Exhibit 10.4
GUARANTY
(this "GUARANTY")
As of July 13, 2005
Charter One Bank, N.A., as Administrative
Agent for the Lenders described below
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Credit Agreement dated as of July 13, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") by and among Monro Muffler Brake, Inc. as the Borrower
(the "BORROWER"), the several banks party thereto from time to time
(the "LENDERS"), and Charter One Bank, N.A., as Administrative Agent
(the "ADMINISTRATIVE AGENT").
Ladies and Gentlemen:
1. Guaranty. For value received, and in consideration of Borrower entering
into the Credit Agreement, the undersigned corporation (the "Guarantor"), does
hereby irrevocably, absolutely, and unconditionally guarantee (a) payment, when
due, of any and all indebtedness and other amounts of every kind, howsoever
created, arising, or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing or owing to the Lenders or the
Administrative Agent, by Borrower under the Notes as defined in the Credit
Agreement, (including, without limitation, amounts that would become due but for
operation of any applicable provision of Title 11 of the United States Code
(including, without limitation, 11 U.S.C. Sections 502 and 506)), together with
all pre- and post-maturity interest thereon (including, without limitation, all
post-petition interest if Borrower voluntarily or involuntarily files for
bankruptcy protection) (all such obligations being hereinafter collectively
referred to as the "Liabilities") and (b) the performance by Borrower of its
obligations under the Loan Papers pursuant to the terms thereof (the
"Obligations"). The Guarantor has a substantial, direct or indirect, financial
interest in the benefits and advantages which will result from the Credit
Agreement. The Guarantor hereby agrees that, upon any Default, the Guarantor
will forthwith pay the Liabilities as limited by this paragraph immediately upon
written demand or perform the Obligations.
2. Guaranty Continuing, Absolute, Unlimited. This Guaranty is a
continuing, absolute, and unlimited Guaranty of payment and the Guarantor is a
primary obligor and not a surety. The Liabilities and Obligations shall be
conclusively presumed to have been created in reliance on this Guaranty. The
Administrative Agent shall not be required to proceed first against Borrower or
any other person, firm or corporation or against any property securing any of
the Liabilities or
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Obligations before resorting to the Guarantor for payment or performance. To the
extent permitted by applicable law, this Guaranty shall be construed as a
guarantee of payment without regard to the enforceability of any of the
Liabilities or Obligations or the rejection of the Credit Agreement in
bankruptcy, and notwithstanding any claim, defense (other than payment or
performance by Borrower or the Guarantor) or right of setoff which Borrower or
the Guarantor may have against any Lender or the Administrative Agent, including
any such claim, defense, or right of setoff based on any present or future law
or order of any government (de jure or de facto), or of any agency thereof or
court of law purporting to reduce, amend, or otherwise affect any of the
Liabilities or Obligations of Borrower or any other obligor, or to vary any
terms of payment thereof, and without regard to any other circumstances which
might otherwise constitute a legal or equitable discharge of a surety or a
guarantor. The Guarantor agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment to the
Lenders or the Administrative Agent of the Liabilities or any part thereof is
rescinded or must otherwise be returned by any Lender or the Administrative
Agent upon the insolvency, bankruptcy, or reorganization of Borrower, or
otherwise, as though such payment to such Lender or the Administrative Agent had
not been made. To the extent permitted by applicable law, the Guarantor's
obligation to fully pay or perform the Liabilities and any remedy for the
enforcement thereof shall not be impaired, modified, released, or limited in any
way by any impairment, modification, release, or limitation of the liability of
Borrower or its bankruptcy estate, resulting from the operation of any present
or future provision of any Debtor Relief Law or from the decision of any court
interpreting the same.
