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EXHIBIT 10.8
GUARANTY
As of September 15, 1998
Brazos Automotive Properties, L.P. (the "LESSOR")
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Re: Agreement for Ground Lease, Ground Lease Agreement ("GROUND
LEASE"), Agreement for Facilities Lease and Facilities Lease
Agreement ("FACILITIES LEASE") (collectively, the "LEASE
DOCUMENTS") each between Brazos Automotive Properties, L.P., a
Delaware corporation, and Monro Leasing, LLC, a Delaware
limited liability company (the "LESSEE"), and each effective
as of September 15, 1998 (the "CLOSING DATE")
Gentlemen:
1. GUARANTY. For value received, and in consideration of your entering
into the Lease Documents with the Lessee, MONRO MUFFLER BRAKE, INC., a New York
corporation (the "GUARANTOR"), does hereby unconditionally, irrevocably, and
absolutely guarantee (a) the full payment when due, whether at the stated due
date, by acceleration or otherwise, of any and all rent, 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 you
by the Lessee pursuant to the Lease Documents and the Lessee Consent (as defined
in the Lease Documents), and (b) the performance by the Lessee of its
obligations under the (i) Lease Documents pursuant to the terms of the Lease
Documents and (ii) the Lessee Consent pursuant to the Lessee Consent (all such
obligations being hereinafter collectively called the "LIABILITIES"). The
Guarantor hereby agrees that upon any default by the Lessee in the payment of
any of the Liabilities when and as due or in the performance of its other
obligations thereunder, it will, upon written demand by the Lessor, forthwith
pay the same immediately or perform or cause Lessee to perform such obligations.
2. GUARANTY CONTINUING, ABSOLUTE, UNLIMITED. This Guaranty is a
continuing, irrevocable, absolute guaranty of performance and payment as a
primary obligor and not as a surety. This Guaranty shall apply to all
Liabilities. The Liabilities shall be conclusively presumed to have been created
in reliance on this Guaranty. You shall not be required to proceed first against
the Lessee or any other person, firm or corporation or against any property
securing any of the Liabilities before resorting to the Guarantor for payment.
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, the rejection of the Lease Documents in bankruptcy, or any
limitation of claims against the Lessee, and notwithstanding any claim, defense
(other than payment or performance by the Guarantor) or right of set-off which
the Lessee or the Guarantor may have against you, including any such claim,
defense or right of set-off 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 obligations of the Lessee,
or any other obligor, or to vary any terms of payment, 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 you of the Liabilities or any part thereof is rescinded or must
otherwise be returned by you to the Guarantor upon the insolvency, bankruptcy or
reorganization of the Lessee, or otherwise, as though such payment to you 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
Lessee or its bankruptcy estate, resulting from the operation of any present or
future provision of the Bankruptcy Code or 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. You
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
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(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 therefor;
(e) enforce your 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 your
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 Lease Documents;
(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
you against the Lessee;
(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 Lessor's election of
remedies, including any defense to the Lessor'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, the following terms will have
the following meanings, unless the context otherwise requires:
ACCOUNTANTS mean Pricewaterhouse Coopers, LLP or other firm of
independent public accountants of nationally recognized standing retained by
Guarantor or any other firm acceptable to the Lessor.
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ADJUSTED DEBT means Funded Debt, plus the product of eight (8) times
Rental Payments.
AFFILIATE means, as to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person or any Subsidiary of such Person. The
term "control" (including the terms "controlled by" or "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether as
general partner, through ownership of a Control Percentage of such Person or the
general partner of such Person, by contract or otherwise.
AGENT means The Chase Manhattan Bank, a national banking association,
and its successor or successors as administrative agent for Lenders under the
Credit Agreement.
BUSINESS DAY means for all purposes, any day other than Saturday,
Sunday, and any other day that commercial banks are authorized by Law to be
closed in New York, New York.
CAPEX means, for any Four Quarter Period, capital expenditures for
fixed or capital assets that are required to be capitalized on a balance sheet
prepared in accordance with GAAP minus any net proceeds of allowable
sale/leasebacks permitted by SECTION 8N.
CAPITALIZED LEASE means any lease the obligation for Rental Payments
with respect to which is required to be capitalized on a consolidated balance
sheet of the lessee and its subsidiaries in accordance with GAAP.
CASH EQUIVALENTS means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government of any agency thereof, (b) certificates of deposit,
time deposits, overnight bank deposits, bankers acceptances and repurchase
agreements of any commercial bank which has capital and surplus in excess of
$100,000,000 having maturities of one year or less from the date of acquisition,
(c) commercial paper of an issuer rated at least A-2 by Standard & Poor's
Ratings Group or P-2 by Xxxxx'x Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments, (d) money market
accounts or funds with or issued by "Qualified Issuers", (e) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, (f) demand deposit accounts
maintained in the ordinary course of business with any bank, or with any bank
that is not a bank, not in excess of $100,000 in the aggregate on deposit with
any such bank, and (g) marketable securities of the same or similar type as
owned by the Guarantor as of July 31, 1998, the aggregate actual purchase price
of which shall not exceed $100,000 at any one time.
CHANGE OF CONTROL shall mean the occurrence of one or more of the
following: (a) until Guarantor hires a Chief Executive Officer, members of the
Ownership Group ceasing to own in the aggregate, directly or indirectly,
beneficially or of record, at least (i) sixty percent 60%of the Preferred Stock,
issued and outstanding at any time or (ii) fifteen percent (15%) of the Common
Stock, issued and outstanding at any time, or (b) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any person or group, other
than the Ownership Group, of (i) shares representing more than 35% of the Common
Stock, issued and outstanding at any time or (ii) more than sixty percent (60%)
of the Preferred Stock, issued and outstanding at any time, or (c) the
occupation of a majority of the seats (other than vacant seats) on the board of
directors of Guarantor or any Subsidiary of Guarantor by Persons who were
neither (i) nominated by the board of directors of Guarantor nor (ii) appointed
by directors so nominated. As used in this definition of "Change of Control,"
terms defined in the Securities Exchange Act of 1934 or the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof,
shall have the respective meanings ascribed to them therein.
CHASE means The Chase Manhattan Bank.
CLOSING DATE has the meaning given to that term in the Credit
Agreement.
CODE means the Internal Revenue Code of 1986, as amended from time to
time, and related rules and regulations promulgated thereunder by the Internal
Revenue Service.
COMMON STOCK means the common stock of the Guarantor, $.01 par value
per share.
COMPANY OR COMPANIES means, at any time, Guarantor and each of its
Subsidiaries.
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COMPLIANCE CERTIFICATE means a certificate substantially in the form of
the attached EXHIBIT A and signed by a Responsible Officer.
CONTROL PERCENTAGE means, with respect to any Person (a) in the case of
a corporation, the percentage of the outstanding capital stock of such Person
having ordinary voting power which gives the direct or indirect holder of such
stock the power to elect a majority of the Board of Directors of such Person and
(b) in the case of a limited partnership, the percentage of the outstanding
limited partnership interests of such Person which gives the direct or indirect
holder of such limited partnership interests the power to remove the general
partner or partners of such Person or to take actions reserved for the limited
partners under the applicable limited partnership act.
CREDIT AGREEMENT means the Senior Secured Credit Agreement among the
Guarantor, the Agent, the Syndication Agent named therein and the Lenders named
therein, as amended, supplemented or restated from time to time.
CURRENT FINANCIALS means, at any time, the consolidated Financial
Statements of Guarantor and its Subsidiaries most recently delivered to Agent
under SECTIONS 7A.(I) or 7A.(II), as the case may be.
DEBT means (without duplication), for any Person, (a) indebtedness of
such Person for borrowed money; (b) obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; (c) obligations of such
Person to pay the deferred purchase price of property or services; (d)
obligations of such Person as lessee under Capitalized Leases required to be
capitalized under GAAP; (e) reimbursement obligations in respect of bonds or
letters of credit; (f) obligations of such Person under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) of such
Person to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness of others of the kinds referred to in
clauses (a) through (e) above; and (g) indebtedness of others of the kinds
referred to in clauses (a) through (f) secured by any Lien on or in respect of
any property of such Person whether or not assumed by such Person; provided,
however, that all trade accounts payable and accrued expenses incurred in the
ordinary course of business of such Person and not overdue shall be excluded
from the foregoing.
DEBTOR RELIEF LAWS means Title 11 of the United States Code and all
other applicable state or federal liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments or similar Laws affecting creditors' Rights in effect from time to
time.
DEFAULT is defined in SECTION 10.
DISTRIBUTION means, with respect to any shares of any capital stock or
other equity securities or other interests issued by a Person, (a) the
retirement, redemption, purchase or other acquisition for value of those
securities by such Person, (b) the declaration or payment of any dividend on or
with respect to those securities by such Person (except distributions in the
form of such securities, (c) any loan or advance by that Person to, or other
investment by that Person in, the holder of any of those securities, and (d) any
other payment by that Person with respect to those securities.
DOLLARS and $ means lawful money of the United States of America.
EBITDAR means, as determined, on a rolling twelve month basis and in
respect of any Person the sum of (i) the Net Income of such Person, plus (ii)
the Interest Expense of such Person for such period as determined in accordance
with GAAP and as such item is reported on such Person's financial statements,
(iii) the income tax expense of such Person for such period, (iv) the amount
reported as the depreciation of the assets of such Person for such period,
computed in accordance with GAAP, and as such item is used in the computation of
such Person's Net Income for such period, (v) the amount reported as the
amortization of intangibles for such Person for such period, computed in
accordance with GAAP, and as such item is used in the computation of such
Person's Net Income for such period, and (vi) Rental Payments.
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
IV of ERISA and established or maintained by any Company.
ENVIRONMENTAL LAW means any Law that relates to the pollution or
protection of the environment or to Hazardous Substances.
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ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and related rules and regulations.
