Exhibit 10.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (as amended, restated, supplemented or otherwise
modified from time to time, this "AGREEMENT") is executed as of July 13, 2005,
by MONRO MUFFLER BRAKE, INC., a New York corporation ("BORROWER"), MONRO SERVICE
CORPORATION, a Delaware corporation ("MONRO SERVICE"), and MONRO LEASING, LLC, a
Delaware limited liability company ("MONRO LEASING", and together with Borrower
and Monro Service, the "DEBTORS"), for the benefit of Charter One Bank, N.A., as
Administrative Agent (in such capacity, "SECURED PARTY") for the Lenders
("LENDERS") party to the Credit Agreement (as defined below).
RECITALS
A. Borrower, Secured Party, and Lenders have executed a Credit
Agreement dated as of even date with this Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), together with certain other Loan Papers.
B. The execution and delivery of this Agreement is a condition to the
execution of the Credit Agreement and the other Loan Papers by Secured Party
and Lenders and is an integral part of the transactions contemplated by the
Loan Papers and a condition precedent to the obligations of Secured Party and
Lenders to extend credit under the Credit Agreement.
X. Xxxxx Leasing and Monro Service are wholly-owned subsidiaries of
Borrower and shall benefit, directly and indirectly, from Lenders' extension
of credit to Borrower under the Credit Agreement.
THEREFORE, Debtors covenant and agree with Secured Party as follows:
1. Certain Definitions. Unless otherwise defined in this Agreement, each
capitalized term used but not defined in this Agreement will have the
meaning given that term in the Credit Agreement or in the UCC. If the
definition given a term in the Credit Agreement conflicts with the
definition given that term in the UCC, the Credit Agreement definition
shall control to the extent allowed by Law. If the definition given a term
in Article 9 of the UCC conflicts with the definition given that term in
any other chapter of the UCC, the Article 9 definition shall control. As
used in this Agreement, the following terms have the meanings indicated:
ACCOUNTS means all accounts, instruments, receivables, accounts
receivable, contract rights, chattel paper, documents, general
intangibles, book debts, any and all amounts due to Debtors from a factor,
amounts resulting from the sale of any assets, arising from a Debtor sale
of goods or rendition of services in the ordinary course of a Debtor
business and all returned, reclaimed, refused or repossessed goods and the
books and records pertaining to the foregoing, and the cash or non-cash
proceeds resulting therefrom and all security and guaranties therefor.
AGREEMENT means this Agreement together with all schedules and
exhibits attached to this agreement, and all amendments and modifications
to this Agreement, the schedules or the exhibits.
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COLLATERAL has the meaning given in SECTION 5 of this Agreement.
CREDIT AGREEMENT has the meaning given in the Recitals.
DEBTORS mean the Debtors and their successors and assigns.
EQUIPMENT means any and all of each Debtor's equipment, wherever
located, whether now owned or hereafter acquired, including, without
limitation, any and all manufacturing, distribution, selling, data
processing and office equipment, and all machinery, forklifts, furniture,
furnishings, appliances, and trade fixtures.
INTELLECTUAL PROPERTY means any and all of Debtors' patents,
trademarks, tradenames, copyrights, techniques, processes, formulas, any
licenses for any of the foregoing and such other intangible rights,
privileges, concessions and other property of Debtors used or existing in
connection with Debtors' business that is commonly considered to
constitute intellectual property under applicable law or in accordance
with common usage.
INVENTORY means any and all of each Debtor's inventory, wherever
located, whether now owned or hereafter acquired, including without
limitation, any and all goods held for sale or lease or being processed
for sale or lease in Debtor's business as now or hereafter conducted,
including without limitation, all parts, furnishings, machinery,
furniture, fixtures and equipment, manufacturing, distribution, selling,
data processing and office equipment, appliances (excluding equipment in
which such Debtor's interest is a leasehold interest), all materials,
goods and work-in-process, finished goods, and other tangible property
held for sale or lease or furnished or to be furnished under contracts of
service or used or consumed in such Debtor's business, together with all
increases, parts, fittings, accessories, equipment, and special tools now
or hereafter affixed to any part thereof and thereto, together with all
substitutes and replacements thereof, all accessions and attachments
thereto, and all tools, parts and equipment now or hereafter added to or
used in connection with the foregoing, along with all documents (including
documents of title) covering inventory, all cash and non-cash proceeds
from the sale of inventory, including proceeds from insurance, and
including such property the sale or other disposition of which has given
rise to accounts and which has not been returned to or repossessed or
stopped in transit by such Debtor.
