AMENDED AND RESTATED GUARANTY
This Guaranty is executed and delivered on March 31, 1997, by
undersigned ("Guarantor") to Comerica Bank, a Michigan banking
corporation of Detroit, Michigan, in its capacity as agent
("Agent") for the Banks under that certain Sixth Amended and
Restated Credit Agreement of even date herewith between Republic
Automotive Parts, Inc. ("Borrower"), Agent and the Banks ("Loan
Agreement").
WHEREAS, Borrower desires to enter into the Agreement and
become obligated to Agent and the Banks thereunder, for the payment
of one or more Liabilities, as defined below, from time to time,
though it may not be continuously, and/or to obtain letters of
credit and/or other credit accommodations from Agent and the Banks
from time to time ("Borrower" wherever used herein shall include
any partnership, firm, corporation, or other organization or entity
succeeding in whole or substantial part whether immediately or
otherwise to the business and/or property with or without the
liabilities of the above named Borrower); and
WHEREAS, Guarantor desires to see the success of, and/or
receives direct and/or indirect benefits from the Borrower as
subsidiary of Borrower and otherwise.
NOW, THEREFORE, for valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and to induce Agent and
the Banks to enter into banking transactions with or otherwise make
credit accommodations in favor of the Borrower the GUARANTOR HEREBY
UNCONDITIONALLY AND ABSOLUTELY GUARANTEES TO AGENT AND THE BANKS
the prompt payment when due, whether at maturity or on any
accelerated or extended payment date or otherwise, of any and all
Liabilities, until such Liabilities are fully paid and satisfied as
to principal, interest and other sums due and payable thereunder.
"Liabilities" shall mean all indebtedness for borrowed money and
all other monetary obligations of Borrower to Agent or the Banks
incurred under or in connection with the Loan Agreement or the
Documents (as defined therein), present or future, direct or
indirect, absolute or contingent, joint or several, now or
hereafter existing or arising, due or to become due, howsoever
arising or evidenced, including, but not limited to, any borrowings
of Borrower evidenced by Borrower's promissory notes, obligations
of Borrower under any reimbursement or letter of credit agreements,
and obligations of Borrower on any note, draft or other instrument,
whether or not negotiable in form, upon which Borrower is liable,
in each case incurred or issued under or in connection with the
Loan Agreement, whether or not such indebtedness or obligation is
known to Guarantor now or at the time such indebtedness or
obligation is incurred, and all amendments, renewals or extensions,
in whole or in part, of any such indebtedness or obligations.
Guarantor shall also pay, on demand, any and all expenses
(including without limitation reasonable attorneys' fees) which may
be incurred or paid by Agent or the Banks in preserving, protecting
or enforcing any of its rights or remedies in connection with, or
collecting against Guarantor under, this Guaranty ("Collection
Costs").
Guarantor further agrees as follows:
1. Absolute and Unconditional Obligation. This Guaranty is
a guaranty of payment and not of collection. The obligation of the
Guarantor under this Guaranty (the "Obligation") shall be absolute
and primary, and complete and binding as to each Guarantor and
subject to no condition whatever, precedent or otherwise,
irrespective of the validity, regularity or enforceability of any
of the Liabilities, the absence of any action to enforce the same,
any waiver or consent with respect thereto, or any failure or delay
in the enforcement thereof. Notice of acceptance hereof or action
in reliance hereon shall not be required. Neither Agent nor the
Banks shall be under any obligation to give Guarantor notice of
Borrower's incurring future Liabilities or amendments, renewals or
extensions of any Liabilities, or any other fact or matter
pertaining to Borrower. Nor shall the Obligation be affected by
the bankruptcy, insolvency, incompetence or death, or any change in
ownership or control, of the Borrower, or of any other party. The
Obligation shall be independent of and in addition to any similar
obligation or other liability of the Guarantor to Agent or any or
all of the Banks.
2. Waiver. Guarantor waives presentment, demand, protest,
notice of protest or dishonor, diligence in collecting the
Liabilities, any requirement first to proceed against the Borrower
or against any guarantor or other party, or to exhaust any security
for the performance of any of the Liabilities. Any collateral or
other security of Borrower or any other party or any guaranty or
other obligation of any party which Agent or the Banks now or
subsequently hold may be released or otherwise dealt with by Agent
and the Banks in all respects as though this Guaranty were not in
existence and the Obligation shall be in no way affected thereby,
Guarantor hereby waiving and foregoing all rights in respect of any
action, or failure to act, regarding such collateral or other
security.