FINANCIAL STATEMENTS of a Person means balance sheets, profit and loss
statements, reconciliations of capital and surplus, and statements of cash flow
prepared (a) according to GAAP, (b) in comparative form to prior year-end
figures or corresponding periods of the preceding fiscal year, as applicable,
and (c) on a consolidated basis if that Person had any consolidated Subsidiaries
during the applicable period.
FIXED COVERAGE RATIO means, as determined, on a rolling twelve month
basis the ratio of (a) EBITDAR minus CAPEX for such period, to (b) (i) Rental
Payments, plus (ii) Interest Expense due in respect of Debt for such period of
Guarantor and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
FOUR QUARTER PERIOD means a period of four full consecutive fiscal
quarter-annual periods, taken together as one accounting period; provided,
however, for the (a) first fiscal quarter period following the Closing Date and
ending on December 31, 1998, the income statement times four (4) annualized
shall be utilized; (b) second fiscal quarter period following the Closing Date
and ending March 31, 1999, the six (6) months income statement times two (2)
annualized shall be utilized; and (c) third fiscal quarter period following the
Closing Date and ending June 30, 1999, the nine (9) months income statement
divided by three (3) then multiplied times four (4) annualized shall be
utilized.
FUNDED DEBT means, when determined, on a rolling twelve month basis,
calculated using the month-end balance for each month on a consolidated basis
for the Companies in accordance with GAAP: (a) indebtedness of such Person for
borrowed money; (b) obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, and (c) obligations of such Person as lessee
under Capitalized Leases; excluding notes generated in the ordinary course of
payable within one year not to exceed $1,000,000 and trade payables and accrued
expenses; PROVIDED HOWEVER, the calculation for the period commencing with the
Closing Date and ending twelve months thereafter, shall be based on the average
of the month-end balance for the months elapsed since the Closing Date.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board that are applicable from time to time,
applied on a basis consistent with those used in preparation of the audited
consolidated financial statements referred to in SECTION 7A.(I) (except for
changes concurred in by Guarantor's Accountants).
HAZARDOUS SUBSTANCE means any substance (a) the presence of which
requires removal, remediation, or investigation under any Environmental Law, or
(b) that is defined or classified as a hazardous waste, hazardous material,
pollutant, contaminant or toxic or hazardous substance under any Environmental
Law.
INTEREST EXPENSE means, in respect of a Person, for any Four Quarter
Period, all interest paid or accrued and amortization of debt discount with
respect to all Funded Debt of such Person for such period (after giving effect
to the net cost associated with all interest rate swap agreements, interest rate
cap agreements, interest rate collar agreements, or other financial arrangements
designed to protect such Person against fluctuations in interest rates) and
after giving credit for interest income and construction period interest income.
LAWS means all applicable statutes, laws, treaties, ordinances, rules,
regulations, orders, writs, injunctions, decrees, judgments, opinions and
interpretations of any Tribunal, as in effect from time to time.
LENDER LIENS means Liens in favor of Lenders, or Agent on behalf of
Lenders, securing any of the Obligations (as that term is defined in the Credit
Agreement).
LENDERS means the financial institutions named in the Credit Agreement,
and their respective successors and assigns (but not any Participant who is not
otherwise a party to the Credit Agreement).
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement or encumbrance of any kind and any other
arrangement for a creditor's claim to be satisfied from assets or proceeds prior
to the claims of other creditors or the owners.
LITIGATION means any action by or before any Tribunal.
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MATERIAL ADVERSE EVENT means any circumstance or event that,
individually or collectively with other circumstances or events, reasonably is
expected to result in any (a) impairment of the ability of Lessee to perform any
of its payment or other material obligations under any Lease Document or of the
Guarantor to perform any of its payment or other material obligations under this
Guaranty, (b) impairment of the ability of Lessor to enforce (i) any of the
material obligations of the Guarantor under this Guaranty or (ii) any of their
respective Rights under the Lease Documents, or (c) material and adverse effect
on the business, assets, property or condition (financial or otherwise) of the
Companies as a whole as represented to Lessor in the Current Financials.
MATERIAL AGREEMENT means, for any Person, any agreement (excluding
purchase orders for material or inventory in the ordinary course of business) to
which that Person is a party, by which that Person is bound, or to which any
assets of that Person may be subject, and that is not cancelable by that Person
upon thirty (30) or fewer days' notice without liability for further payment
other than nominal penalty, and that requires that Person to pay more than
$1,000,000 during any 12-month period.
MINORITY INTERESTS means any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares as required by law) that are
not owned by the Guarantor and/or one or more of its Wholly-Owned Subsidiaries.
Minority Interests shall be valued by valuing Minority Interests constituting
preferred stock at the voluntary or involuntary liquidating value of such
preferred stock, whichever is greater, and by valuing Minority Interests
constituting common stock at the book value of capital and surplus applicable
thereto adjusted, if necessary, to reflect any changes from the book value of
such common stock required by the foregoing method of valuing Minority Interests
in Preferred Stock.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any Company
(or any Person that, for purposes of Title IV of ERISA, is a member of
Guarantor's controlled group or is under common control with Guarantor within
the meaning of Section 414 of the Code) is making, or has made, or is accruing,
or has accrued, an obligation to make contributions.
NET INCOME means, in respect of a Person, the net income of such Person
computed in accordance with GAAP and as such item is reported from time to time
on such Person's statement of income and retained earnings (or similar
statement) (after deduction for payment of all taxes).
OWNERSHIP GROUP means Xxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxx and their spouses or lineal descendants, or any estate of such parties
or any trust of which any of the foregoing are the exclusive beneficiaries.
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established under ERISA.
PERMITTED DEBT means Debt described on the attached SCHEDULE 6N.
PERMITTED LIENS means Liens described on the attached SCHEDULE 6J.
PERSON means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof, or any trustee, receiver, custodian or similar official.
POTENTIAL DEFAULT means the occurrence of any event or the existence of
any circumstance that would, upon notice or lapse of time or both, become a
Default.
PREFERRED STOCK means the Guarantor's Class C Convertible Preferred
Stock, $1.50 par value per share.
QUALIFIED ISSUER means any commercial bank (a) which has capital and
surplus in excess of $100,000,000 and (b) the outstanding long term debt
securities of which are rated at least A-2 by Standard & Poors Ratings Group or
at least P-2 by Xxxxx'x Investors Service, Inc., or carry an equivalent rating
by a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments.
RENTAL PAYMENTS means, as determined, on a rolling twelve month basis
ending on the last day of the accounting period covered by the consolidated
financial statements of Guarantor and its Subsidiaries, and delivered pursuant
to this Guaranty, the dollar amount of the fixed payments which Guarantor or its
Subsidiaries are required to make by the terms
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of any lease to its landlords during such period; (a) excluding, however (i)
rentals under Capitalized Leases, (ii) maintenance, repairs, taxes and other
similar changes included in such payments, and (iii) amounts constituting step
rent in accordance with GAAP and (b) less (x) rental income and (y) amortization
of deferred gains on sale-leasebacks; PROVIDED, HOWEVER, the calculation for the
period commencing with the Closing Date and ending twelve months thereafter,
shall be based on (1) the Four Quarter Period for all lease or ground lease
payments which Guarantor or its Subsidiaries are required to make to Brazos
Automotive Properties, L.P., as lessor under an operating lease with Monro
Leasing, LLC, and (2) the average of all lease or ground lease payments which
Guarantor or its Subsidiaries are required to make in connection with properties
acquired under the APA.
REPORTABLE EVENT means an event described in Section 4043 of ERISA
excluding any such event for which the notice requirement is waived under
applicable regulations of the PBGC.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys and agents.
RESPONSIBLE OFFICER means the chairman, president, senior
vice-president, executive vice-president, chief executive officer or chief
financial officer of Guarantor.
RIGHTS means rights, remedies, powers, privileges and benefits.
SOLVENT means, as to a Person, that (a) the aggregate fair market value
of its assets exceeds its liabilities, (b) it has sufficient cash flow to enable
it to pay its Debts as they mature, and (c) it does not have unreasonably small
capital to conduct its businesses.
SUBSIDIARY of any Person means any entity of which at least 50% (in
number of votes) of the stock (or equivalent interests) is owned of record or
beneficially, directly or indirectly, by that Person.
TANGIBLE ASSETS of any Person means, as of the date of any
determination thereof, the total amount of all assets of such Person (less
depreciation, depletion and other properly deductible valuation reserves) after
deducting the following: good will, patents, trade names, trade marks,
copyrights, franchises, experimental expense, organization expense, unamortized
debt discount and expense, deferred assets (other than prepaid insurance and
deferred taxes), any write up in the book value of any asset resulting from a
revaluation thereof subsequent to December 31, 1998, and such other assets as
are properly classified as "intangible assets" in accordance with GAAP.
TANGIBLE NET WORTH means as of the date of any determination thereof,
the sum of the capital stock of all classes, paid-in-capital and surplus
accounts (net of treasury shares) plus (or minus in the case of a deficit) the
retained earnings of the Guarantor and its Subsidiaries determined on a
consolidated basis in accordance with GAAP, after elimination of Minority
Interests, less all assets which are not Tangible Assets.
TAXES means, for any Person, taxes, assessments or other governmental
charges or levies imposed upon it, its income, or any of its properties,
franchises or assets.
TRIBUNAL means any (a) local, state, or federal judicial, executive, or
legislative instrumentality, (b) private arbitration board or panel having
binding authority with respect to any party to be bound thereby pursuant to a
written agreement entered into by such party, or (c) central bank.
UCP means the Uniform Customs and Practices for Documentary Credit
(1993 version), International Chamber of Commerce Publication No. 500 (as
amended or modified from time to time).