LEASE means any lease, sublease, license, or concession of Inventory
or other personal property of each Debtor.
OBLIGATION means the Obligations defined in the Credit Agreement.
OBLIGOR means any Person obligated with respect to any of the
Collateral, whether as a party to a contract, an account debtor or
otherwise.
SECURITY INTEREST means the security interests granted and the
pledges and collateral assignments made under SECTION 3 of this Agreement.
SECURED PARTY means Secured Party and its successors and assigns.
UCC means the Uniform Commercial Code, as in effect from time to
time in New York.
2. Credit Agreement. This Agreement is being executed and delivered
pursuant to the terms and conditions of the Credit Agreement. Each
Security Interest is a "Lien" referred to in the Credit Agreement.
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3. Security Interest. Subject to the terms and conditions of this
Agreement, and to secure the prompt, unconditional and complete payment
and performance of the Obligations when due, each Debtor grants to Secured
Party a security interest in all of such Debtor's right, title, and
interest in the Collateral and each Debtor pledges and assigns as security
to Secured Party all of such Debtor's right, title and interest in the
Collateral, provided, that, if the pledge or assignment of any specific
item of the Collateral is expressly prohibited, the Security Interest
shall, subject to Section 5 hereof, be effective to the extent allowed by
UCC Section 9-404, 9-405, 9-406 or other applicable Law.
4. No Assumption or Modification. The Security Interest is given to secure
the prompt, unconditional and complete payment and performance of the
Obligations when due, and is given as security only. Secured Party does
not assume and shall not be liable for any of Debtors' liabilities,
duties, or Obligations under or in connection with the Collateral. Secured
Party's acceptance of this Agreement, or its taking any action in carrying
out this Agreement, does not constitute Secured Party's approval of the
Collateral or Secured Party's assumption of any obligations under or in
connection with the Collateral. This Agreement does not affect or modify
Debtors' obligations with respect to the Collateral.
5. Collateral. As used in this Agreement, and subject to the immediately
succeeding sentence, the term "COLLATERAL" means the following items and
types of property, wherever located, whether now owned or hereafter
acquired by either Debtor:
a) Accounts;
b) Inventory;
c) Leases;
d) Intellectual Property; and
e) Equipment.
The description of Collateral contained in this SECTION 5 includes after
acquired Collateral and proceeds of the Collateral.
Notwithstanding any provision of this Agreement or any other Loan Paper:
(a) Debtors are pledging and collaterally assigning their right, title, and
interest in the Leases to Secured Party only to the extent, if any, that such
pledge and assignment is permitted by the terms of any Lease or by the secured
party thereunder and Debtors make no representation or warranty with respect to
the assignability of any Lease as contemplated by the Loan Papers or as to any
interest of Secured Party therein; and (b) nothing herein or in any Loan Paper
shall prohibit or give rise to any right or remedy by reason of any modification
or termination of any Lease at any time without Secured Party's consent,
including, but not limited to any such modification or termination of any Lease
on account of, arising out of or related to, any breach or alleged breach
thereof; and (c) upon sale of any Equipment in compliance with Section 9.10 of
the Credit Agreement, the Security Interest in such Equipment shall be
immediately and automatically released and Debtors shall be authorized, without
further consent of Secured Party, to file any UCC statements as may be requested
by the purchaser of such Equipment to evidence the release of the Security
Interest. Debtors agree to use commercially reasonable efforts to obtain the
consent of a lessee to the pledge and collateral assignment hereunder to Secured
Party of any Lease if necessary and it requested by Secured Party.
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6. Fraudulent Conveyance. Notwithstanding anything contained in this
Agreement to the contrary, Debtors agree that if, but for the application
of this SECTION 6, the Obligations or any Security Interest would
constitute a preferential transfer under 11 U.S.C. Section 547, a
fraudulent conveyance under 11 U.S.C. Section 547 (or any successor
section of that Code) or a fraudulent conveyance or transfer under any
state fraudulent conveyance or fraudulent transfer law or similar Law in
effect from time to time (each a "FRAUDULENT CONVEYANCE") then the
Obligations and each affected Security Interest will be enforceable to the
maximum extent possible without causing the Obligations or any Security
Interest to be a Fraudulent Conveyance, and shall be deemed to have been
automatically amended to carry out the intent of this SECTION 6.