3. Continuing Obligation. The Obligation shall be
continuing and, irrespective of any statute of limitations
otherwise applicable, shall cover all Liabilities incurred by
Borrower before any revocation of this Guaranty becomes effective
as provided below (and shall also include Liabilities of the
Borrower incurred after such revocation pursuant to any agreement
to lend, whether optional or obligatory, existing at the date of
revocation), and as to any Liabilities so incurred, shall continue
until the same are fully paid and satisfied. The bankruptcy or
insolvency of any Guarantor or revocation by any Guarantor shall
not affect the Obligation of any others, but such others shall
continue to be liable for the Liabilities (including future
Liabilities) as though such bankrupt, insolvent or revoking party
had not been a party hereto. Agent and the Banks may (but shall
not be obligated to do so), file a claim under this Guaranty in any
such bankruptcy or insolvency proceeding, provided that the
continuance of the Obligation in accordance with this Guaranty
shall not be affected thereby.
4. Subrogation. Guarantor expressly postpones any claim for
reimbursement, contribution, indemnity, or subrogation which the
Guarantor may have against the Borrower by reason of payment by the
Guarantor of any of the Liabilities until such time as the
Liabilities have been finally and irrevocably paid in full. In the
event of the liquidation, reorganization or bankruptcy of Borrower
(whether voluntary or involuntary) or in the event that Borrower
shall make an arrangement or composition with its creditors or
become subject to any receivership or other insolvency proceedings,
Agent and the Banks shall be entitled to receive all dividends or
other payments with respect to the Liabilities until its claims
have been paid in full, and Guarantor shall continue to be liable
to Agent and the Banks to the extent provided herein for any
balance of the Liabilities which may be owing. If any amount shall
be paid to or received by Guarantor on account of any subrogation
rights arising at any time when all Liabilities shall not have been
paid and discharged in full, such amount shall be held in trust by
Guarantor for the benefit of Agent and the Banks and shall
forthwith be paid to Agent to be credited and applied against the
Obligation.
5. Continued Effectiveness or Reinstatement. Notwithstanding
any prior revocation, termination or discharge hereof, the
effectiveness of this Guaranty shall continue or be reinstated, as
the case may be, in the event that (a) any payment received or
credit given by Agent or any Bank in respect of the Liabilities is
returned, disgorged or rescinded as a preference, impermissible
setoff, fraudulent conveyance or otherwise under any applicable
state or federal law, including, without limitation, laws
pertaining to bankruptcy or insolvency, in which case this Guaranty
shall thereafter be enforceable against Guarantor as if such
returned, disgorged or rescinded payment or credit had not been
received or given, and whether or not Agent or any Bank relied upon
such payment or credit or changed its position as a consequence
thereof; or (b) any liability is imposed, or sought to be imposed,
against Agent or any Bank relating to the environmental condition
of, or the presence of hazardous or toxic substances on, in or
about, any property mortgaged to Agent or any Bank by the Borrower,
Guarantor or any other party as collateral (in whole or in part)
for any of the Liabilities, whether such condition is known or
unknown, now exists or subsequently arises (excluding only
conditions which arise after an acquisition by Agent or Banks of
any such property, by foreclosure and in lieu of foreclosure or
otherwise, due to the wrongful act or omission of Agent or the
Banks), in which case this Guaranty shall thereafter be enforceable
against Guarantor to the extent of all liability, costs and
expenses (including reasonable attorneys' fees) incurred by Agent
or the Banks as the direct or indirect result of any such
environmental condition or hazardous or toxic substances. For
purposes of this Guaranty, "environmental condition" includes,
without limitation, conditions existing with respect to the surface
or ground water, drinking water supply, land surface or subsurface
strata and the ambient air; and "hazardous or toxic substances"
shall include any and all substances now or subsequently determined
by any federal, state or local authority to be hazardous or toxic,
or otherwise: regulated by any such authority.
6. General. This Guaranty amends, restates and replaces in
its entirety all guaranty agreements previously executed and
delivered by Guarantor to Comerica Bank with respect to the
liabilities of Borrower and may not be amended except by express
written instrument executed by Guarantor and Agent on behalf of the
Banks, and no waiver by any party shall be effective unless given
in writing by such party. The rights and remedies provided for in
this Guaranty are cumulative, and nothing herein shall limit any
right or remedy granted Agent or the Banks by other instrument or
by law. If any term or provision of this Guaranty or its
application to any circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Guaranty, or the application
of such term or provision to circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Guaranty shall be
valid and enforceable to the fullest extent permitted by law.
Captions have been used in this Guaranty for convenience of
reference only, and shall not be given substantive effect. This
Guaranty shall be governed by and construed in accordance with the
laws of the State of Michigan.
This Guaranty has been duly executed and delivered as of the
date set forth above.
FENDERS & MORE, INC.
By:_/s/__Donald B. Hauk____________
Its:_____Executive V.P. and CFO____
Accepted by:
COMERICA BANK, as Agent
By: _/s/_Kristine L. Anderson__
Its: _____Account Officer_______