WHOLLY-OWNED SUBSIDIARY means a Subsidiary owned 100% by Guarantor.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lessor as follows:
a. CORPORATE EXISTENCE, GOOD STANDING, AUTHORITY AND COMPLIANCE. Each
of the Guarantor and the Lessee is duly organized, validly existing and in good
standing under the Laws of the jurisdiction in which it is incorporated or
organized as identified on the attached SCHEDULE 6a. or on the most recently
amended SCHEDULE 6a. Except where failure is not a Material Adverse Event, each
of the Guarantor and the Lessee (a) is duly qualified to transact business and
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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 (those jurisdictions being identified on the
attached SCHEDULE 6a. or on the most recently amended SCHEDULE 6a., (b)
possesses all requisite authority, permits and power to conduct its business as
is now being, or is contemplated by this Guaranty 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. SUBSIDIARIES. As of the date of this Guaranty, Guarantor has no
Subsidiaries except as disclosed on the attached SCHEDULE 6b. or on the most
recently amended SCHEDULE 6b. reflecting changes to the schedule as a result of
transactions permitted by this Guaranty. All of the outstanding shares of
capital stock (or similar voting interests) of those Subsidiaries are duly
authorized, validly issued, fully paid and nonassessable and are owned of record
and beneficially as set forth thereon, free and clear of any Liens,
restrictions, claims or Rights of another Person, other than Permitted Liens,
and are not subject to any warrant, option or other acquisition Right of any
Person or subject to any transfer restriction except for restrictions imposed by
securities Laws and general corporate Laws.
c. AUTHORIZATION AND CONTRAVENTION. The execution and delivery by the
Guarantor of this Guaranty and by the Lessee of each Lease Document or related
document to which it is a party and the performance by it of its obligations
thereunder (a) are within its corporate or limited liability company power, as
the case may be, (b) have been duly authorized by all necessary corporate or
limited liability company action, as the case may be, (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 Lessee or 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.
d. BINDING EFFECT. Upon execution and delivery by all parties thereto,
each Lease Document will constitute a legal and binding obligation of the
Lessee, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable Debtor Relief Laws and general
principles of equity.
e. FINANCIAL STATEMENTS; FISCAL YEAR. The Current Financials were
prepared in accordance with GAAP and present fairly, in all material respects,
the consolidated financial condition, results of operations, and cash flows of
the Companies as of, and for the portion of the fiscal year ending on the date
or dates thereof (subject only to normal year-end adjustments). All material
liabilities of the Companies as of the date or dates of the Current Financials
are reflected therein or in the notes thereto. Except for transactions directly
related to, or specifically contemplated by, the Lease Documents or disclosed to
Lessor, no subsequent material adverse changes have occurred in the consolidated
financial condition of the Companies from that shown in the Current Financials,
nor has any Company incurred any subsequent material liability.
f. LITIGATION. Except as disclosed on the attached SCHEDULE 6f. or the
most recently amended SCHEDULE 6f., neither the Lessee nor the Guarantor is
subject to, or aware of the threat of, any Litigation that is reasonably likely
to be determined adversely to the Lessee or the Guarantor or, if so adversely
determined, is a Material Adverse Event. Except as permitted under SECTION 10D.,
no outstanding and unpaid judgments against either the Lessee or the Guarantor
exist.
g. TAXES. All Tax returns of each of the Lessee and the Guarantor
required to be filed have been filed (or extensions have been granted) before
delinquency, except for returns for which the failure to file is not a Material
Adverse Event, and all Taxes imposed upon each of the Lessee and the Guarantor
that are due and payable have been paid before delinquency, other than Taxes for
which the criteria for Permitted Liens have been satisfied or for which
nonpayment is not a Material Adverse Event.
h. ENVIRONMENTAL MATTERS. Except as disclosed on SCHEDULE 6h. or on the
most recently amended SCHEDULE 6h., (a) no Company knows of any environmental
condition or circumstance materially adversely affecting any Company's
properties taken as a whole or operations, (b) no Company has received any
report of any Company's material violation of any Environmental Law, (c) no
Company knows that any Company is under any obligation to remedy any material
violation of any Environmental Law, or (d) no facility of any Company is used
for, or to the knowledge of any Company has been used for, storage, treatment or
disposal of any Hazardous Substance, excluding the storage of Hazardous
Substances in amounts commonly and lawfully used in automotive repair shops
which have been handled in compliance
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with applicable Environmental Law. Except as disclosed in SCHEDULE 6h., each
Company has taken prudent steps to determine that its properties and operations
do not violate any Environmental Law, other than violations that are not,
individually or in the aggregate, a Material Adverse Event, except where such
condition, circumstance, violation or non-compliance would not reasonably be
expected to have a monetary impact or cost to the Guarantor equal to or in
excess of five percent (5%) of the Guarantor's pre-tax income during the
preceding Four Quarter Period, such amount not to exceed $1,000,000.
i. EMPLOYEE PLANS. Except where occurrence or existence is not a
Material Adverse Event, (a) no Employee Plan has incurred an "accumulated
funding deficiency" (as defined in section 302 of ERISA or section 412 of the
Code), (b) no Company has incurred liability under ERISA to the PBGC in
connection with any Employee Plan (other than required insurance premiums, all
of which have been paid), (c) no Company has withdrawn in whole or in part from
participation in a Multiemployer Plan, (d) no Company has engaged in any
"prohibited transaction" (as defined in section 406 of ERISA or section 4975 of
the Code), and (e) no Reportable Event has occurred, excluding events for which
the notice requirement is waived under applicable PBGC regulations.
j. PROPERTIES; LIENS. Each of the Guarantor and the Lessee has good and
marketable title to all its property reflected on the Current Financials (except
for property that is obsolete or that has been disposed in the ordinary course
of business or, after the date of this Guaranty, as otherwise permitted by
SECTION 8H. or SECTION 8I.). Except for Permitted Liens, no Lien exists on any
property of the Guarantor or the Lessee, and the execution, delivery,
performance or observance of the Lease Documents will not require or result in
the creation of any Lien (other than Lender Liens) on the Guarantor's or the
Lessee's property.
k. GOVERNMENT REGULATIONS. No Company is subject to regulation under
the Investment Company Act of 1940, as amended, or the Public Utility Holding
Company Act of 1935, as amended.
l. TRANSACTIONS WITH AFFILIATES. Except as disclosed on the attached
SCHEDULE 6L. other than the most recently amended SCHEDULE 6l. (if the
disclosures are approved by the Lessor), neither the Guarantor nor the Lessee is
a party to a material transaction with any of its Affiliates (excluding other
Companies), other than transactions in the ordinary course of business and upon
fair and reasonable terms not materially less favorable than it could obtain or
could become entitled to in an arm's-length transaction with a Person that was
not its Affiliate. For purposes of this SECTION 6l., a transaction is "material"
if it requires either the Guarantor or the Lessee to pay more than $1,000,000
during the term of the governing agreement.
m. DEBT. Neither the Guarantor nor the Lessee is an obligor on any
Funded Debt, other than Permitted Debt.
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n. MATERIAL AGREEMENTS. No default or potential default exists on the
part of either the Guarantor or the Lessee under any Material Agreement that is
a Material Adverse Event.
o. INSURANCE. Each of the Guarantor and the Lessee maintains with
financially sound, responsible, and reputable insurance companies or
associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it
operates) insurance concerning its properties and businesses against casualties
and contingencies and of types and in amounts (and with co-insurance and
deductibles) as is customary in the case of similar businesses.
p. LABOR MATTERS. No actual or threatened strikes, labor disputes, slow
downs, walkouts, or other concerted interruptions of operations by the employees
of the Guarantor or the Lessee that are a Material Adverse Event exist. Hours
worked by and payment made to employees of the Guarantor and the Lessee have not
been in violation of the Fair Labor Standards Act or any other applicable Law
dealing with labor matters, other than any violations, individually or
collectively, that are not a Material Adverse Event. All payments due from the
Guarantor and the Lessee for employee health and welfare insurance have been
paid or accrued as a liability on its books, other than any nonpayments that are
not, individually or collectively, a Material Adverse Event.
q. SOLVENCY. As of the date of this Guaranty, the Lessee and the
Guarantor are, and after giving effect to this Guaranty the Guarantor will be,
Solvent.
r. TRADE NAMES. Neither the Guarantor nor the Lessee has used or
transacted business under any other corporate or trade name in the five-year
period preceding the date of this Guaranty, except as disclosed on the attached
SCHEDULE 6R..
s. INTELLECTUAL PROPERTY. Each of the Guarantor and the Lessee owns or
has the right to use all material licenses, patents, patent applications,
copyrights, service marks, trademarks, trademark applications and trade names
necessary to continue to conduct its businesses as presently conducted by it and
proposed to be conducted by it immediately after the date of this Guaranty. Each
of the Guarantor and the Lessee is conducting its business without infringement
or claim of infringement of any license, patent, copyright, service xxxx,
trademark, trade name, trade secret or other intellectual property right of
others, other than any infringements or claims that, if successfully asserted
against or determined adversely to either the Guarantor or the Lessee, would
not, individually or collectively, constitute a Material Adverse Event. To the
knowledge of the Guarantor, no infringement or claim of infringement by others
of any material license, patent, copyright, service xxxx, trademark, trade name,
trade secret or other intellectual property of either the Guarantor or the
Lessee exists.
t. FULL DISCLOSURE. All information previously furnished, furnished on
the date of this Guaranty, and furnished in the future, by the Guarantor or the
Lessee to Lessor in connection with the Lease Documents (a) was, is, and will
be, true and accurate in all material respects or based on reasonable estimates
on the date the information is stated or certified, and (b) did not, does not,
and will not, fail to state any fact the omission of which would otherwise make
any such information materially misleading.
u. YEAR 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (a) the Guarantor's and its
Subsidiaries' computer systems and (b) equipment containing embedded microchips
(including systems and equipment supplied by others or with which Guarantor's or
its Subsidiaries' systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be completed by October 1, 1999; provided,
however, that Guarantor shall provide to Lessor and Agent a status report on the
efforts of Guarantor and its Subsidiaries to complete the foregoing programming
by July 1, 1999. The cost to the Guarantor and its Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Guarantor and its Subsidiaries (including, without limitation,
reprogramming errors and the failure of others' systems or equipment) will not
result in a Default or a Material Adverse Event.