7. Representation and Warranties. Debtors represent and warrant to Secured
Party that:
a) Place of Business Location of Records. SCHEDULE 1 to this
Agreement sets forth each Debtor's place of business and chief executive office,
the present location of its books and records concerning any of the Collateral
that is accounts or general intangibles, and its place of formation. Except as
noted on SCHEDULE 1, all such books, records, and Collateral are in its
possession. The failure of such description of Collateral on SCHEDULE 1 to be
accurate or complete will not impair the Security Interests in such Collateral.
b) No Prior Lien. Except for Permitted Liens, Debtors have not
executed any prior transfer, assignment, pledge, security interest, or
hypothecation covering the Collateral or any interest in the Collateral.
c) Authority. Each Debtor has full power and authority to execute
this Agreement without breaching any material agreement to which such Debtor is
party.
The delivery at any time by Debtors to Secured Party of Collateral or of
additional specific descriptions of certain Collateral shall constitute a
representation and warranty by Debtors to Secured Party under this Agreement
that the representations and warranties of this SECTION 7 are true and correct
with respect to each item of such Collateral.
8. Covenants. Debtors further covenant and agree with Secured Party that
so long as the Credit Agreement is in force and effect, each Debtor will:
a) Relocation of Office or Books and Records, Change of Name or
Address. Give Secured Party 30 days prior written notice of any proposed
relocation of its principal place of business, its place of formation, chief
executive office, the place where its books and records relating to accounts and
general intangibles are kept or changing its name and the address to which it is
entitled to notice under the Credit Agreement; provided that if such Debtor
gives less than 30 days' prior notice, such notice shall be sufficient for
purposes of this subparagraph (a) if, in the reasonable judgment of Secured
Party, the rights of Secured Party in the Collateral are not adversely affected.
The notice must include the street address, zip code, telephone number, city,
county or parish, and state.
b) Relocation of Collateral. Not relocate any of the Collateral to
any commonwealth, nation, territory, possession, or country outside the United
States of America.
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c) Material Change. Promptly notify Secured Party of any change in
any material fact or circumstance represented or warranted by Debtors with
respect to the Collateral.
d) Record of Collateral. Maintain, at the place where it is entitled
to receive notices under the Credit Agreement, a current record of where all
Collateral is located, upon reasonable notice permit Secured Party's
representatives to inspect and make abstracts from such records at any
reasonable time during normal business hours.
e) Adverse Claim. Promptly notify Secured Party of any claim,
action, or proceeding challenging the Security Interest or affecting title to
all or any material portion of the Collateral and, at Secured Party's request,
appear in and defend any such action or proceeding at Debtors' expense.
f) Hold Collateral In Trust. Upon the occurrence and during the
continuation of a Default, hold in trust (and not commingle with its other
assets) for Secured Party all Collateral that is chattel paper, instruments, or
documents of title at any time received by it and promptly deliver same to
Secured Party upon the request of Secured Party. Upon the occurrence and during
the continuation of a Default, at Secured Party's request, each chattel paper,
instrument, or document of title retained by Debtor shall be marked to state
that it is assigned to Secured Party and each instrument shall be endorsed to
the order of Secured Party (but failure to so xxxx or endorse shall not impair
the Security Interest).
g) No Assignment. Not sell, assign, or otherwise dispose of, or
permit the sale, assignment, or disposition of, any Collateral except as
permitted by the Loan Papers and except for the sale of Inventory in the
ordinary course of business.
h) Permitted Liens. Not create or permit the creation of, or allow
the existence of, any Lien upon or against any of the Collateral except for
Permitted Liens.
i) Further Assurance. From time to time promptly execute and deliver
to Secured Party all other assignments, certificates, supplemental documents,
and financing statements, and do all other acts or things as Secured Party may
reasonably request in order to create, evidence, perfect, continue, or maintain
the existence and priority of the Security Interest including amendments to
SCHEDULE 1.
j) Perform Obligations. Perform all of its Obligations under or in
connection with the Collateral in accordance with customary business practices.
