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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 Agen
t”) 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 Guaranto
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