3. Guaranty Not Affected by Change in Security or Other Actions. The
Administrative Agent and the Lenders may, from time to time, without the consent
of or notice to the Guarantor, take any or all of the following actions without
impairing or affecting (except insofar as the Liabilities are reduced or
modified thereby), the Guarantor's obligations under this Guaranty or releasing
or exonerating the Guarantor from any of its liabilities hereunder:
a. retain or obtain a security interest in any property to
secure any of the Liabilities or any obligation
hereunder;
b. retain or obtain the primary or secondary liability of
any party or parties, in addition to the Guarantor, with
respect to any of the Liabilities;
c. extend the time or change the manner, place or terms of
payment of, or renew or amend any note or other
instrument evidencing the Liabilities or any part
thereof, or amend in any manner any agreement relating
thereto, in each case in accordance with the terms of
each such agreement;
d. release or compromise, in whole or in part, or accept
full or partial payment for, any of the Liabilities
hereby guaranteed, or any liability of any nature of any
other party or parties with respect to the Liabilities
or any security therefore;
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e. enforce the Administrative Agent's or the Lenders'
security interest, if any, in all or any properties
securing any of the Liabilities or any obligations
hereunder in order to obtain full or partial payment of
the Liabilities then outstanding; or
f. release or fail to perfect, protect, or enforce the
Administrative Agent's or the Lenders' security
interest, if any, in all or any properties securing any
of the Liabilities or any obligation hereunder, or
permit any substitution or exchange for any such
property.
4. Waivers. The Guarantor hereby expressly waives to the extent permitted
by law:
a. notice of acceptance of this Guaranty;
b. notice of the existence or incurrence of any or all of
the Liabilities in accordance with the Loan Papers;
c. presentment, demand, notice of dishonor, protest, and
all other notices whatsoever (except the written demand
referred to in SECTION 1 hereinabove);
d. any requirement that proceedings first be instituted by
the Administrative Agent or any Lender against the
Borrower;
e. all diligence in collection or protection of or
realization upon the Liabilities or any part thereof, or
any obligation hereunder, or any collateral for any of
the foregoing;
f. any rights or defenses based on the Administrative
Agent's or a Lender's election of remedies, including
any defense to the Administrative Agent's or Lender's
action to recover any deficiency after a non-judicial
sale; and
g. the occurrence of every other condition precedent to
which the Guarantor might otherwise be entitled.
5. Definitions. As used in this Guaranty, capitalized terms not otherwise
defined herein will have the meanings given them in the Credit Agreement.
6. Representations, Warranties and Agreements of Guarantor. The Guarantor
represents and warrants to the Administrative Agent and the Lenders that:
a. Corporate Existence, Good Standing, Authority and
Compliance. The Guarantor is duly organized, validly
existing and in good standing under the Laws of the
jurisdiction in which it is incorporated. Except where
failure is not a Material Adverse Event, the Guarantor
(a) is duly qualified to transact business and is in
good standing as a foreign
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corporation or other entity in each jurisdiction where
the nature and extent of its business and properties
require due qualification and good standing, (b)
possesses all requisite authority, permits and power to
conduct its business as is now being, or is contemplated
to be, conducted, and (c) is in compliance with all
applicable Laws, except in each case where the failure
to so qualify, to possess such authority, permits or
power or to comply with such Law would not cause a
Material Adverse Event.
b. Authorization and Contravention. The execution and
delivery by the Guarantor of this Guaranty or related
document to which it is a party and the performance by
it of its obligations thereunder (a) are within its
corporate power, (b) have been duly authorized by all
necessary corporate action, (c) require no action by or
filing with any Tribunal (other than any action or
filing that has been taken or made on or before the date
of this Guaranty or which would not cause a Material
Adverse Event), (d) do not violate any provision of its
charter or bylaws, (e) do not violate any provision of
Law or order of any Tribunal applicable to it, other
than violations that individually or collectively are
not a Material Adverse Event, (f) do not violate any
Material Agreements to which it is a party, other than a
violation which would not cause a Material Adverse
Event, (g) do not result in the creation or imposition
of any Lien (other than the Lender Liens) on any asset
of the Guarantor, (h) are in furtherance of the
corporate purposes of the Guarantor and (i) do not
require the consent or approval of the shareholders of
the Guarantor.
