Contract
Exhibit
10.31
GUARANTEE
AGREEMENT dated as of December 4, 2007, between ADVANCE AUTO PARTS, INC., a
Delaware corporation (“Holdings” and the “Guarantor”), and
JPMORGAN CHASE BANK, N.A., a New York banking corporation (“JPMCB”), as
administrative agent (in such capacity, the “Administration Agent”) for
the Lenders (as defined in the Credit Agreement referred to below).
Reference
is made to the Term Loan Credit Agreement dated as of December 4, 2007 (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Holdings, Advance Stores Company, Incorporated, a
Virginia corporation (the “Borrower”), the lenders from time to time
party thereto (the “Lenders”) and JPMCB, as administrative agent (in such
capacity, the “Administrative Agent”) for the
Lenders. Capitalized terms used herein and not defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The
Lenders have agreed to make Loans to the Borrower pursuant to, and upon the
terms and subject to the conditions specified in, the Credit
Agreement. The Borrower has elected that the Guarantor guarantee the
Obligations (as defined below) by entering into this Guarantee
Agreement. Holdings acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders. The obligations
of the Lenders to make Loans are conditioned on, among other things, the
execution and delivery by the Guarantor of a Guarantee Agreement in the form
hereof. As consideration therefor and in order to induce the Lenders
to make Loans, the Guarantor is willing to execute this Guarantee
Agreement.
Accordingly,
the parties hereto agree as follows:
SECTION
1. Guarantee. The
Guarantor unconditionally guarantees, as a primary obligor and not merely as
a
surety, (a) the due and punctual payment of (i) the principal of and premium,
if
any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless
of
whether allowed or allowable in such proceeding) on the Loans, when and as
due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise and (ii) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), of the Loan
Parties to the Lenders under the Credit Agreement and the other Loan Documents
and (b) the due and punctual performance of all covenants, agreements,
obligations and liabilities of the Borrower under or pursuant to the Credit
Agreement and the other Loan Documents (all the monetary obligations described
in the preceding clauses (a) and (b) being collectively called the
“Obligations”). The Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice
to
or further assent from it, and that the security interest granted hereunder
and
the obligations of the Guarantor will survive any extension or renewal of any
Obligation.
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SECTION
2. Obligations
Not Waived. To the fullest extent permitted by applicable law,
the Guarantor waives presentment to, demand of payment from and protest to
the
Borrower of any of the Obligations, and also waives notice of acceptance of
its
guarantee and notice of protest for nonpayment. To the fullest extent
permitted by applicable law, the obligations of the Guarantor hereunder shall
not be affected by (a) the failure of the Administrative Agent or any other
Lender to assert any claim or demand or to enforce or exercise any right or
remedy against the Borrower or the Guarantor under the provisions of the Credit
Agreement, any other Loan Document or otherwise or (b) any rescission,
waiver, amendment or modification of, or any release from, any of the terms
or
provisions of this Guarantee Agreement, any other Loan Document, any Guarantee
or any other agreement.
SECTION
3. Guarantee
of Payment. The Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by the Administrative Agent or
any
other Lender to any of the security held for payment of the Obligations or
to
any balance of any deposit account or credit on the books of the Administrative
Agent or any other Lender in favor of the Borrower or any other
Person.
SECTION
4. No
Discharge or Diminishment of Guarantee. The obligations of the
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment
in
full in cash of the Obligations and inchoate indemnification and reimbursement
obligations), including any claim of waiver, release, surrender, alteration
or
compromise of any of the Obligations, and shall not be subject to any defense
or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantor hereunder shall not be discharged or impaired
or
otherwise affected by the failure of the Administrative Agent or any other
Lender to assert any claim or demand or to enforce any remedy under the Credit
Agreement, any other Loan Document or any other agreement, by any waiver or
modification of any provision of any thereof, by any default, failure or delay,
wilful or otherwise, in the performance of the Obligations, or by any other
act
or omission that may or might in any manner or to any extent vary the risk
of
the Guarantor or that would otherwise operate as a discharge of the Guarantor
as
a matter of law or equity (other than the indefeasible payment in full in cash
of all the Obligations and inchoate indemnification and reimbursement
obligations).
SECTION
5. Defenses
of Borrower Waived. To the fullest extent permitted by applicable
law, the Guarantor waives any defense based on or arising out of any defense
of
the Borrower or the unenforceability of the Obligations or any part thereof
from
any cause, or the cessation from any cause of the liability of the Borrower,
other than the final and indefeasible payment in full in cash of the Obligations
and inchoate indemnification and reimbursement obligations. The
Administrative Agent and the other Lenders may, at their election, compromise
or
adjust any part of the Obligations, make any other accommodation with the
Borrower or any other guarantor or exercise any other right or remedy available
to them against the Borrower or any other guarantor, without affecting or
impairing in any way the liability of the Guarantor hereunder except to the
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extent
the Obligations have been fully, finally and indefeasibly paid in
cash. Pursuant to applicable law, the Guarantor waives any defense
arising out of any such election even though such election operates, pursuant
to
applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of the Guarantor against the
Borrower.
SECTION
6. Agreement
to Pay; Subordination. In furtherance of the foregoing and not in
limitation of any other right that the Administrative Agent or any other Lender
has at law or in equity against the Guarantor by virtue hereof, upon the failure
of the Borrower or any other Loan Party to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to or as directed by the Administrative Agent in
cash
the amount of such unpaid Obligations. Upon payment by the Guarantor
of any sums to or as directed by the Administrative Agent as provided above,
all
rights of the Guarantor against the Borrower arising as a result thereof by
way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the
prior
indefeasible payment in full in cash of all the Obligations. In
addition, any indebtedness of any Loan Party now or hereafter owed to the
Guarantor is hereby subordinated in right of payment to the prior payment in
full of the Obligations. If, at any time that a Default has occurred
and is continuing, any amount shall be paid to the Guarantor on account of
(a) such subrogation, contribution, reimbursement, indemnity or similar
right or (b) any such indebtedness of any Loan Party, such amount shall be
held in trust for the benefit of the Lenders and shall forthwith be paid to
the
Administrative Agent to be credited against the payment of the Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Documents.
