as would have accrued on
any such portion of such obligations if such case or proceeding had not
commenced, and further agrees to pay all reasonable expenses (including
reasonable attorneys' fees and legal expenses) actually paid or incurred by each
of the Funding Parties in endeavoring to collect the Liabilities, or any part
thereof, and in enforcing this Guaranty. The term "Liabilities", as used herein,
shall mean all of the following, in each case howsoever created, arising or
evidenced, whether direct or indirect, joint or several, absolute or contingent,
or now or hereafter existing, or due or to become due: (i) all amounts payable
by the Lessees or the Construction Agent to the Agent and the Funding Parties
under the Lease (including, without limitation, Basic Rent, Supplemental Rent
and the Recourse Deficiency Amount), the Master Agreement, the Construction
Agency Agreement or any other Operative Document, and (ii) all principal of the
Notes and interest accrued thereon, and all additional amounts and other sums at
any time due and owing, and required to be paid, to the Funding Parties under
the terms of the Master Agreement, the Loan Agreement, the Construction Agency
Agreement, the Assignments of Lease and Rents, the Mortgages, the Notes or any
other Operative Document; provided, however, that the Guarantor will not be
obligated to pay to the Agent and Funding Parties under this Guaranty any
amounts greater than the Lessees and the Construction Agent would have had to
pay to the Agent and the Funding Parties under the Lease, the Master Agreement,
the Construction Agency Agreement and the other Operative Documents assuming
that such documents were enforced in accordance with their terms (and without
giving effect to any discharge or limitation thereon resulting or arising by
reason of the bankruptcy or insolvency of a Lessee), plus all actual and
reasonable costs of enforcing this Guaranty.
By way of extension but not in limitation of any of its other
obligations hereunder, Guarantor stipulates and agrees that if any foreclosure
proceedings are commenced with respect to any Leased Property and result in the
entering of a foreclosure judgment, any such foreclosure judgment, to the extent
related to the Liabilities and payable to any of the Funding Parties, shall be
treated as part of the Liabilities, and Guarantor unconditionally guarantees the
full and prompt payment of such judgment.
SECTION 2. Bankruptcy. Guarantor agrees that, in the event any
bankruptcy, reorganization or insolvency proceeding shall be instituted by or
against Guarantor and, if instituted against Guarantor, shall not be dismissed
or stayed for a period of ninety (90) days, and if such event shall occur at a
time when any of the Liabilities may not then be due and payable, Guarantor will
pay to the Funding Parties forthwith the full amount which would be payable
hereunder by Guarantor if all Liabilities were then due and payable.
SECTION 3. Continuing Guaranty. THIS GUARANTY SHALL IN ALL RESPECTS BE
A CONTINUING, ABSOLUTE AND UNCONDITIONAL GUARANTY OF PROMPT AND COMPLETE PAYMENT
AND PERFORMANCE (AND NOT MERELY OF COLLECTION), AND SHALL REMAIN IN FULL FORCE
AND EFFECT (NOTWITHSTANDING, WITHOUT LIMITATION, THE DISSOLUTION OF
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GUARANTOR) UNTIL THE TERMINATION OF THE COMMITMENTS AND THE FULL AND FINAL
PAYMENT OF ALL OF THE LIABILITIES.
SECTION 4. Reinstatement. Guarantor further agrees that, if at any time
all or any part of any payment theretofore applied to any of the Liabilities is
or must be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Guarantor or any
Lessee), such Liabilities shall, for the purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application had not been made.