7. AFFIRMATIVE COVENANTS. So long as any Lease Document is in force and
effect, Guarantor covenants and agrees as follows:
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a. ITEMS TO BE FURNISHED. Guarantor shall cause the following to be
furnished to Lessor:
i. Promptly after preparation, and no later than one hundred
(100) days after the last day of each fiscal year of Guarantor, Financial
Statements showing the consolidated financial condition and results of
operations of the Companies as of, and for the year ended on, that last day,
accompanied by:
(i) the unqualified opinion of Guarantor's
Accountants, based on an audit using generally accepted auditing
standards, that the Financial Statements were prepared in accordance
with GAAP and present fairly, in all material respects, the
consolidated financial condition and results of operations of the
Companies,
(ii) a certificate from the accounting firm to Lessor
indicating that during its audit it obtained no knowledge of any
Default or Potential Default or, if it obtained knowledge, the nature
and period of existence thereof, and
(iii) a Compliance Certificate with respect to the
Financial Statements.
ii. Promptly after preparation, and no later than fifty (50)
days after the last day of the first three fiscal quarters of Guarantor,
Financial Statements showing the consolidated financial condition and results of
operations of the Companies for the fiscal quarter and for the period from the
beginning of the current fiscal year to the last day of the fiscal quarter,
subject to ordinary year-end adjustments, accompanied by a Compliance
Certificate with respect to the Financial Statements.
iii. Within thirty (30) days after the end of each fiscal year
of Guarantor (commencing with the fiscal year ending March 31, 1999, in the case
of financial projections, and commencing with the fiscal year ending March 31,
1999, in the case of financial budgets), financial projections for the
succeeding three (3) fiscal years and the financial budget for the next
succeeding fiscal year, accompanied by a certificate executed by a Responsible
Officer certifying that the projections and budget were prepared by Guarantor
based on assumptions that, in light of the historical performance of the
Companies and their prospects for the future, are reasonable as of the date
prepared.
iv. Promptly after receipt, a copy of each interim or special
audit report and management letter issued by Guarantor's Accountants with
respect to any Company or its financial records.
v. Notice, promptly after Guarantor knows or has reason to
know, of (i) the existence and status of any Litigation that, if determined
adversely to any Company, would be a Material Adverse Event, (ii) any change in
any material fact or circumstance represented or warranted by the Guarantor or
the Lessee in any Lease Document, (iii) the receipt by any Company of notice of
any violation or alleged violation of ERISA or any Environmental Law (which
individually or collectively with other violations or allegations could
constitute a Material Adverse Event), or (iv) a Default or Potential Default,
specifying the nature thereof and what action the Companies have taken, are
taking, or propose to take.
vi. Promptly after filing, copies of all material reports or
filings filed by or on behalf of the Guarantor or the Lessee with any Tribunal.
vii. Promptly upon reasonable request by Lessor information
(not otherwise required to be furnished under the Lease Documents) respecting
the business affairs, assets and liabilities of the Guarantor or the Lessee and
opinions, projections, certifications and documents in addition to those
mentioned in this Guaranty.
b BOOKS AND RECORDS. Guarantor will, and will cause the Lessee to
maintain books, records and accounts necessary to prepare financial statements
in accordance with GAAP.
c INSPECTIONS. Upon reasonable request and reasonable prior notice,
Guarantor will, and will cause Lessee to, allow Lessor (or its Representatives)
to inspect any of its properties, to review reports, files and other records and
to make and take away copies, to conduct tests or investigations, and to discuss
any of its affairs, conditions and finances with its other creditors, directors,
officers, employees or representatives from time to time, during reasonable
business hours.
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d TAXES. Guarantor will, and will cause Lessee to, promptly pay when
due any and all Taxes, other than Taxes which are being contested in good faith
by lawful proceedings diligently conducted, against which reserve or other
provision required by GAAP has been made, and in respect of which levy and
execution of any Lien have been and continue to be stayed.
e PAYMENT OF OBLIGATIONS. Guarantor will, and will cause Lessee to,
promptly pay (or renew and extend) all of its material obligations as they
become due (unless the obligations are being contested in good faith by
appropriate proceedings).
f EXPENSES. Guarantor shall promptly pay, or shall cause Lessee to,
within five (5) days following the receipt of an invoice therefor setting forth
the amount thereof (a) all costs, fees and expenses paid or incurred by Lessor
(or any limited partner of Lessor) in connection with the arrangement,
syndication and negotiation of the Facilities and the negotiation, preparation,
delivery and execution of (i) the Lease Documents and (ii) any related
amendment, waiver or consent (including in each case, without limitation, the
reasonable fees and expenses of Lessor's counsel but excluding, in the case of
amendments, waivers, and consents described in clause (ii) costs and expenses of
a limited partner of Lessor unless such amendments, waivers and consents are
requested by Guarantor or Lessee) and (b) all costs, fees and expenses of Lessor
(or any limited partner of Lessor, if a default has occurred and is continuing)
incurred by Lessor in connection with the enforcement of the obligations of the
Lessee arising under the Lease Documents or of the Guarantor arising hereunder
or the exercise of any Rights arising under this Guaranty or the Lease Documents
(including, but not limited to, reasonable attorneys' fees, expenses and costs
paid or incurred in connection with any workout or restructure and any action
taken in connection with any Debtor Relief Laws), all of which shall be a part
of the Liabilities and shall bear interest, if not paid upon demand, at the
Default Rate (as defined in the Credit Agreement) until repaid.
g MAINTENANCE OF EXISTENCE, ASSETS, AND BUSINESS. Except as otherwise
permitted by SECTION 8I., Guarantor will, and will cause Lessee to, (a) maintain
its corporate or limited liability company existence, as the case may be, and
good standing in its state of organization and its authority to transact
business in all other states where failure to maintain its authority to transact
business is a Material Adverse Event; (b) maintain all licenses, permits and
franchises necessary for its business where failure to do so is a Material
Adverse Event; (c) keep all of its assets that are useful in and necessary to
its business in good working order and condition (ordinary wear and tear
excepted) and make all necessary repairs and replacements.
h INSURANCE. Guarantor will, and will cause Lessee to, maintain with
financially sound, responsible and reputable insurance companies or associations
(or, as to workers' compensation or similar insurance, with an insurance fund or
by self-insurance authorized by the jurisdictions in which it operates)
insurance concerning its properties and businesses against casualties and
contingencies and of types and in amounts (and with co-insurance and
deductibles) as is customary in the case of similar businesses similarly
situated, which insurance may provide for reasonable deductibility from coverage
thereof, Guarantor shall, and shall cause Lessee to, deliver to Lessor
certificates of insurance for each policy of insurance and evidence of payment
of all premiums which certificates of insurance shall name Agent as an
additional insured, secured party, mortgagee and loss payee and which provide
Agent with at least thirty (30) days notice of cancellation or reduction in
coverage. If any insurance policy covered by an insurance certificate previously
delivered to Lessor is altered or canceled, then Guarantor shall cause to be
promptly delivered to Lessor a replacement certificate (in form and substance
satisfactory to Lessor).
i PRESERVATION AND PROTECTION OF RIGHTS. Guarantor will, and will cause
Lessee to, perform the acts and duly authorize, execute, acknowledge, deliver,
file and record any additional writings as Lessor may reasonably deem necessary
or appropriate to protect the Rights of Lessor under this Guaranty or any Lease
Document.
j ENVIRONMENTAL LAWS. Guarantor will, and will cause Lessee to, (a)
conduct its business so as to comply with all applicable Environmental Laws and
shall promptly take corrective action to remedy any non-compliance with any
Environmental Law, except where failure to comply or take action would not have
a monetary impact or cost to the Guarantor equal to or in excess of five percent
(5%) of the Guarantor's pre-tax income during the preceding Four Quarter Period,
or would otherwise be a Material Adverse Event, such amount in no event to
exceed $1,000,000, and (b) establish and maintain a management system designed
to ensure compliance with applicable Environmental Laws and minimize financial
and other risks to Guarantor and Lessee arising under applicable Environmental
Laws or as the result of environmentally related injuries to Persons or
property. Guarantor shall deliver reasonable evidence of compliance with the
foregoing covenant to Lessor within thirty (30) days after any request from
Lessor.
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k INDEMNIFICATION. GUARANTOR WILL INDEMNIFY, PROTECT AND HOLD LESSOR
AND ITS PARTNERS AND THEIR RESPECTIVE PARENTS, SUBSIDIARIES, REPRESENTATIVES,
SUCCESSORS AND ASSIGNS (INCLUDING ALL OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS)(COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY
AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS AND PROCEEDINGS AND ALL COSTS, EXPENSES (INCLUDING,
WITHOUT LIMITATION, ALL ATTORNEYS' FEES AND LEGAL EXPENSES WHETHER OR NOT SUIT
IS BROUGHT) AND DISBURSEMENTS OF ANY KIND OR NATURE (THE "INDEMNIFIED
LIABILITIES") THAT MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED
AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR ARISING OUT OF (A)
THE DIRECT OR INDIRECT RESULT OF THE VIOLATION BY ANY COMPANY OF ANY
ENVIRONMENTAL LAW, (B) ANY COMPANY'S GENERATION, MANUFACTURE, PRODUCTION,
STORAGE, RELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL OR PRESENCE IN
CONNECTION WITH ITS PROPERTIES OF A HAZARDOUS SUBSTANCE (INCLUDING, WITHOUT
LIMITATION, (I) ALL DAMAGES OF ANY USE, GENERATION, MANUFACTURE, PRODUCTION,
STORAGE, RELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL OR PRESENCE, OR (II)
THE COSTS OF ANY ENVIRONMENTAL INVESTIGATION, MONITORING, REPAIR, CLEANUP OR
DETOXIFICATION AND THE PREPARATION AND IMPLEMENTATION OF ANY CLOSURE, REMEDIAL
OR OTHER PLANS), OR (C) THE LEASE DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREIN. HOWEVER, ALTHOUGH EACH INDEMNIFIED PARTY HAS THE RIGHT TO
BE INDEMNIFIED UNDER THE LEASE DOCUMENTS FOR ITS OWN ORDINARY NEGLIGENCE, NO
INDEMNIFIED PARTY HAS THE RIGHT TO BE INDEMNIFIED UNDER THE LEASE DOCUMENTS FOR
ITS OWN FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE PROVISIONS OF AND
UNDERTAKINGS AND INDEMNIFICATION SET FORTH IN THIS PARAGRAPH SHALL SURVIVE THE
SATISFACTION AND PAYMENT OF THE LIABILITIES AND TERMINATION OF THIS GUARANTY.
