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.
REPUBLIC AUTOMOTIVE PARTS SALES, 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_______
