Exhibit 10.27
2/23/2000
GUARANTY AGREEMENT
OF
APCOA/STANDARD PARKING,
INC.
THIS GUARANTY AGREEMENT
(“the Guaranty”) is made this
day of March, 2000, by
APCOA/Standard Parking Inc. , a Delaware Corporation, having
its headquarters at Chicago, Illinois (the “Guarantor”)
to and for the benefit of the State of Connecticut, Department
of Transportation (“the State”) having its
headquarters at Newington, Connecticut.
WITNESSETH:
WHEREAS, APCOA Bradley Parking
Company, LLC (“ABPC”) entered in a Construction,
Financing and Operating Special Facility Lease Agreement with the
State of even date herewith (the “Lease”), a copy of
which is attached hereto as Exhibit A ; and
WHEREAS, pursuant to the Lease, ABPC
has entered into a License Agreement with the Guarantor, which is
attached hereto as Exhibit B, through which the
Guarantor is responsible for all non-construction obligations of
ABPC under the Lease during the construction phase of the Garage,
as each is defined in the Lease and License Agreement;
and
WHEREAS, pursuant to the Lease, ABPC
has entered into an Assignment Agreement with Bradley Airport
Parking, Limited Partnership (“BAP”), of which the
Guarantor is the sole general partner, which is attached hereto as
Exhibit C , through which BAP is responsible for all
non-construction obligations of ABPC during the term of the
Assignment Agreement, as each is defined in the Lease and
Assignment Agreement; and
WHEREAS, to induce the State to
enter into the Lease, the Guarantor has agreed with the State to
guarantee the payment of all Guaranteed Payments, which are the sum
of the Garage Guaranteed Payments and the Surface Parking
Guaranteed Payments as defined and set forth in Sections
6(b)(1) and 6(b)(2) of the Lease.
NOW, THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Guarantor
hereby agrees as follows:
1. (a) The Guarantor hereby
irrevocably, unconditionally and absolutely guarantees the due and
punctual payment to the Trustee, as defined in the Lease, or
assignee on behalf of the State, of funds sufficient to make any of
the Guaranteed Payments for which the Trustee has insufficient
funds on deposit in the appropriate accounts to make the required
payment on the scheduled payment date, after application thereto of
amounts available therefor from all prior sources as provided in
Section 6 of the Lease and upon notification by the Trustee as
set forth below. The Guarantor will pay any such amounts and
perform such obligations promptly upon demand as set forth herein,
such amounts constituting the direct and primary obligation of the
Guarantor. Failure to make any such payments when due constitutes a
default under this Guaranty. Should such default continue after the
opening of business on the date the Trustee is required to make the
deposits pursuant to the Lease such default shall also constitute a
default under the Lease and, the State shall have every remedy
available to it under the Lease.
(b) The Guarantor hereby
acknowledges that in the event the Trustee notifies the Guarantor
by telephone and telecopier transmission, promptly confirmed in
writing by overnight express, of the amount of shortfall or
deficiency in any amounts necessary to make a Guaranteed Payment,
after application thereto of amounts available therefor from all
prior sources as provided in Section 6 of the Lease (each such
deficiency or shortfall amount to be known as a “Guarantor
Payment”), the Guarantor shall wire transfer the amount of
such Guarantor Payment to the Trustee within three business days of
such telephonic and telecopier notice. The Guarantor shall be
entitled to a reimbursement of such payment, with interest and
premium thereon, as set forth and as limited in
Section 6(b)(4) of the Lease. The Trustee shall give
telephonic notice of the obligation of the Guarantor to make a
Guarantor Payment to the Office of the General Counsel, at
312-274-2030 and, telecopier notice to the Office of the General
Counsel, at 312-640-6162, and overnight express notice to the
Office of the General Counsel, at APCOA/Standard
Parking, Inc., 900 North Michigan Avenue, Suite 1600,
Chicago, IL, 60611, or such other numbers and addresses as the
Guarantor may hereafter supply to the State in writing. The
Guarantor shall promptly notify the State and the Trustee of any
change of the person to be notified, along with any change of the
proper telephone number, telecopier number, and overnight express
address. The failure of the Guarantor to provide proper notice of
the such changes, or the failure of any telecopier transmission,
shall not excuse the Guarantor from its obligations to make timely
payment when due to the Trustee.