GUARANTOR'S INDEMNITY OBLIGATION SHALL BE JOINT AND SEVERAL WITH ANY SIMILAR
SUCH INDEMNITY PROVIDED BY ANY AFFILIATE OF GUARANTOR TO LESSOR.
l FURTHER ASSURANCES. The Guarantor shall, and shall cause each
Guarantor to, do such further things and execute such additional documents
(including, without limitation, the perfection of security interest, in
after-acquired property) as are reasonably requested by Lessor.
m. CHANGE OF CONTROL. Guarantor shall promptly, but in any event within
five (5) Business Days, give written notice to Lessor and Agent upon obtaining
knowledge of the occurrence of a Change of Control.
8 NEGATIVE COVENANTS. So long as any Lease Document is in force and
effect, Guarantor covenants and agrees as follows:
a EMPLOYEE PLANS. Except where a Material Adverse Event would not
result, Guarantor may not and may not permit any Company to permit any of the
events or circumstances described in SECTION 6i. to exist or occur.
b DEBT AND DEBT INSTRUMENTS. Guarantor may not and may not permit
Lessee to create, incur or suffer to exist any Funded Debt, other than Permitted
Debt.
c LIENS. Guarantor may not and may not permit Lessee to (a) create,
incur or suffer or permit to be created or incurred or to exist any Lien upon
any of its assets other than Permitted Liens or (b) enter into or permit to
exist any arrangement or agreement that directly or indirectly prohibits
Guarantor or Lessee from creating or incurring any Lien on any of its assets,
other than the Lease Documents and leases that place a Lien prohibition on only
the leased property.
d TRANSACTIONS WITH AFFILIATES. Except as disclosed on the attached
SCHEDULE 6l., or on the most recently amended SCHEDULE 6l., (if the disclosures
are approved by Lessor), Guarantor may not and may not permit Lessee to enter
into any material transaction with any of its Affiliates (excluding other
Companies), other than transactions in the ordinary course of business and upon
fair and reasonable terms not materially less favorable than it could obtain or
could become entitled to in an arm's-length transaction with a Person that was
not its Affiliate. For purposes of this SECTION 8d., a transaction is "material"
if it requires Guarantor or Lessee to pay more than $1,000,000 during the term
of the agreement governing such transaction.
e COMPLIANCE WITH LAWS AND DOCUMENTS. Guarantor may not and may not
permit Lessee to (a) violate the provisions of any Laws applicable to it or of
any Material Agreement to which it is a party if that violation alone, or when
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aggregated with all other violations, would be a Material Adverse Event, (b)
violate the provisions of its charter or bylaws, or (c) repeal, replace or amend
any provision of its charter or bylaws if that action would be a Material
Adverse Event.
f LOANS, ADVANCES AND INVESTMENTS. Except for investments permitted by
SECTION 8g. or SECTION 8i., Guarantor may not and may not permit Lessee to make
any loan, advance, extension of credit or capital contribution to, make any
investment in, or purchase or commit to purchase any stock or other securities
or evidences of Debt of, or interests in, any other Person; provided, however,
that Guarantor or Lessee may make an advance to, investment in or purchase from
another Person if (1) (a) such action results in the acquisition of such Person
by Guarantor, (b) such action results in the Guarantor's direct or indirect
ownership of new stores, (c) the Person being acquired is in a line of business
which is substantially the same as or complimentary to the Guarantor's principal
line of business, and (d) immediately after giving effect to such acquisition,
the Guarantor shall be in compliance with all covenants under ARTICLE 9 and
shall not be in Default or Potential Default under this Guaranty; provided,
further, that if any acquisition is in excess of an aggregate cost to the
Guarantor of more than $5,000,000, the Guarantor shall provide to the Lessor
evidence of compliance with all covenants in this Guaranty prior to the
consummation of such acquisition, or (2) such action is for investments in Cash
Equivalents.
g DIVIDENDS AND DISTRIBUTIONS. Guarantor may not and may not permit
Lessee to declare, make or pay any Distribution other than Distributions
declared, made or paid by (a) Guarantor wholly in the form of its capital stock,
(b) Lessee to Guarantor, or (c) Guarantor on its planned issuance of $25,000,000
in convertible preferred shares; provided that such shares are issued at the
market rate for similar such securities, Guarantor may not and may not permit
Lessee to enter into or permit to exist any arrangement or agreement (other than
this Guaranty or the Credit Agreement) that prohibits it from paying dividends
or other distributions to its shareholders.
h SALE OF ASSETS. Guarantor may not and may not permit Lessee to sell,
assign, lease, transfer or otherwise dispose of any of its assets, other than
(a) sales of inventory in the ordinary course of business, (b) the sale,
discount or transfer of delinquent accounts receivable in the ordinary course of
business for purposes of collection, (c) occasional sales, leases or other
dispositions of immaterial assets for consideration not less than fair market
value, (d) sales, leases or other dispositions of assets that are obsolete or
have negligible fair market value, (e) sales of equipment for a fair and
adequate consideration (but if replacement equipment is necessary for the proper
operation of the business of the seller, the seller must promptly replace the
sold equipment), (f) sale and leasebacks of real property which do not in the
aggregate exceed forty percent (40%) of the Guarantor's capital expenditures in
the applicable fiscal year, (g) sale, lease or other disposition by Lessee of
its assets to the Guarantor (subject to the terms of the Lease Documents), or
(h) sales of assets having an aggregate fair market value not exceeding
$2,000,000 during any fiscal year of Guarantor and sold for a price which is
within a fair market value for such assets, or (i) as disclosed on the attached
Schedule 8.h.
i MERGERS AND DISSOLUTIONS. Guarantor may not and may not permit Lessee
to merge or consolidate with any other Person or liquidate, wind up or dissolve
(or suffer any liquidation or dissolution); provided, however, if after giving
effect thereto, no Default shall have occurred and be continuing (a) any Person
(other than Lessee) may merge into the Guarantor in a transaction in which the
Guarantor is the surviving corporation, (b) any Person other than the Guarantor
may merge into any Subsidiary of the Guarantor (other than Lessee) in a
transaction in which the surviving entity is such Subsidiary and (c) any
Subsidiary of the Guarantor (other than Lessee) may liquidate or dissolve so
long as the Guarantor determines in good faith that such liquidation or
dissolution is in the best interests of the Guarantor.
j ASSIGNMENT. Guarantor may not and may not permit Lessee to assign or
transfer any of its Rights, duties, or obligations under any of the Lease
Documents.
k FISCAL YEAR AND ACCOUNTING METHODS. Guarantor may not and may not
permit any Company to change its fiscal year or its method of accounting (other
than immaterial changes in methods or as required or permitted by GAAP).
l NEW BUSINESSES. Guarantor may not and may not permit Lessee to engage
in any business except the businesses in which they are presently engaged and
any other reasonably related business.
m GOVERNMENT REGULATIONS. Guarantor may not and may not permit Lessee
to conduct its business in a way that it becomes regulated under the Investment
Company Act of 1940, as amended, or the Public Utility Holding Company Act of
1935, as amended.
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n LEASES; SALE-LEASEBACKS. Except as otherwise provided herein the
Guarantor will not, and will not permit Lessee to, enter into any arrangement
whereby the Guarantor or Lessee shall sell or transfer property owned by the
Guarantor or Lessee and then or thereafter as Lessee rent or lease such property
(any such arrangement being herein referred to as a "sale-leaseback") other than
(i) a sale-leaseback solely with the Guarantor or a Wholly-Owned Subsidiary,
(ii) sale-leasebacks of equipment pursuant to an off-balance sheet transaction
with Fleet National Bank existing on the date hereof (and extensions and
renewals thereof), or (iii) a lease for temporary period, not in excess of three
(3) months, to permit the orderly relocation of operations carried on in or at a
facility subsequent to the sale thereof and prior to the surrender of possession
thereof, unless (x) such sale-leaseback transaction is completed within one
hundred eighty (180) days of the date of acquisition of the property involved,
and (y) such sale-leaseback is entered into in compliance with any applicable
limitations hereof and (z) at the time of consummation thereof and after giving
effect thereto no Default or Potential Default exists.
o SUBSIDIARIES. Permit any Person other than a Company to acquire,
directly or indirectly, beneficially or of record, shares representing more than
twenty percent (20%) of the aggregate ordinary voting power represented by the
issued and outstanding capital stock of any Subsidiary of the Guarantor.