k) Amendment. Not amend, alter, or modify, or permit the amendment,
alteration or modification of, any material portion (individually or
collectively) of the Collateral without Secured Party's prior written consent as
to the form and content of the amendment, alteration or modification, such
consent not to be unreasonably withheld or delayed.
l) Impairment of Collateral. Not do or permit any act which would
impair any material portion of the Collateral.
m) Default Under Collateral. Promptly notify Secured Party of any
default or event of default by such Debtor or any other party under or in
connection with any material
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portion (individually or collectively) of the Collateral and immediately use
reasonable efforts to remedy the same or immediately demand that the same be
remedied.
n) No Lien or Assignment. Except for Permitted Liens, not execute in
favor of any other person or entity, any assignment, pledge or hypothecation of,
or security interest in, all or any portion of the Collateral.
9. Default, Remedies. Upon the occurrence and during the continuance of a
Default, subject to the terms and conditions of the Credit Agreement,
Secured Party has the following cumulative rights and remedies under this
Agreement.
a) Debtor's Agent. Secured Party shall be deemed to be irrevocably
appointed as each Debtor's agent and attorney-in-fact with all right and power
to enforce all of such Debtor's rights and remedies under or in connection with
the Collateral. All reasonable costs, expenses and liabilities incurred and all
payments made by Secured Party as a Debtor's agent and attorney-in-fact,
including, without limitation, reasonable attorney's fees and expenses, shall be
considered a loan by Secured Party to such Debtor which shall be repayable on
demand and shall accrue interest at the Default Rate and shall be part of the
Obligations.
b) Account Debtors and Obligor. Secured Party may notify or require
each account debtor or other Obligor to make payment directly to Secured Party
and Secured Party may take control of the proceeds paid to Secured Party. Until
Secured Party elects to exercise these rights, Debtors are authorized to collect
and enforce the Collateral and to retain and expend all payments made on
Collateral. After Secured Party elects to exercise these rights, Secured Party
shall have the Right in its own name or in the name of Debtors to (i) compromise
or extend time of payment with respect to all or any portion of the Collateral
for such amounts and upon such terms as Secured Party may reasonably determine,
(ii) demand, collect, receive, receipt for, xxx for, compound, and give
acquittance for any and all amounts due or to become due with respect to
Collateral, (iii) take control of cash and other proceeds of any Collateral,
(iv) endorse any Debtor's name on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into Secured
Party's possession, (v) sign any Debtor's name on any invoice or xxxx of lading
relating to any Collateral, on any drafts against Obligor or other Persons
making payment with respect to Collateral, on assignments and verifications of
accounts or other Collateral and on notices to Obligor making payment with
respect to Collateral, (vi) send requests for verification of Obligations to any
Obligor, and (vii) do all other acts and things reasonably necessary to carry
out the intent of this Agreement. If any Obligor fails to make payment on any
Collateral when due, after giving effect to any applicable grace period, Secured
Party is authorized, in its sole discretion, either in its own name or in any
Debtor's name, to take such action as Secured Party reasonably shall deem
appropriate for the collection of any amounts owed with respect to Collateral or
upon which a delinquency exists. Regardless of any other provision of this
Agreement, however, Secured Party shall never be liable for its failure to
collect, or for its failure to exercise diligence in the collection of, any
amounts owed with respect to Collateral except for its own fraud, gross
negligence, willful misconduct or violation of any Law, nor shall it be under
any duty whatever to anyone except Debtors to account for funds that it shall
actually receive under this Agreement. A receipt given by Secured Party to any
Obligor shall be a full and complete release, discharge, and acquittance
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to such Obligor, to the extent of any amount so paid to Secured Party. Secured
Party may apply or set off the deposits against any liability of Debtors to
Secured Party.
