Exhibit
10.38
RELEASE AND TERMINATION AGREEMENT dated as of
October 5, 2006, among ADVANCE AUTO PARTS, INC., ADVANCE
STORES COMPANY, INCORPORATED (the “ Company ”)
and JPMORGAN CHASE BANK, N.A., as Administrative Agent under the
Credit Agreement referred to below. Unless otherwise defined
herein, capitalized terms shall have the meanings assigned to such
terms in the Credit Agreement referred to below.
WHEREAS, pursuant to the Amended and Restated
Credit Agreement dated as of November 3, 2004 (as amended, the
“ Credit Agreement ”), among Advance Auto
Parts, Inc., the Company, the lenders party thereto (the
“ Lenders ”) and JPMorgan Chase Bank, N.A., as
Administrative Agent, the Lenders have extended credit to the
Company, and have agreed to extend credit to the Company, in each
case subject to the terms and conditions set forth therein;
and
WHEREAS, the Company intends, contemporaneously
with the execution of this Agreement, (a) to terminate all
remaining Commitments under the Credit Agreement and (b) to
repay all Loans outstanding under the Credit Agreement to pay all
accrued and unpaid interest and fees payable under the Credit
Agreement and to pay all other monetary obligations of the Company
accrued and owing under the Credit Agreement, including amounts
payable pursuant to any indemnity or expense reimbursement
provisions thereof (the amounts described in this clause (b) and
listed in Schedule I hereto being referred to as the “
Designated Obligations ”); and
WHEREAS, the Designated Obligations as of the
date hereof are set forth in Schedule I hereto;
NOW, THEREFORE, in consideration of the payment
in full of the Designated Obligations simultaneously with the
execution and delivery of this Agreement:
1. The parties hereto hereby agree that
(a) the Commitments are terminated and the Lenders have no
further obligation to extend credit under the Credit Agreement,
(b) all liability of the Company and Holdings and their
respective Subsidiaries in respect of the Designated Obligations is
hereby discharged and paid in full, and (c) the guarantees
created under the Guarantee Agreement and the security interests
granted by the Security Documents are hereby terminated and all
liens in respect of the Collateral are hereby released;
provided that (i) the foregoing shall not be construed
to relieve any Loan Party from its obligations under any
provisions, including indemnity or expense reimbursement
provisions, of any Loan Document that are specified in such Loan
Document to survive the termination thereof or the repayment of the
Designated Obligations and (ii) it is understood that a
portion of the amounts, if any, specified as “Break Funding
Costs” on Schedule I represents an