9 FINANCIAL COVENANTS. So long as any Lease Document is on force and
effect, Guarantor covenants and agrees to comply with the following financial
covenants as calculated on the last day of each fiscal quarter period and
certified by Guarantor in the most recent Compliance Certificate delivered to
Lessor from time to time in accordance with the terms of this Guaranty:
===================================================================================================================================
Maximum Minimum EBITDAR less
Adjusted Debt/EBITDAR CAPEX to Interest Minimum Tangible
Expense plus Rental Payments Net Worth
===================================================================================================================================
At 12/31/98 Not greater than 5.30 to 1.0 Not less than .85 to 1.0 $70,000,000 at 12/31/98
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At 3/31/99 thru 06/30/99 Not greater than 5.30 to 1.0 Not less than .85 to 1.0 $70,000,000 at 3/31/99
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At 9/30/99 thru 12/31/99 Not greater than 4.70 to 1.0 Not less than .85 to 1.0 $70,000,000 at 9/30/99
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At 3/31/00 thru 12/31/00 Not greater than 4.25 to 1.0 Not less than 1.30 to 1.0 $80,000,000 at 3/31/00
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At 3/31/01 thru 12/31/01 Not greater than 3.85 to 1.0 Not less than 1.50 to 1.0 $92,600,000 at 3/31/01
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At 3/31/02 and thereafter Not greater than 3.55 to 1.0 Not less than 1.70 to 1.0 $110,000,000 at 3/31/02
-----------------------------------------------------------------------------------------------------------------------------------
Notwithstanding the foregoing covenants, upon receipt of the proceeds
from the issuance of at least $25,000,000 of equity or equity related securities
to the Guarantor, the following covenants shall apply:
==================================================================================================================================
Maximum Minimum EBITDAR less
Adjusted Debt/EBITDAR CAPEX to Interest Minimum Tangible
Expense plus Rental Payments Net Worth
==================================================================================================================================
At 12/31/98 Not greater than 4.60 to 1.0 Not less than 1.00 to 1.0 $95,000,000 at 12/31//98
----------------------------------------------------------------------------------------------------------------------------------
At 3/31/99 thru 06/30/99 Not greater than 4.60 to 1.0 Not less than 1.00 to 1.0 $95,000,000 at 3/31/99
----------------------------------------------------------------------------------------------------------------------------------
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At 9/30/99 thru 12/31/99 Not greater than 4.10 to 1.0 Not less than 1.00 to 1.0 $95,000,000 at 9/30/99
----------------------------------------------------------------------------------------------------------------------------------
At 3/31/00 thru 12/31/00 Not greater than 3.70 to 1.0 Not less than 1.40 to 1.0 $105,000,000 at 3/31/00
----------------------------------------------------------------------------------------------------------------------------------
At 3/31/01 thru 12/31/01 Not greater than 3.35 to 1.0 Not less than 1.70 to 1.0 $117,600,000 at 3/31/01
----------------------------------------------------------------------------------------------------------------------------------
At 3/31/02 and thereafter Not greater than 3.05 to 1.0 Not less than 1.90 to 1.0 $135,000,000 at 3/31/02
----------------------------------------------------------------------------------------------------------------------------------
10 DEFAULT. The term "DEFAULT" means the occurrence of any one or more
of the following events:
a LEASE DOCUMENTS. The failure of Lessee to pay any part of the
Liabilities within five (5) Business Days after it becomes due and payable under
the Lease Documents or the occurrence and continuation of a Default under any
Lease Document.
b COVENANTS. The failure of Guarantor (and, if applicable, Lessee) to
punctually and properly perform, observe and comply with:
i. Any covenant or agreement contained in SECTIONS 8g., 8h.,
8i., 8j., OR 8n.;
ii. Any covenant or agreement contained in SECTION 7a.(i) AND
(ii), 7b., 7c., 7g., 8a., 8b., 8f., 8k., 8l., 8m. OR 8o., and failure
continues for ten (10) days after the first to occur of (i) Guarantor
knows of or (ii) Guarantor receives notice from Lessor of, such
failure; or
iii. Any other covenant or agreement contained in any Lease
Document (other than the covenants to pay the Liabilities and the
covenants in CLAUSES (a) AND (b) preceding), and failure continues for
thirty (30) days after the first to occur of (i) Guarantor knows of or
(ii) Guarantor receives notice from Lessor of, such failure.
c DEBTOR RELIEF. Guarantor or Lessee (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 Lessor granted in the Lease Documents (unless, if the
proceeding is involuntary, the applicable petition is dismissed within sixty
(60) days after its filing).
d JUDGMENTS AND ATTACHMENTS. Guarantor or Lessee fails, within sixty
(60) days after entry, to pay, bond or otherwise discharge any judgment or order
for the payment of money in excess of $1,000,000 (individually or collectively)
or any warrant of attachment, sequestration or similar proceeding against any of
Guarantor's or Lessee's assets having a value (individually or collectively) of
$1,000,000, which is neither (a) stayed on appeal nor (b) diligently contested
in good faith by appropriate proceedings and adequate reserves have been set
aside on its books in accordance with GAAP.
e 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 or Lessee 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 or Lessee.
f MISREPRESENTATION. Any material representation or warranty made by
Guarantor or Lessee contained herein or in any Lease Document at any time proves
to have been materially incorrect when made.
g CHANGE OF CONTROL. A Change of Control occurs and the Guarantor's
obligations under the Senior Secured Credit Facility dated as of September 15,
1998 among Guarantor as Borrower, the lenders named therein and Chase as Agent
for the lenders, shall have been accelerated as a result of such Change of
Control.
h MATERIAL ADVERSE EVENT. A Material Adverse Event occurs.
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i DEFAULT UNDER OTHER AGREEMENTS. (a) Guarantor or Lessee fails to pay
when due (after lapse of any applicable grace period) any Debt in excess
(individually or collectively) of $1,000,000; (b) any default exists under any
agreement to which Guarantor or Lessee is a party, the effect of which is to
cause, or to permit any Person (other than a Company) to cause, an amount in
excess (individually or collectively) of $1,000,000 to become due and payable by
Guarantor or Lessee before its stated maturity; or (c) any Debt in excess
(individually or collectively) of $1,000,000 is declared to be due and payable
or required to be prepaid by Guarantor or Lessee before its stated maturity.
j VALIDITY AND ENFORCEABILITY OF LEASE DOCUMENTS. Except in accordance
with its terms or as otherwise expressly permitted by this Guaranty, any Lease
Document at any time after its execution and delivery ceases to be in full force
and effect in any material respect or is declared by a Tribunal to be null and
void or its validity or enforceability is contested in writing by Guarantor or
Lessee, or Lessee denies in writing that it has any further liability or
obligations under any Lease Document.
k EMPLOYEE BENEFIT PLANS. Any of the following exists with respect to
any Employee Plan of any Company: (a) a Reportable Event; (b) disqualification
or involuntary termination proceedings; (c) voluntary termination proceedings
are initiated while a funding deficiency (as determined under section 412 of the
Code) exists; (d) withdrawal liability exists with respect to a Multiemployer
Plan; (e) a trustee is appointed by any federal district court or the PBGC to
administer an Employee Plan; (f) termination proceedings are initiated by the
PBGC; (g) failure by any Company to promptly notify Lessor upon its receipt of
notice of any proceeding or other actions that may result in termination of an
Employee Plan if the proceeding or termination would constitute a Material
Adverse Event.
11 RIGHTS AND REMEDIES.
(a) Upon the occurrence and during the continuance of any
Default, the Lessor may without any notice to (except as expressly provided
herein or in any Lease Document) or demand upon Guarantor, which are expressly
waived by Guarantor (except as to notices expressly provided for herein or in
any Lease Document), proceed to protect, exercise and enforce the rights and
remedies of the Lessor against Guarantor hereunder or under the Lease Documents
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 Lease
Documents 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 Lessor's rights and
remedies and during the continuance of a Default are to be exercised shall be
determined by the Lessor in its sole discretion, and all payments received by
the Lessor shall be applied first to the costs and expenses (including
reasonable attorney's fees incurred by the Lessor) of the Lessor, then to the
payment of all accrued and unpaid amounts due under any Lease Documents 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 Lease Documents, or
prevent the exercise, or continued exercise, of rights or remedies of the Lessor
hereunder or thereunder or under any requirement of Law or in equity.
12 PAYMENTS. Each payment by the Guarantor to you under this Guaranty
shall be made by transferring the amount thereof in immediately available funds
without set-off or counterclaim.
13 COSTS, EXPENSES AND TAXES. The Guarantor agrees to pay on demand
(except to the extent paid by Lessee): (i) all reasonable out-of-pocket costs
and expenses of the Lessor in connection with the preparation, execution and
delivery of this Guaranty and the Lease Documents and the other documents to be
delivered hereunder, including the reasonable fees and out-of-pocket expenses of
counsel for the Lessor with respect thereto and with respect to advising the
Lessor as to its rights and responsibilities under this Guaranty and the Lease
Documents, and any modification, supplement or waiver of any of the terms of
this Guaranty or any Lease Document, (ii) all reasonable costs and expenses of
the Lessor hereunder and under the Lease Documents, including reasonable legal
fees and expenses, in connection with a default or the enforcement of this
Guaranty and the Lease Documents and (iii) reasonable costs and expenses
incurred in connection with third party professional services required by the
Lessor pursuant to the Lease Documents such as appraisers,
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environmental consultants, accountants or similar Persons; provided that except
during the continuance of any Default hereunder, the Lessor 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.
14 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
your rights or those of any subsequent assignee or transferee of any of the
Liabilities until all the Liabilities to you and every such subsequent assignee
or transferee shall have been paid in full. The provisions of this SECTION 14
shall survive the termination of this Guaranty and any satisfaction and
discharge of Lessee by virtue of any payment, court order, or law.
15 NO WAIVER; REMEDIES. No failure on the part of the Lessor to
exercise, and no delay in exercising, any right hereunder or under any Lease
Document 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.
16 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 Lease Documents and will bind and inure to the
benefit of the respective successors and assigns of the parties hereto, whether
so expressed or not.
17 CONFIDENTIALITY. The Lessor agrees 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 Lessor who are or are expected to become engaged in
evaluating, approving, structuring or administering the Lease Documents;
provided that nothing herein shall prevent the Lessor from disclosing such
information (a) pursuant to subpoena or upon the order of any court or
administrative agency, (b) upon the request or demand of any regulatory agency
or authority having jurisdiction over Lessor, (c) which has been publicly
disclosed, (d) to the extent reasonably required in connection with any
litigation to which the Lessor, the Guarantor or its respective Affiliates may
be a party, (e) to the extent reasonably required in connection with the
exercise of any remedy hereunder, (f) to Lessor's legal counsel and independent
auditors. The Lessor 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 17 and, if the Guarantor is a party to any such litigation, clause (e)
of this SECTION 17.