c. Binding Effect. Upon execution and delivery by all
parties thereto, this Guaranty will constitute a legal
and binding obligation of the Guarantor, enforceable
against it in accordance with its terms, except as
enforceability may be limited by applicable Debtor
Relief Laws and general principles of equity.
d. Consideration. Guarantor represents and warrants that
the value of the consideration received and to be
received by it is reasonably worth at least as much as
its liability under this Guaranty, and such liability
may reasonably be expected to benefit Guarantor directly
or indirectly. NOTWITHSTANDING ANY CONTRARY PROVISION IN
THIS GUARANTY, GUARANTOR'S MAXIMUM LIABILITY HEREUNDER
IS LIMITED, TO THE EXTENT, IF ANY, REQUIRED SO THAT ITS
LIABILITY IS NOT SUBJECT TO AVOIDANCE UNDER ANY DEBTOR
RELIEF LAW.
e. Solvency. As of the date of this Guaranty, the Guarantor
is, and after giving effect to this Guaranty, will be,
Solvent.
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7. Events of Default.
a. Loan Papers. The failure of Borrower to pay any part of
the Liabilities within five (5) Business Days after it
becomes due and payable under the Loan Papers or the
occurrence and continuation of a Default under any Loan
Paper.
b. Debtor Relief. Guarantor (a) is not Solvent, (b) fails
to pay its Debts generally as they become due, (c)
voluntarily seeks, consents to, or acquiesces in the
benefit of any Debtor Relief Law, or (d) becomes a party
to or is made the subject of any proceeding provided for
by any Debtor Relief Law, other than as a creditor or
claimant, that could suspend or otherwise adversely
affect the Rights of Administrative Agent or Lenders
granted in the Loan Papers (unless, if the proceeding is
involuntary, the applicable petition is dismissed within
sixty (60) days after its filing).
c. Government Action. (a) A final non-appealable order is
issued by any Tribunal (including, but not limited to,
the United States Justice Department) seeking to cause
Guarantor to divest a significant portion of its assets
under any antitrust, restraint of trade, unfair
competition, industry regulation or similar Laws, or (b)
any Tribunal condemns, seizes or otherwise appropriates,
or takes custody or control of all or any substantial
portion of the assets of Guarantor.
d. Misrepresentation. Any material representation or
warranty made by Guarantor contained herein or in any
Loan Paper at any time proves to have been materially
incorrect when made.
8. Remedies Upon Default. Without limiting any other rights or remedies of
the Administrative Agent or the Lenders provided for elsewhere in this Guaranty
or the Loan Papers, or by any requirement of Law, or in equity, or otherwise:
a. Upon the occurrence of any Default, the Lenders may
without any notice to (except as expressly provided
herein or in and during the continuance of any Loan
Paper) or demand upon Guarantor, which are expressly
waived by Guarantor (except as to notices expressly
provided for herein or in any Loan Paper), proceed to
protect, exercise and enforce the rights and remedies of
the Lenders against Guarantor hereunder or under the
Loan Papers and such other rights and remedies as are
provided by requirement of Law or equity.
b. The rights provided for in this Guaranty and the Loan
Papers are cumulative and are not exclusive of any other
rights, powers, privileges
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or remedies provided by law or in equity, or under any
other instrument, document or agreement now existing or
hereafter arising.
c. The order and manner in which the Lenders' rights and
remedies upon the occurrence and during the continuance
of a Default are to be exercised shall be determined by
the Administrative Agent or the Lenders, as the case may
be, in its sole discretion, and all payments received by
the Administrative Agent shall be applied first to the
costs and expenses (including reasonable attorney's fees
incurred by the Administrative Agent and Lenders) of the
Administrative Agent and Lenders, then to the payment of
all accrued and unpaid amounts due under any Loan Papers
to and including the date of such application. To the
extent permitted by applicable law, no application of
payments will cure any Default, or prevent acceleration,
or continued acceleration, of amounts payable under the
Loan Papers, or prevent the exercise, or continued
exercise, of rights or remedies of the Administrative
Agent and Lenders hereunder or thereunder or under any
requirement of Law or in equity.