SECTION 5. Certain Actions. The Funding Parties may, from time to time
at their discretion and without notice to Guarantor (but subject to the terms of
the other Operative Documents), take any or all of the following actions without
impairing Guarantor's obligations hereunder: (a) retain or obtain (i) a security
interest in any Lessee's interests in the Lease or the Leased Property and (ii)
a lien or a security interest hereafter granted by any Person upon or in any
property, in each case to secure any of the Liabilities or any obligation
hereunder; (b) retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the Guarantors, with respect to any of the
Liabilities; (c) extend or renew for one or more periods (regardless of whether
longer than the original period), or release or compromise any obligation of
Guarantor hereunder or any obligation of any nature of any other obligor
(including, without limitation, the Lessor and the Lessees) with respect to any
of the Liabilities; (d) release or fail to perfect its Lien upon or security
interest in, or impair, surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Liabilities or
any obligation hereunder, or extend or renew for one or more periods (regardless
of whether longer than the original period) or release or compromise any
obligations of any nature of any obligor with respect to any such property; and
(e) resort to Guarantor for payment of any of the Liabilities, regardless of
whether the Agent or any other Person shall have resorted to any property
securing any of the Liabilities or any obligation hereunder or shall have
proceeded against any Lessee or any other obligor primarily or secondarily
obligated with respect to any of the Liabilities (all of the actions referred to
in this clause (e) being hereby expressly waived by Guarantor).
SECTION 6. Application. Any amounts received by any Funding Party from
whatever source on account of the Liabilities shall be applied by it toward the
payment of such of the Liabilities, and in such order of application, as is set
forth in the Operative Documents.
SECTION 7. Waiver. Guarantor hereby expressly waives: (a) notice of the
acceptance of this Guaranty; (b) notice of the existence or creation or
non-payment of all or any of the Liabilities; (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever; and (d) all diligence in
collection of or realization upon the Liabilities or any thereof, any obligation
hereunder, or any security for or guaranty of any of the foregoing.
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SECTION 8. Assignment. Subject to Section 6 of the Master Agreement,
each Funding Party may, from time to time, whether before or after any
discontinuance of this Guaranty, at its sole discretion and without notice to
Guarantor, assign or transfer any or all of its portion of the Liabilities or
any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Guaranty, and each and every such
immediate and successive assignee or transferee of any of the Liabilities or of
any interest therein shall, to the extent of such assignee's or transferee's
interest in the Liabilities, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were such Funding Party.
SECTION 9. Miscellaneous. No delay in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding upon any Funding Party except
as expressly set forth in a writing duly signed and delivered on its behalf. No
action permitted hereunder shall in any way affect or impair any Funding Party's
rights or Guarantor's obligations under this Guaranty. For the purposes of this
Guaranty, Liabilities shall include all of the obligations described in the
definition thereof, notwithstanding any right or power of any Lessee or the
Lessor or anyone else to assert any claim or defense (other than final payment
or full performance) as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the obligations
of Guarantor hereunder. Guarantor hereby acknowledges that there are no
conditions to the effectiveness of this Guaranty.
This Guaranty shall be binding upon Guarantor and upon Guarantor's
successors and permitted assigns; and all references herein to Guarantor shall
be deemed to include any successor or successors thereof, whether immediate or
remote, to such Person; provided that Guarantor shall not assign its obligations
hereunder without the prior written consent of the Funding Parties.
Wherever possible each provision of this Guaranty shall be interpreted
in such manner as to be effective and valid under Applicable Law, but if any
provision of this Guaranty shall be prohibited by or invalid thereunder, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
GUARANTOR: (a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS GUARANTY, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE COURTS OF THE STATE OF FLORIDA, THE COURTS OF THE UNITED STATES OF AMERICA
FOR THE MIDDLE DISTRICT OF FLORIDA, AND APPELLATE COURTS FROM ANY THEREOF; (b)
CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE BROUGHT TO SUCH COURTS, AND
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME; AND
(c) AGREES
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THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE FUNDING PARTIES TO XXX
IN ANY OTHER JURISDICTION.
All notices, demands, declarations, consents, directions, approvals,
instructions, requests and other communications required or permitted by this
Guaranty shall be in writing and shall be deemed to have been duly given when
addressed to the appropriate Person and delivered in the manner specified in
Section 8.2 of the Master Agreement.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
DISCOUNT AUTO PARTS, INC.
By:__________________________________
Name Printed:____________________
Title:___________________________
GUARANTY
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