18 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.
19 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.
20 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;
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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.
21 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 XXX XXXXXXXX XXXXXX XX XXX XXXX, XXX XXXX 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 24, SUCH SERVICE TO BECOME EFFECTIVE
THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE LESSOR 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.
22 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.
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23 PARTIES. This Guaranty shall inure to the benefit of you and your
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 Lessor. You may assign your
rights and benefits under this Guaranty or the Lease Documents to any financial
institution providing financing to you in connection with the Lease Documents.
24 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 Muffler Brake, Inc.
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 Lessor:
Brazos Automotive Properties, L.P.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
telephone: (000) 000-0000
telecopy: (000) 000-0000
with a copy to
Xxxxxx X. Xxxxx, Xx.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000X
Xxxxxx, Xxxxx 00000
telephone: (000) 000-0000
telecopy: (000) 000-0000
and a copy to
Xxxxxx Financial, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
telephone: (000) 000-0000
telecopy: (000) 000-0000
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 24.
Other than the service of process set forth in SECTION 21(A) above, all
communications shall be effective three 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.
25 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 you, and the
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Guarantor shall not be released from any obligation or liability hereunder until
such full payment or discharge shall have occurred.
26 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 Lessor 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.
27 INDEMNITY.
(a) The Guarantor shall indemnify the Lessor 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 Lessee 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 Lease
Documents, 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 27(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 selected by
Guarantor shall in no way affect any rights of such Indemnified Person otherwise
arising under this SECTION 27(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) gross negligence or willful
misconduct of the Person to be indemnified or (ii) any Material default by
Lessor that is not cured within any applicable cure period, if any, under any of
the Lease Documents.
(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 Lease
Documents, the obligations of the Guarantor under this Section shall survive the
termination of this Guaranty and the Lease Documents and the payment of the
Liabilities.
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28. NEW GUARANTY.
(a In the event that (i) any Lease Document is rejected by a
trustee or debtor-in-possession in any bankruptcy or insolvency proceeding
involving the Lessee or (ii) any Lease Document is terminated as a result of any
bankruptcy or insolvency proceeding involving the Lessee and, if within sixty
(60) days after such rejection or termination, the Lessor or its designee shall
so request and shall certify in writing to the Lessee that it intends to perform
the obligations of the Lessor as and to the extent required under such Lease
Document, the Guarantor will, unless prohibited by bankruptcy or other
applicable law, execute and deliver to the Lessor or such designee, concurrently
with the delivery by Lessor or such designee of a new Lease Document that
contains the same conditions, agreements, terms, provisions and limitations as
such original Lease Document, 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 Lessee
and the Guarantor prior to such rejection or termination). References in this
Guaranty to such "LEASE DOCUMENT" shall be deemed also to refer to such new
Lease Document.
(b In the event that upon written request by the Lessor to the
Lessee given on or after any foreclosure, trustee sale or conveyance in lieu
thereof of a Property (as defined in the Lease Documents), the owner of the
Property, as landlord, and the Lessee, as tenant, execute a lease of the
Property containing all of the same terms, provisions, options and conditions as
are contained in the Lease Documents, which lease shall be for the unexpired
portion of the term of the Lease Documents, as to such Property, then upon
written request by Lessor to Guarantor relating to the execution by Lessee of a
new Ground Lease or Facilities Lease (as those terms are defined in the Lease
Documents), the Guarantor hereby agrees to execute a new Guaranty that shall
contain the same conditions, agreements, terms, provisions and limitations as
this Guaranty (except for any requirements which have been fulfilled by the
Lessee and the Guarantor prior to such rejection or termination) in form and
substance substantially equivalent to this Guaranty which shall relate to such
new lease.
29. CERTAIN AMENDMENTS TO THIS GUARANTY.
(a If at any time on or after the date hereof, (i) Guarantor
(either acting alone or together with any one or more Subsidiaries or
affiliates) enters into any loan or other credit agreement in replacement of or
substitution for the Credit Agreement (a "REPLACEMENT CREDIT AGREEMENT") and
(ii) Chase (A) is, or at any time, becomes, a party to such Replacement Credit
Agreement or (B) has, or at any time acquires, a participation in any of the
facilities governed thereby, then, upon written notice by Guarantor to Lessor,
Lessor agrees to enter into an amendment or an amendment and restatement of this
Guaranty so that, to the extent elected by Guarantor and Lessee, the provisions
hereof will be the same (to the extent permitted by accounting rules for
operating leases) as the provisions applicable to Guarantor and set forth in the
Replacement Credit Agreement or any guarantee agreement executed by Guarantor
pursuant thereto, such amendment or amendment and restatement of this Guaranty
to be effective on the earlier to occur of (x) the effective date of the
Replacement Credit Agreement (without regard to when such amendment or amendment
or restatement is actually executed), and (y) the acquisition of a participation
in such Replacement Credit Agreement by Chase, and Lessor hereby agrees to
cooperate fully with Guarantor in the preparation and execution of the
appropriate amendment or amendment and restatement, as the case may be, and all
other appropriate documentation, as Guarantor may request and at Guarantor's
expense to effect the foregoing; and
(b if at any time on or after the date hereof, (i) any waiver
of any provision under the Credit Agreement or any Replacement Credit Agreement,
which provision or the substantial equivalent thereof (the "CORRESPONDING
PROVISION") is also included in this Guaranty, is granted, and (ii) at such time
or at any time thereafter, Chase (A) is or becomes a party to the Credit
Agreement or any Replacement Credit Facility, or (B) has or acquires a
participation in any of the facilities governed by the Credit Agreement or any
Replacement Credit Agreement, as the case may be, then such Corresponding
Provision, ipso facto upon the granting of the waiver referred to in the
immediately foregoing CLAUSE (I) and without the necessity of any further action
of any kind by Guarantor or any other Person, shall be deemed, for all purposes,
to have been immediately thereupon waived by Lessor.
Sincerely yours,
MONRO MUFFLER BRAKE, INC.,
a New York corporation
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By: /s/ Xxxxxxxxx X'Xxxxx
-----------------------------------------------------
Xxxxxxxxx X'Xxxxx, Senior Vice President
and Chief Financial Officer
ACCEPTED AND AGREED as of the date first above written:
BRAZOS AUTOMOTIVE PROPERTIES, L.P.,
a Delaware limited partnership
By: BRAZOS AUTOMOTIVE PROPERTIES MANAGEMENT,
INC., a Delaware corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxxx, Executive Vice President
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EXHIBIT A TO GUARANTY
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ____________, __
To: Brazos Automotive Properties, L.P. and
The Chase Manhattan Bank, as Agent
Ladies and Gentlemen:
Reference is made to that certain Guaranty dated as of September *,
1998 (as amended or restated from time to time, with terms herein as therein
defined, the "GUARANTY") by Monro Muffler Brake, Inc., a New York corporation
(the "GUARANTOR") in favor of Brazos Automotive Properties, L.P., a Delaware
limited partnership (the "LESSOR").
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the __________________________ of Guarantor, and that, as
such, he/she is authorized to execute and deliver this Certificate to the Lessor
and Agent on behalf of Lessor, and that:
The financial covenant analysis and information set forth on SCHEDULE 1
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of_______________, ____.
MONRO MUFFLER BRAKE, INC.,
a New York corporation
By:__________________________________
Name:________________________________
Title:_______________________________
24
25
ANNEX I
FINANCIAL COVENANTS CALCULATION WORKSHEET
25
26
Date: _______________, __
For the Fiscal Quarter/Year
ended ___________, __
SCHEDULE 1
to the Compliance Certificate
($ in 000's)
(all calculations are for Guarantor and its Subsidiaries
on a consolidated basis)
26
27
SCHEDULE 6(a)
JURISDICTIONS OF INCORPORATION AND BUSINESS
-------------------------------------------
INCORPORATED
COMPANY OR ORGANIZED IN: DOES BUSINESS IN:
------- ---------------- -----------------
Monro Muffler Brake, Inc. NY CT
DE
District of Columbia*
IN
MA
MD
MI
NH
NJ
NY** ***
NC
OH
PA
RI
SC
VA
VT
WV
Monro Service Corporation DE NY** ***
Speedy Holding Corp. DE NY** ***
Monro Leasing, LLC DE NY** ***
----------------------------
* The Company is qualified to do business in the District of Columbia but does not
presently conduct business in that jurisdiction. The Company may choose to withdraw
its qualification in that jurisdiction at a future date.
** Indicates state in which principal place of business is located.
*** Indicates state in which chief executive office is located.
**** Speedy Holding Corp. will be merged into the Guarantor on or prior to the Closing
Date.
27
28
SCHEDULE 6(b)
CORPORATE STRUCTURE
-------------------
PARENT SUBSIDIARY % OWNERSHIP
------------------------------------------------------------------------------------------
Monro Muffler Brake, Inc. Monro Service Corporation 100%
Monro Leasing, LLC 100%
28
29
SCHEDULE 6(f)
LITIGATION
----------
[NONE]
29
30
SCHEDULE 6(h)
ENVIRONMENTAL MATTERS
[NONE]
30
31
SCHEDULE 6(j)
PERMITTED LIENS
---------------
1. Liens now or hereafter securing the Obligation.
2. Any Lien securing Debt permitted in ITEMS 3 OR 5 of SCHEDULE 6(n)
incurred for the purchase or capital lease of one or more fixed or
capital assets if such Lien encumbers only the assets so purchased or
leased.
3. Pledges or deposits made to secure payment of workers' compensation,
unemployment insurance, or other forms of governmental insurance or
benefits or to participate in any fund in connection with workers'
compensation, unemployment insurance, pensions, or other social
security programs.
4. Good-faith pledges or deposits made to secure performance of bids,
tenders, contracts (other than for the repayment of borrowed money), or
leases, or to secure statutory obligations, surety or appeal bonds, or
indemnity, performance, or other similar bonds in the ordinary course
of business.