9. Payments. Each payment by the Guarantor to the Administrative Agent
under this Guaranty shall be made by transferring the amount thereof in
immediately available funds without set-off or counterclaim.
10. Costs, Expenses and Taxes. The Guarantor agrees to pay on demand: (i)
all reasonable out of pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Guaranty and any
other documents to be delivered hereunder, including the reasonable fees and out
of pocket expenses of counsel for the Administrative Agent with respect thereto
and with respect to advising the Administrative Agent as to its rights and
responsibilities under this Guaranty, and any modification, supplement or waiver
of any of the terms of this Guaranty, (ii) all reasonable costs and expenses of
the Administrative Agent hereunder, including reasonable legal fees and expenses
of counsel to the Agent, in connection with a default or the enforcement of this
Guaranty and (iii) reasonable costs and expenses incurred in connection with
third party professional services reasonably required by the Administrative
Agent pursuant to the Loan Papers such as appraisers, environmental consultants,
accountants or similar Persons; provided that except during the continuance of
any Default hereunder, the Administrative Agent will first obtain the consent of
the Guarantor to such expense, which consent shall not be unreasonably withheld.
Without prejudice to the survival of any other obligations of the Guarantor
hereunder, the obligations of the Guarantor under this Section shall survive the
termination of this Guaranty.
11. Subrogation. The Guarantor shall not be subrogated to, in whole or in
part, and agrees not to exercise any rights of subrogation with respect to, the
rights of the Administrative Agent or any Lender or those of any subsequent
assignee or transferee of any of the Liabilities until all the Liabilities to
the Administrative Agent and the Lenders and every such subsequent assignee or
transferee shall have been paid in full. The provisions of this SECTION 11 shall
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survive the termination of this Guaranty and any satisfaction and discharge of
Borrower by virtue of any payment, court order, or law.
12. No Waiver; Remedies. No failure on the part of the Administrative
Agent to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right,
or any abandonment or discontinuance of any steps to enforce such right,
preclude any other or further exercise thereof or the exercise of any other
right. No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other or further notice or demand in similar or other
circumstances. The remedies herein are cumulative and not exclusive of any other
remedies provided by law, at equity or in any other agreement.
13. Survival of Representations and Warranties. All representations,
warranties and covenants contained herein or made in writing by the Guarantor in
connection herewith shall survive the execution and delivery of this Guaranty,
and the termination of the Loan Papers and will bind and inure to the benefit of
the respective successors and assigns of the parties hereto, whether so
expressed or not.
14. Confidentiality. The Administrative Agent and each Lender agree to
keep any information delivered or made available by the Guarantor to it which is
clearly indicated to be confidential information, confidential from anyone other
than Persons employed or retained by the Administrative Agent who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loan Papers; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing such information (a) to any
Lender, (b) pursuant to subpoena or upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority having jurisdiction over Administrative Agent or any Lender, (d)
which has been publicly disclosed, (e) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Lender,
the Borrower, the Guarantor or their respective Affiliates may be a party, (f)
to the extent reasonably required in connection with the exercise of any remedy
hereunder, (g) to any Lender's legal counsel and independent auditors. The
Administrative Agent will promptly notify the Guarantor of any information that
it is required or requested to deliver pursuant to clause (b) or (c) of this
SECTION 14 and, if the Guarantor is a party to any such litigation, CLAUSE (e)
of this SECTION 14.
15. Separability. Should any clause, sentence, paragraph or Section of
this Guaranty be judicially declared to be invalid, unenforceable or void, such
decision will not have the effect of invalidating or voiding the remainder of
this Guaranty, and the parties hereto agree that the part or parts of this
Guaranty so held to be invalid, unenforceable or void will be deemed to have
been stricken herefrom and the remainder will have the same force and
effectiveness as if such part or parts had never been included herein.