c) UCC Rights. Secured Party may exercise any and all rights
available to a secured party under the UCC, in addition to any and all other
rights afforded by the Loan Papers, at law, in equity, or otherwise, including,
without limitation, (i) requiring Debtors to assemble all or part of the
Collateral and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to Debtors and Secured Party, (ii)
applying by appropriate judicial proceedings for appointment of a receiver for
all or part of the Collateral, (iii) applying to the Obligations any cash held
by Secured Party under this Agreement, (iv) reducing any claim to judgment, (v)
exercising the rights of offset or banker's Lien against the interest of Debtors
in and to every account and other property of Debtors in Secured Party's
possession to the extent of the full amount of the Obligations, (vi) foreclosing
the Security Interest and any other liens Secured Party may have or otherwise
realize upon any and all of the rights Secured Party may have in and to the
Collateral, or any part thereof, and (vii) bringing suit or other proceedings
before any Tribunal either for specific performance of any covenant or condition
contained in any of the Loan Papers or in aid of the exercise of any right
granted to Secured Party in any of the Loan Papers.
d) Notice. Reasonable prior notification of the time and place of
any public sale of the Collateral, or reasonable prior notification of the time
after which any private sale or other intended disposition of the Collateral is
to be made, shall be sent to Debtors and to any other Person entitled to notice
under the UCC; provided that, to the extent permitted by applicable Law, if any
of the Collateral threatens to decline speedily in value or is of the type
customarily sold on a recognized market, Secured Party may sell or otherwise
dispose of the Collateral without notification, advertisement, or other notice
of any kind if giving such prior notification is not possible without causing
undue expenses or delays; provided that notice shall be given as soon as
possible thereafter. It is agreed that notice sent or given not less than five
Business Days prior to the taking of the action to which the notice relates is
reasonable notification and notice for the purposes of this subparagraph. It
shall not be necessary that the Collateral be at the location of the sale.
e) Application of Proceeds. Secured Party shall apply the proceeds
of any sale or other disposition of the Collateral under this SECTION 9 in the
following order: First, to the payment of all its reasonable expenses incurred
in retaking, holding, and preparing any of the Collateral for sale(s) or other
disposition, in arranging for such sale(s) or other disposition, and in actually
selling or disposing of the same (all of which are part of the Obligations);
second, toward repayment of amounts reasonably expended by Secured Party under
SECTION 10; third, toward payment of the balance of the Obligations in the order
and manner specified in the Credit Agreement. Any surplus remaining shall be
delivered to Debtors or as a court of competent jurisdiction may direct.
f) Sale. Secured Party's sale of less than all the Collateral shall
not exhaust Secured Party's rights under this Agreement and Secured Party is
specifically empowered to make successive sales until all the Collateral is
sold. If the proceeds of a sale of less than all the Collateral shall be less
than the Obligations, this Agreement and the Security Interest shall remain in
full force and effect as to the unsold portion of the Collateral just as though
no sale had
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been made. In the event any sale under this Agreement is not completed or is, in
Secured Party's opinion, defective, such sale shall not exhaust Secured Party's
rights under this Agreement and Secured Party shall have the right to cause a
subsequent sale or sales to be made. Any and all statements of fact or other
recitals made in any xxxx of sale or assignment or other instrument evidencing
any foreclosure sale under this Agreement as to nonpayment of the Obligations,
or as to the occurrence of any Default, or as to Secured Party's having declared
all of such Obligations to be due and payable, or as to notice of time, place
and terms of sale and the properties to be sold having been duly given, to, as
to any other act or thing having been duly done by Secured Party, shall be taken
as prima facie evidence of the truth of the facts so stated and recited. Secured
Party may appoint or delegate any one or more Persons as agent to perform any
act or acts necessary or incident to any sale held by Secured Party, including
the sending of notices and the conduct of sale, but such acts must be done in
the name and on behalf of Secured Party.
g) Existence of Default. Regarding the existence of any Default for
purposes of this Agreement, Debtors agree that the Obligor on any Collateral may
rely upon written certification from Secured Party that such a Default exists.
Subject to the terms of the Credit Agreement, Debtors expressly agree that
Secured Party shall not be liable to Debtors for any claims, damages, costs,
expenses or causes of action of any nature whatsoever in connection with,
arising out of, or related to Secured Party's exercise of any rights, powers or
remedies under any Loan Paper except for its own fraud, gross negligence,
willful misconduct or violation of any Law.