Notwithstanding anything herein to
the contrary, the Guarantor shall not be obligated to make a
Guarantor Payment or any portion thereof to the extent such
Guarantor Payment or portion thereof is solely caused by the
failure of the State to perform its obligations under the first
sentence only of Section 7(a)(4)(b) of the
Lease.
(c) Under no circumstances and
in no event shall payment of any Guarantor Payments be construed as
or deemed to be a construction obligation of ABPC or the
Guarantor.
2
2. Except as provided in
paragraph 1(b) above, the Guarantor waives diligence,
presentment, protest, notice of dishonor, demand for payment,
extension of time for payment, notice of acceptance of this
Guaranty, non-payment at maturity and indulgence and notices of
every kind, and consents to any and all forbearances and extensions
of the time of payment of the Guaranteed Payments and to any and
all changes in the terms, covenants and conditions thereof made or
granted by written amendment to the Lease or to this Guaranty; it
being the intention hereof that the Guarantor shall remain liable
absolutely and unconditionally as set forth herein until the end of
the full Lease Term, unless such term shall be terminated earlier
as set forth within the Lease, except that a default by ABPC under
the Lease or the bankruptcy or insolvency of ABPC shall not operate
to terminate the obligations of the Guarantor hereunder. The
Guarantor also waives all rights waived in the Lease by ABPC.
Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of Guarantor hereunder shall in no way
be terminated, affected, diminished, modified or impaired by reason
of the assertion of or the failure to assert by the State or the
Trustee against ABPC or its successors or assigns, any of the
rights or remedies reserved to the State or the Trustee pursuant to
the provisions of the Lease.
3. The Guarantor agrees that
the obligations of the Guarantor hereunder shall not be affected by
any action taken by the State or the Trustee under the Lease in the
exercise of any right or remedy therein conferred, or by any
invalidity or unenforceability thereof, or by any defense or
counterclaim that may be available to ABPC against the State or the
Trustee, except a defense or counterclaim specifying the failure of
the State to perform its obligations under the first sentence only
of Section 7(a)(4)(b) of the Lease, it being the purpose
and intent of the Guarantor that this Guaranty and the obligations
of the Guarantor hereunder shall be absolute and unconditional, as
set forth herein. The Guarantor agrees that the rights of the State
hereunder may be exercised by the Trustee or other assignee of the
State.
4. The Guarantor agrees that
this Guaranty may be enforced by the State, or by the Trustee or
other assignee of the State, without first resorting to or
exhausting any other security, collateral or guaranty except the
prior sources for Guaranteed Payments as set forth in
Section 6 of the Lease, through court proceedings or
otherwise; provided, however, that nothing herein contained shall
prevent the State from suing on the Lease with or without making
the Guarantor a party to the suit or from exercising other rights
thereunder, and if such suit or other remedy is availed of, only
the net proceeds therefrom, after deduction of all charges and
expenses of every kind and nature whatsoever incurred in connection
with the enforcement of the Lease and any other documents securing
the Lease, shall be applied, and the State shall not be required to
institute or prosecute proceedings to recover any deficiency as a
condition of payment hereunder or enforcement hereof.
5. The Guarantor represents and
warrants that, as of the date hereof:
3
(a) It has furnished to the
State true and correct copies of the most recently available
financial statements of the Guarantor. Said statements fairly
present the financial condition of the Guarantor as of the date
indicated and the result of operations during the period indicated.
No material adverse change has occurred in the financial condition
of the Guarantor since the date of such statements.
(b) It is a duly organized and
existing Delaware corporation, is in good standing in Delaware and
is duly licensed or qualified and in good standing in Connecticut
and in each other material jurisdiction in which it owns property
or in which the nature of the business conducted by it requires
such licensing or qualification and is duly authorized to make and
perform this Guaranty.
(c) The Guarantor has duly
authorized the execution and delivery of this Guaranty and this
Guaranty constitutes the legal, valid and binding
obligation