16. Execution in Counterparts. This Guaranty may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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17. Interpretation.
a. In this Guaranty, unless a clear contrary intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Guaranty as a whole and not to
any particular Article, Section or other subdivision;
(iv) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns
are not prohibited by this Guaranty, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually; provided that nothing in this clause is intended to
authorize any assignment not otherwise permitted by this Guaranty;
(v) except as expressly provided to the contrary herein,
reference to any agreement, document or instrument (including this
Guaranty) means such agreement, document or instrument as amended,
supplemented or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms
hereof;
(vi) unless the context indicates otherwise, reference to any
Article, Section, Schedule or Exhibit means such Article or Section
hereof or such Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning
"include") means including, without limiting the generality of any
description preceding such term;
(viii) with respect to the determination of any period of
time, except as expressly provided to the contrary, the word "from"
means "from and including" and the word "to" means "to but
excluding"; and
(ix) reference to any law, rule or regulation means such as
amended, modified, codified or reenacted, in whole or in part, and
in effect from time to time.
b. The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
c. No provision of this Guaranty shall be interpreted or
construed against any Person solely because that Person or its
legal representative drafted such provision.
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18. Submission to Jurisdiction. The Guarantor, to the extent permitted by
applicable law, hereby agrees as follows:
a. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY
BE BROUGHT IN THE STATE COURTS OF NEW YORK, LOCATED IN THE BOROUGH
OF MANHATTAN OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS
GUARANTY, THE GUARANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. THE
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN SECTION 21, SUCH
SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR
ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
GUARANTOR IN ANY OTHER JURISDICTION.
b. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTY BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a)
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
19. Waiver of Jury Trial. THE GUARANTOR HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH, AND AGREES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
20. Parties. This Guaranty shall inure to the benefit of the
Administrative Agent and the Lenders and their respective successors, assigns or
transferees, and shall be binding upon the Guarantor and its successors and
assigns. The Guarantor may not assign any of its duties under
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this Guaranty without the prior written consent of the Administrative Agent. The
Administrative Agent and the Lenders may assign their respective Rights and
benefits under this Guaranty to any Participant or Purchaser in accordance with
the provisions of Section 14.12 of the Credit Agreement.
21. Notices. All notices, consents, requests, approvals, demands and other
communications provided for herein shall be in writing (including telecopy
communications) and mailed, telecopied, sent by overnight courier or delivered:
a. If to the Guarantor:
Monro Leasing, LLC
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X'Xxxxx, Senior Vice President
and Chief Financial officer
telephone: (000) 000-0000
telecopy: (000) 000-0000
b. If to the Administrative Agent:
Charter One Bank, N.A.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxx
Vice President, Corporate Banking
telecopy: (000) 000-0000
telephone: (000) 000-0000
with a copy to
Xxxxx, Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
telecopy: (000) 000-0000
telephone: (000) 000-0000
c. or, in the case of any party hereto, such other address or
telecopy number as such party may hereafter specify for such purpose
by notice to the other parties given in accordance with the
provisions of this SECTION 21.
Other than the service of process set forth in SECTION 18(a) above, all
communications shall be effective three (3) Business Days after the date when
mailed by certified mail, return receipt requested postage prepaid to any party
at its address specified above, or upon receipt if telecopied to any party to
the telecopy number set forth above, or upon receipt if delivered personally to
any party at its address specified above.
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22. Term. This Guaranty is not limited to any particular period of time,
but shall continue in full force and effect until all of the Liabilities have
been fully and finally paid or have been otherwise discharged by the
Administrative Agent and the Lenders, and the Guarantor shall not be released
from any obligation or liability hereunder until such full payment or discharge
shall have occurred.
23. Governing Law. This Guaranty and all other documents executed in
connection herewith shall be deemed to be contracts and agreements executed by
the Guarantor and Administrative Agent under the laws of the State of New York
and of the United States of America and for all purposes shall be construed in
accordance with, and governed by, the laws of said state and of the United
States of America.