10. Other Rights of Secured Party.
a) Performance. In the event a Debtor fails to preserve the priority
of the Security Interest in any of the Collateral, or, upon the occurrence and
during the continuance of a Default, otherwise fails to perform any of its
Obligations under the Loan Papers with respect to the Collateral, then Secured
Party may (but is not required to) prosecute or defend any suits in relation to
the Collateral or take any other action which such Debtor is required to take
under the Loan Papers, but has failed to take. Any sum which may be reasonably
expended or paid by Secured Party under this subparagraph (including, without
limitation, court costs and reasonable attorneys' fees and expenses) shall bear
interest from the date of notice to Debtors of such expenditure or payment at
the Default Rate until paid and, together with such interest, shall be payable
by such Debtor to Secured Party upon demand and shall be part of the
Obligations.
b) Collateral in Secured Party's Possession. If, upon the occurrence
and during the continuance of a Default, any Collateral comes into Secured
Party's possession, Secured Party may use such Collateral for the purpose of
preserving it or its value pursuant to the order of a court of appropriate
jurisdiction or in accordance with any other rights held by Secured Party in
respect of such Collateral. Debtors covenant to promptly reimburse and pay to
Secured Party, at Secured Party's request, the amount of all reasonable expenses
incurred by Secured Party in connection with its custody and preservation of
such Collateral, and all such expenses, costs, Taxes, and other charges shall
bear interest at the Default Rate from the date of notice to Debtors of such
expenses and costs until repaid and, together with such interest, shall be
payable by Debtors to Secured Party upon demand and shall be part of the
Obligations. However, the risk of accidental loss or damage to, or diminution in
value of, Collateral is on Debtors, except for Secured Party's own fraud, gross
negligence, willful misconduct or violation of any Law.
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Provided that Secured Party acts in accordance with all applicable Laws, Secured
Party shall have no liability for failure to obtain or maintain insurance, nor
to determine whether any insurance ever in force is adequate as to amount or as
to the risks insured. With respect to Collateral that is in the possession of
Secured Party, except for its own fraud, gross negligence, willful misconduct or
violation of any Law, Secured Party shall have no duty to fix or preserve rights
against prior parties to such Collateral and shall never be liable for any
failure to use diligence to collect any amount payable in respect of such
Collateral, but shall be liable only to account to Debtors for what it may
actually collect or receive thereon.
c) Subrogation. If any of the Obligations is given in renewal or
extension or applied toward the payment of indebtedness secured by any Lien,
Secured Party shall be, and is hereby, subrogated to all of the rights, titles,
interests, and Liens securing the indebtedness so renewed, extended, or paid.
11. Miscellaneous.
a) Reference to Miscellaneous Provisions. This Agreement is one of
the "Loan Papers" referred to in the Credit Agreement, and, therefore, this
Agreement is subject to the applicable provisions of Article 14 of the Credit
Agreement, all of which are incorporated in this Agreement by reference the same
as if set forth in this Agreement verbatim.
b) Term. Upon full and final payment of the Obligations and final
termination of the Lenders' commitment to make advances and under the Credit
Agreement without Secured Party having exercised its rights under this
Agreement, this Agreement and all the Liens of the Administrative Agent and the
Lenders on the Collateral shall automatically terminate; provided that no
Obligor on any of the Collateral shall be obligated to require as to the
termination of this Agreement, but shall be fully protected in making payment
directly to Secured Party, which payment shall be promptly paid over to Debtors
after termination of this Agreement.
c) Actions Not Releases. The Security Interest and Debtors'
Obligations and Secured Party's rights under this Agreement shall not be
released, diminished, impaired, or adversely affected by the occurrence of any
one or more of the following events: (i) the taking or accepting of any other
security or assurance for any or all of the Obligations; (ii) any release,
surrender, exchange, subordination, or loss of any security or assurance at any
time existing in connection with any or all of the Obligations; (iii) the
modification of, amendment to, or waiver of compliance with any terms of any of
the other Loan Papers without the consent of Debtors, except as required
therein; (iv) the insolvency, bankruptcy, or lack of corporate or trust power of
any party at any time liable for the payment of any or all of the Obligations,
whether now existing or hereafter occurring; (v) any renewal, extension, or
rearrangement of the payment of any or all of the Obligations, either with or
without notice to or consent of Debtors, or any adjustment, indulgence,
forbearance, or compromise that may be granted or given by Secured Party to
Debtors, in each case, except as required by the Loan Papers; (vi) any neglect,
delay, omission, failure, or refusal of Secured Party to take or prosecute any
action in connection with any other agreement, document, guaranty, or instrument
evidencing, securing, or assuring the payment of all or any of the Obligations;
(vii) any failure of Secured Party to notify Debtors of any renewal, extension,
or assignment of the Obligations or any part thereof, or the release of
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any security under any other document or instrument, or of any other action
taken or refrained from being taken by Secured Party against Debtors or any new
agreement between Secured Party and Debtors, it being understood that, except as
expressly required by the Credit Agreement, Secured Party shall not be required
to give Debtors any notice of any kind under any circumstances whatsoever with
respect to or in connection with the Obligations, including, without limitation,
notice of acceptance of this Agreement or any Collateral ever delivered to or
for the account of Secured Party under this Agreement; (viii) the illegality,
invalidity, or unenforceability of all or any part of the Obligations against
any third party obligated with respect thereto by reason of the fact that the
Obligations, or the interest paid or payable with respect thereto, exceeds the
amount permitted by Law, the act of creating the Obligations, or any part
thereof, is ultra xxxxx, or the officers, partners, or trustees creating same
acted in excess of their authority, or for any other reason; or (ix) if any
payment by any party obligated with respect thereto is held to constitute a
preference under applicable Laws or for any other reason Secured Party is
required to refund such payment or pay the amount thereof to someone else.