5. The following, if (a) no amounts are due and payable and no Lien has
been filed (or agreed to), (b) (i) the validity or amount secured
thereby is being contested in good faith by lawful proceedings
diligently conducted, (ii) reserve or other provision required by GAAP
has been made, and (iii) levy and execution thereon have been (and
continue to be) stayed or payment thereof is covered in full (subject
to the customary deductible) by insurance, or (c) with respect to
CLAUSES a., b. AND c. below, such Liens secure amounts which, in the
aggregate, do not exceed $1,000,000 at any time, and neither the value
nor use of the property in the Company's business in question are
materially affected:
a. Liens for Taxes;
b. Liens upon property, including any attachment of property or
other legal process prior to adjudication of a dispute on the
merits; and
c. Liens imposed by operation of law (including, without
limitation, Liens of mechanics, materialmen, warehousemen,
carriers and landlords and similar Liens).
6. Any interest or title of a lessor in assets being leased to a Company.
7. Liens arising from UCC-1 financing statements in respect of leases
permitted under this Agreement.
8. Easements, zoning restrictions and rights-of-way on real property that
do not secure any obligations for borrowed money.
9. The Financing Statements listed on attached EXHIBIT A.
10. Liens in favor of Brazos Automotive Properties, L.P. ("Lessor")
securing obligations under the Guaranty dated as of September 15, 1998
of Borrower in favor of Lessor.
31
32
EXHIBIT A
---------
MONRO MUFFLER BRAKE, INC.
UCC FILINGS
------------------------------------------------------------------------------------------------------
STATE FILING DATE FILE NUMBER SECURED PARTY
------------------------------------------------------------------------------------------------------
New York 10/6/93 211239 Central Trust Company
------------------------------------------------------------------------------------------------------
New York 1/29/93 020976 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 3/30/93 066592 Chase Equipment Leasing, Inc.
------------------------------------------------------------------------------------------------------
New York 4/8/93 075797 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/9/93 076671 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/13/93 079233 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/12/94 070847 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 10/2/95 198583 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
Rhode Island 8/17/98 177075 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
Rhode Island 8/17/98 177080 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
Rhode Island 8/28/98 186037 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
Rhode Island 8/28/98 186043 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
New York 1/3/84 1559 Central Trust Company
------------------------------------------------------------------------------------------------------
New York 1/29/93 020976 The Chase Manhattan
------------------------------------------------------------------------------------------------------
New York 3/30/93 066592 Chase Equipment Leasing Inc.
------------------------------------------------------------------------------------------------------
New York 4/8/93 075797 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/9/93 076671 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/13/93 079233 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/12/94 070847 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 10/2/95 198583 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
Rhode Island 8/17/98 177075 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
Rhode Island 8/17/98 177080 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
Rhode Island 8/28/98 186037 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
32
33
------------------------------------------------------------------------------------------------------
Rhode Island 8/28/98 186043 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
New York 10/14/87 15670762 Chase Lincoln First Bank
------------------------------------------------------------------------------------------------------
New York 10/14/87 1567066 Chase Lincoln First Bank
------------------------------------------------------------------------------------------------------
New York 10/14/87 1567066 Chase Lincoln First Bank
------------------------------------------------------------------------------------------------------
New York 8/31/92 21150244 Chase Lincoln First Bank
------------------------------------------------------------------------------------------------------
New York 3/24/93 21771365 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 3/24/93 21771369 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 3/24/93 21771373 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 10/23/95 24790120 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 3/24/93 1002886 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/12/94 1053129 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 10/2/95 1648425 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 10/10/95 1653901 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 10/23/95 1653394 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 10/23/95 1653399 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 1/29/93 139360 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
New York 4/14/93 139360 The Chase Manhattan Bank
------------------------------------------------------------------------------------------------------
Rhode Island 8/21/98 518658 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
Rhode Island 8/21/98 518659 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
Rhode Island 8/21/98 518660 Fleet Capital Corporation
------------------------------------------------------------------------------------------------------
33
34
SCHEDULE 6(l)
TRANSACTIONS WITH AFFILIATES
----------------------------
Certain (a) principal shareholders/directors of the Guarantor, (b) partnerships
in which such persons have interests or (c) trusts of which members of their
facilities are beneficiaries are lessors of certain facilities to the Guarantor.
Payments under such operating and capital leases amounted to $1,786,000,
$1,828,000 and $1,688,000 for the years ended March 31, 1998, 1997 and 1996,
respectively. Amounts payable under these lease agreements totaled $82,000 and
$88,000, respectively, at March 31, 1998 and 1997.
No related party leases, other than renewals or modifications of leases on
existing stores, have been entered into since May 1989 and no new leases are
contemplated.
In June 1991, the Guarantor entered into a management agreement effective July
1, 1991, with Xxxxx X. Xxxxxxx Company Limited ("PJSC") pursuant to which PJSC
provides to the Guarantor strategic and financial advice relating to financing,
capital structure, mergers and acquisitions and offensive/defensive positioning
for a fee of $160,000 per year (plus reimbursement of out-of-pocket expenses).
Pursuant to such agreement, the Guarantor has agreed to indemnify PJSC against
certain liabilities. In addition, PJSC, from time to time, provides additional
investment banking services to the Guarantor for customary fees. The firm is
providing financial advisory services to the Guarantor in connection with the
acquisition of and financing for the Speedy Stores. Xxxxx X. Xxxxxxx, Chairman
of the Board and principal shareholder of the Guarantor, is Chairman of PJSC.
34
35
SCHEDULE 6(n)
PERMITTED DEBT
--------------
30. The Obligation under the Chase Credit Agreement.
31. Debt arising from endorsing negotiable instruments for collection in
the ordinary course of business.
32. Capital Leases.
33. Current liabilities incurred in the ordinary course of business.
34. Purchase money Debt limited to fixed or capital assets.
35. Trade payables that are for goods furnished or services rendered in the
ordinary course of business and that are payable in accordance with
customary trade terms.
36. Debt of the Guarantor issued after the Closing Date and made
subordinate to the Obligation in terms reasonably satisfactory to the
Agent; provided however, that at the time of and after giving effect to
the issuance thereof, no Default or Potential Default shall have
occurred and be continuing and the proceeds will be applied to the
Facilities to the extent required under SECTION 3.2.
37. Debt listed below:
-------------------------------------------------------------------------------------------------------
AMOUNT INTEREST
Q/3 % MATURITY
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 120 154,282 LIBOR+100BP Sep-98
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 124 154,733 LIBOR+100BP Sep-98
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 126 160,125 LIBOR+100BP Sep-98
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 137 229,547 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 140 200,380 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 143 273,797 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 146 246,116 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 160 531,563 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 162 278,593 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 164 287,969 LIBOR+100BP Feb-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 168 237,890 LIBOR+100BP Feb-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 168 240,906 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 172 243,375 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
35
36
-------------------------------------------------------------------------------------------------------
AMOUNT INTEREST
Q/3 % MATURITY
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 177 234,140 LIBOR+100BP Feb-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 179 251,582 LIBOR+100BP Feb-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 183 339,809 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 184 314,453 LIBOR+100BP Feb-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 185 318,047 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 186 221,250 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 190 253,969 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 191 198,125 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 192 285,313 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 193 313,031 XXXXXx000XX Xxx-00
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 205 310,500 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 207 352,547 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 210 323,438 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 212 371,053 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 216 316,080 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 226 404,297 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 229 388,125 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 230 462,808 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
CHASE MTG-STORE 236 323,438 LIBOR+100BP Sep-02
-------------------------------------------------------------------------------------------------------
TERM NOTE R XXXXXXXX 138,107 0 Mar-08
-------------------------------------------------------------------------------------------------------
D'XXXXXX TIRE 228,376 8.00 FIXED Feb-03
-------------------------------------------------------------------------------------------------------
MASS MUTUAL 1,833,334 10.55 FIXED Apr-99
-------------------------------------------------------------------------------------------------------
CITY OF ROCHESTER 660,000 0 Oct-14
-------------------------------------------------------------------------------------------------------
CHASE MTG HQ 2,557,312 LIBOR+100BP Sep-05
-------------------------------------------------------------------------------------------------------
CHASE TERM LOAN-HQ 486,281 LIBOR+100BP Sep-03
-------------------------------------------------------------------------------------------------------
36
37
SCHEDULE 8(h)
EXISTING SALE\LEASEBACK PROPERTIES
----------------------------------
Shop Address City County State Zip
---- ------- ---- ------ ----- ---
173 0000 X. Xxxxx Xxxx. Xxxxxxxxx Xxxxxxxxxxxx XX 00000
208 0000 Xxxxxxxx Xxxx XX Xxxxx Xxxxxxx Xxxxxxxxx XX 00000
214 0000 Xxxxx Xxxxxx Xxxx Xxxx XX 00000
238 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxx XX 00000
244 0000 Xxxxxxx Xxxx (Xxxxx 00) Xxxxxx Xxxx Xxxxxxxxx XX 00000
249 000 Xxxxx Xxxxxx Xxxxxxx Xxxxxx XX 00000
259 0000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000
108 0000 Xxxxxx Xxxx. Xxxxxxxxxxxx Xxxxxxxxx XX 00000
278 0000 Xxxxx Xxxx Xxxxxxxx Xxxx XX 00000
283 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000
107 000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
109 000 Xxxxxx Xxxxxx Xxxxxxx Xx. Xxxxxxxx XX 00000
112 000 0xx Xxxxxx/xxxxxx 00xx Xx. Xxxxxx Xxxxx Xxxxxx XX 00000
113 00000 Xxxxx Xxxxx 000 X. Xxxxxxxxx Xxxxxxxxxx XX 00000
114 000 Xxxxxx Xxxxxx Xxxxxxxxxx Xx. Xxxxxxxx XX 00000
116 00 Xxxxxxxxxx Xxxx. Xxxxxxxxxxx Xxxxxxx XX 00000
117 0000 Xxxxxxx Xxxxxxx, Xxxxx 00 Xxxxx Xxxxxxxxxxxx XX 00000
37
