Exhibit 10.3
GUARANTY
(this "GUARANTY")
As of July 13 2005
Charter One Bank, N.A., as Administrative
Agent for the Lenders described below
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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
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of the Liabilities or 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 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
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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.
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.
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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 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
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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
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.
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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.
17. Interpretation.
c. 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;
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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.
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
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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 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:
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a. If to the Guarantor:
Monro Service Corporation
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Attention: ▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇, Senior Vice
President and Chief Financial officer
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
b. If to the Administrative Agent:
Charter One Bank, N.A.
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President, Corporate Banking
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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
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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 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
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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 SERVICE CORPORATION,
a Delaware corporation
By: _________________________________________
Name:________________________________________
Title:_______________________________________
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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