d) Waivers. Except to the extent expressly otherwise provided in
this Agreement or in other Loan Papers, Debtors waive (i) any Right to require
Secured Party to proceed against any other Person, to exhaust its rights in
Collateral, or to pursue any other Right which Secured Party may have; (ii) with
respect to the Obligations, presentment and demand for payment, protest, notice
of protest and nonpayment, notice of acceleration, and notice of the intention
to accelerate; and (iii) all rights of marshaling in respect of any and all of
the Collateral.
e) Financing Statement. Secured Party shall be entitled at any time
to file this Agreement or a carbon, photographic, or other reproduction of this
Agreement, as a financing statement, but the failure of Secured Party to do so
shall not impair the validity or enforceability of this Agreement.
f) Amendments. This Agreement may only be amended by a writing
executed by Debtors and Secured Party.
g) Multiple Counterparts. This Agreement may be executed in any
number of identical counterparts. Each counterpart shall be deemed an original
for all purposes and all counterparts, collectively, shall constitute one
Agreement. In making proof of this Agreement, it shall not be necessary to
produce or account for more than one set of counterpart signatures.
h) Parties Bound. This Agreement shall be binding on Debtors and
their successors and assigns and shall inure to the benefit of Secured Party and
its successors and assigns. The Obligations and agreements of Debtors under this
Agreement shall be binding upon their successors and assigns, and, except for
Secured Party's fraud, gross negligence, willful misconduct, and violation of
any applicable Law, delivery or other accounting of Collateral to Debtors shall
discharge Secured Party of all liability therefor.
i) Assignment. Debtors may not, without Secured Party's prior
written consent, assign any rights, duties, or Obligations under this Agreement.
j) Notice. Any notice or communication required or permitted under
this Agreement must be given as prescribed in the Credit Agreement.
89
k) Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND, AS
APPLICABLE, THE LAWS OF THE UNITED STATES OF AMERICA.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
90
EXECUTED as of the date set forth in the preamble.
MONRO MUFFLER BRAKE, INC.,
a New York corporation
By: _________________________________________
Xxxxxxxxx X'Xxxxx, Executive
Vice President of Finance, Chief
Financial Officer, and Treasurer
MONRO LEASING, LLC, a Delaware limited
liability company
By: MONRO MUFFLER BRAKE, INC.,
its Sole Member
By: ____________________________________
Xxxxxxxxx X'Xxxxx, Executive Vice
President of Finance, Chief
Financial Officer, and Treasurer
MONRO SERVICE CORPORATION,
a Delaware corporation
By: _________________________________________
Xxxxxxxxx X'Xxxxx, Treasurer
CHARTER ONE BANK, N.A.,
as Administrative Agent
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
91
SCHEDULE 1
LOCATION OF (1) BOOKS AND RECORDS AS TO ACCOUNTS, (2) CHIEF EXECUTIVE OFFICE,
AND (3) PLACE OF FORMATION:
Monro Muffler Brake, Inc.
a New York corporation
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Monro Leasing, LLC
a Delaware limited liability company
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Monro Service Corporation
a Delaware corporation
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
92