24. Indemnity.
a. The Guarantor shall indemnify the Administrative Agent, each
Lender and each Affiliate thereof and their respective
directors, officers, employees and agents (each, an
"INDEMNIFIED PERSON") from, and hold each of them harmless
against, any and all losses, liabilities, claims or damages
(including reasonable legal fees and expenses) to which any of
them may become subject, insofar as such losses, liabilities,
claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension
of credit or any investigation, litigation or other proceeding
(including any threatened investigation or proceeding)
relating to the foregoing or any of the Loan Papers, and the
Guarantor shall assume the defense thereof, including the
employment of counsel at Guarantor's expense; provided that
Guarantor shall not have such right, to the extent that such
Indemnified Person shall deliver to Guarantor a written notice
waiving the benefits of the indemnification of such
Indemnified Person provided by this SECTION 24(a) in
connection with such claim, action, proceeding or suit.
Notwithstanding the foregoing, if independent counsel to such
Indemnified Person shall conclude that there may be defenses
available to such Indemnified Person which may conflict with
those available to Guarantor, Guarantor shall not have the
right to assume the defense of any such claim, action,
proceeding or suit on behalf of such Indemnified Person if
such Indemnified Person chooses to defend such claim, action,
proceeding or suit (with counsel reasonably acceptable to
Guarantor), and all reasonable costs, expenses and attorneys'
fees incurred by the Indemnified Person in defending such
claim, action, proceeding or suit shall be borne by Guarantor;
provided however, if there is more than one (1) Indemnified
Person having a right to defend such claim, action, proceeding
or suit as aforesaid, the obligation of Guarantor to pay the
fees and expenses of such Indemnified Person shall be limited
to one (1) firm of attorneys. Any Indemnified Person shall
also have the right to employ separate counsel and to
participate in its defense, but the fees and expenses of such
counsel shall be borne by such Indemnified Person. Any
decision by an Indemnified Person to employ its own counsel
(whether
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or not at Guarantor's expense) shall in no way affect any
rights of such Indemnified Person otherwise arising under this
SECTION 24(a). In addition, Guarantor will not be liable for
any settlement of any claim, action, proceeding or suit unless
Guarantor has consented thereto in writing. The foregoing
indemnity and agreement to hold harmless shall not in any
event apply to any losses, liabilities, claims, damages or
expenses incurred by reason of (i) the gross negligence or
willful misconduct of the Person to be indemnified, or (ii)
any material default by the Administrative Agent or any Lender
that is not cured within any applicable cure period, if any,
under any of the Loan Papers.
b. Without limiting any provision of this Guaranty, it is the
express intention of the parties hereto that each Person to be
indemnified hereunder or thereunder shall be indemnified and
held harmless against any and all losses, liabilities, claims
or damages: (i) arising out of or resulting from the ordinary
sole or contributory negligence of such Person or (ii) imposed
upon said party under any theory or strict liability. Without
prejudice to the survival of any other obligations of the
Guarantor hereunder and under the Loan Papers, the obligations
of the Guarantor under this Section shall survive the
termination of this Guaranty and the Loan Papers and the
payment of the Liabilities.
25. New Guaranty. In the event that (i) any Loan Paper is rejected by a
trustee or debtor-in-possession in any bankruptcy or insolvency proceeding
involving the Borrower or (ii) any Loan Paper or this Guaranty is terminated as
a result of any bankruptcy or insolvency proceeding involving the Borrower and,
if within sixty (60) days after such rejection or termination, the
Administrative Agent or its designee shall so request and shall certify in
writing to the Guarantor that it intends to perform the obligations of the
Borrower as and to the extent required under such Loan Paper or this Guaranty,
as applicable, the Guarantor will, unless prohibited by bankruptcy or other
applicable law, execute and deliver to the Administrative Agent or such
designee, a new Guaranty that shall contain the same conditions, agreements,
terms, provisions and limitations as such original Guaranty (except for any
requirements which have been fulfilled by the Borrower and the Guarantor prior
to such rejection or termination).
Sincerely yours,
MONRO LEASING, LLC,
a Delaware limited liability company
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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ACCEPTED AND AGREED as of the date first above written:
CHARTER ONE BANK, N.A.,
as Administrative Agent
By: _________________________________
Name: _______________________________
Title: ______________________________
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