SECTION
7. Information. The
Guarantor assumes all responsibility for being and keeping itself informed
of
the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the nature, scope
and
extent of the risks that the Guarantor assumes and incurs hereunder, and agrees
that none of the Administrative Agent or the other Lenders will have any duty
to
advise the Guarantor of information known to it or any of them regarding such
circumstances or risks.
SECTION
8. Representations
and Warranties. The Guarantor represents and warrants that all
representations and warranties relating to it contained in the Credit Agreement
are true and correct.
SECTION
9. Termination. The
guarantee made hereunder (a) shall terminate when all the Obligations (other
than inchoate indemnification and reimbursement obligations) have been
indefeasibly paid in full and the Lenders have no further commitment to lend
under the Credit Agreement and (b) shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof,
of
any Obligation is rescinded or must otherwise be restored by any Lender or
the
Guarantor upon the bankruptcy or reorganization of the Borrower, the Guarantor
or otherwise.
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SECTION
10. Binding
Effect; Assignments. Whenever in this Guarantee Agreement any of
the parties hereto is referred to, such reference shall be deemed to include
the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Guarantor that are contained in this Guarantee Agreement
shall bind and inure to the benefit of each party hereto and their respective
successors and assigns. This Guarantee Agreement shall become
effective as to the Guarantor when a counterpart hereof executed on behalf
of
the Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon the Guarantor and the Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of the Guarantor, the Administrative Agent and the other Lenders, and
their respective successors and assigns, except that the Guarantor shall not
have the right to assign its rights or obligations hereunder or any interest
herein (and any such attempted assignment shall be void).
SECTION
11. Waivers;
Amendment. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate
as
a waiver thereof, nor shall any single or partial exercise of any such right
or
power, or any abandonment or discontinuance of steps to enforce such a right
or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative
Agent hereunder and of the other Lenders under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Guarantee
Agreement or consent to any departure by the Guarantor therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on
the Guarantor in any case shall entitle the Guarantor to any other or further
notice or demand in similar or other circumstances.
(b) Neither
this Guarantee Agreement nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into between the
Guarantor and the Administrative Agent, subject to any consent required in
accordance with Section 9.02 of the Credit Agreement.
SECTION
12. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
13. Notices. All
communications and notices hereunder shall be in writing and given as provided
in Section 9.01 of the Credit Agreement.
SECTION
14. Survival
of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantor herein and
in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Guarantee Agreement or any other Loan Document shall be
considered to have been relied upon by the Administrative Agent and the other
Lenders and shall survive the making by the Lenders of the Loans regardless
of
any investigation made by the Lenders
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or
on
their behalf, and shall continue in full force and effect until all the
Obligations have been indefeasibly paid in full and the Lenders have no further
commitment to lend under the Credit Agreement.
(b) In
the
event any one or more of the provisions contained in this Guarantee Agreement
or
in any other Loan Document should be held invalid, illegal or unenforceable
in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
15. Counterparts. This
Guarantee Agreement may be executed in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute
a
single contract, and shall become effective as provided in
Section 10. Delivery of an executed signature page to this
Guarantee Agreement by electronic transmission shall be as effective as delivery
of a manually executed counterpart of this Guarantee Agreement.
SECTION
16. Rules
of Interpretation. The rules of interpretation specified in
Section 1.03 of the Credit Agreement shall be applicable to this Guarantee
Agreement.
SECTION
17. Jurisdiction;
Consent to Service of Process. (a) The Guarantor
hereby irrevocably and unconditionally submits, for itself and its property,
to
the nonexclusive jurisdiction of any New York State court or Federal court
of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this
Guarantee Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Guarantee
Agreement shall affect any right that the Administrative Agent or any other
Lender may otherwise have to bring any action or proceeding relating to this
Guarantee Agreement or the other Loan Documents against the Guarantor or its
properties in the courts of any jurisdiction.
(b) The
Guarantor hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
relating to this Guarantee Agreement or the other Loan Documents in any New
York
State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest
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extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each
party to this Guarantee Agreement irrevocably consents to service of process
in
the manner provided for notices in Section 13. Nothing in this
Guarantee Agreement will affect the right of any party to this Guarantee
Agreement to serve process in any other manner permitted by law.
SECTION
18. Waiver
of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,
AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
18.
SECTION
19. Right
of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, 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 at any time owing by such Lender to or for the
credit or the account of the Guarantor against any or all the obligations of
the
Guarantor now or hereafter existing under this Guarantee Agreement and the
other
Loan Documents held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Guarantee Agreement or any other Loan
Document and although such obligations may be unmatured. The rights
of each Lender under this Section 19 are in addition to other rights and
remedies (including other rights of setoff) which such Lender may
have.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Guarantee Agreement
as of the day and year first above written.
|
ADVANCE
AUTO PARTS, INC.,
as
Guarantor,
|
|||
| By: | |||
| /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx | |||
|
Title:
Executive Vice President, Chief Financial
Officer
|
|||
|
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent,
|
|||
| By: | |||
| /s/ Xxxxx Xxxxxxx | |||
| Name: Xxxxx Xxxxxxx | |||
| Title: Managing Director | |||
