1
Exhibit 10.01
FIRST AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") effective
as of May 31, 1999 (the "EFFECTIVE DATE"), is entered into among MONRO MUFFLER
BRAKE, INC., a New York corporation (the "BORROWER"), THE CHASE MANHATTAN BANK,
a New York banking corporation (the "AGENT", and together with the other banks
listed as "LENDERS" on the signature pages hereof, collectively the "LENDERS";
individually, a "LENDER").
WHEREAS, the Borrower, the Agent and The Chase Manhattan Bank; Fleet
Bank; Manufacturers and Traders Trust Company; KeyBank, NA; HSBC Bank USA f/k/a
Marine Midland Bank; State Street Bank & Trust Co.; National City Bank and
USTrust, as Lenders previously entered into that certain Credit Agreement dated
as of September 15, 1998 (as amended or modified, the "CREDIT Agreement"); and
WHEREAS, the Borrower has requested that certain changes be made to the
negative covenants, maximum adjusted debt and minimum tangible net worth under
the Credit Agreement, among other things; and
WHEREAS, the Agent and the Lenders have agreed to such modifications,
subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the undersigned parties agree as follows:
Section 1. DEFINED TERMS. All capitalized terms used in this Amendment
but not defined in this Amendment shall have the meanings set forth in the
Credit Agreement.
Section 2. CREDIT AGREEMENT AMENDMENT.
SECTION 9.8. Section 9.8 of the Credit Agreement is hereby modified and
amended to delete such Section 9.8 in its entirety, and insert in lieu thereof
the following:
"9.8 LOANS, ADVANCES AND INVESTMENTS. Except as permitted by
SECTION 9.9 or SECTION 9.11, Borrower may not and may not
permit any Company 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 Borrower or a Company 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 Borrower or such Company, (b) such action results in the
Borrower'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 Borrower's
principal line of business, and (d) immediately after giving
effect to such acquisition, the Companies shall be in
compliance with all covenants under ARTICLE 10 and shall not
be in Default or Potential Default under this Agreement, or
(2) such action is used to provide financial assistance to
third parties that may be purchasing or subleasing certain
facilities owned or leased by Borrower and the cumulative
principal amount of such financing is not greater than
$1,625,000 (provided that such third party loans shall be
assigned to Lenders and shall not exceed a term of three [3]
years); provided, further, that if any acquisition is in
excess of an aggregate cost to the Borrower or such Company of
more than $5,000,000, the Borrower shall provide to the
Lenders evidence of compliance with all covenants in this
Agreement prior to the consummation of such acquisition, or
(3) such action is for investments in Cash Equivalents."
Section 3. FINANCIAL COVENANTS. Section 10 of the Credit Agreement is
hereby modified and amended to delete the first table of such Section 10 in its
entirety, and insert in lieu thereof the following:
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Maximum Minimum
Adjusted Debt/EBITDAR EBITDAR less Minimum Tangible
CAPEX to Interest Net Worth
Expense plus Rental
Payments
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
At 3/31/99 thru 09/30/99 Not greater than 5.30 to 1.0 Not less than .85 to 1.0 $63,700,000 at 3/31/99
At 12/31/99 Not greater than 4.70 to 1.0 Not less than .85 to 1.0 $63,700,000 at 9/30/99
At 3/31/00 thru 12/31/00 Not greater than 4.25 to 1.0 Not less than 1.30 to 1.0 $73,700,000 at 3/31/00
At 3/31/01 thru 12/31/01 Not greater than 3.85 to 1.0 Not less than 1.50 to 1.0 $86,300,000 at 3/31/01
At 3/31/02 and thereafter Not greater than 3.55 to 1.0 Not less than 1.70 to 1.0 $103,700,000 at 3/31/02
Section 4. WAIVER. By their execution of this Amendment, the Lenders
hereby agree to waive any prior default resulting from the calculation of the
financial covenants contained in Section 10 of the Credit Agreement and
Borrower's noncompliance with any condition, agreement, covenant or
representation set forth in Section 9.8, to the extent no default would have
occurred or be continuing after giving effect to this Amendment.
Section 5. CONDITIONS. This Amendment shall not be effective unless and
until:
(a) The Agent has received counterparts of this Amendment and such
related documentation as any Lender or its counsel shall
determine in their reasonable discretion, in form and
substance satisfactory to the Agent, duly executed and
delivered by the Borrower, the Lenders, and the Agent, as
applicable;
(b) The Agent has received payment for the account of the Lenders
of any amounts then due under the Credit Agreement;
(c) The Agent has received a certificate from the Borrower dated
as of the Effective Date stating that (i) all representations
and warranties of the Borrower set forth in the Credit
Agreement, as amended hereby, each of the other Loan Papers,
and this Amendment are true and correct in all material
respects; and (ii) no Default has occurred and is continuing;
(d) The Agent has received certified resolutions of the Borrower
approving this Amendment and the other documents executed in
connection herewith;
(e) The Agent has received a certificate of the Borrower
certifying as of the Effective Date, the names and true
signatures of persons authorized to sign this Amendment on
behalf of the Borrower; and
(f) The Borrower agrees to pay each Lender a modification fee
equal to 6.25 basis points times the outstanding commitment of
such Lender.
Section 6. EFFECT.
(a) Except as otherwise expressly modified hereby, all terms and
provisions of the Loan Papers are hereby ratified and
confirmed and shall be and shall remain in full force and
effect, enforceable in accordance with their terms. In the
event of any inconsistency between the terms of the Credit
Agreement as hereby modified and any other Loan Paper, the
terms of the Credit Agreement, as amended hereby, shall
control and such other document shall be deemed to be amended
hereby to conform to the terms of the Credit Agreement as
amended hereby. All references in any Loan Paper to the Credit
Agreement shall henceforth be deemed to refer to the Credit
Agreement as amended hereby.
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(b) Notwithstanding anything to the contrary contained herein or
implied hereby or in any other Loan Paper or in any other
action or conduct undertaken by the Borrower, the Agent or any
Lender on or before the date hereof, the agreements, covenants
and provisions contained herein shall constitute the only
evidence of the Lenders' consent to modify the terms and
provisions of the Loan Papers in the manner set forth herein.
Accordingly, no express or implied consents to any further
modifications of the Loan Papers, whether any such
modifications involve any of the matters contained in this
Amendment or otherwise, shall be inferred or implied from the
Lenders' execution of this Amendment unless evidenced by an
express written agreement executed by the Lenders and the
Agent. Further, the Lenders' and the Agent's execution of this
Amendment shall not constitute a waiver (either express or
implied) of the requirement that any further modification of
the Loan Papers shall require the express written approval of
the Lenders and the Agent as provided in the Credit Agreement,
no such approval (either express or implied) having been given
as of the date hereof.
Section 7. DEFENSES. The Borrower, by its execution hereof, hereby
declares that it knows of no set-offs, counterclaims, defenses or other causes
of action against the Agent or the Lenders arising out of the Loan Papers or
otherwise.
Section 8. LOAN PAPER. This Amendment is one of the "LOAN PAPERS"
described in the Credit Agreement and, as such, is subject to the provisions of
Article 14 of the Credit Agreement.
Section 9. FURTHER ASSURANCES. The parties hereto shall execute such
other documents, to be filed of record or otherwise, and the Borrower shall take
such actions, as may be necessary or as may be reasonably required in the
opinion of the Agent, to effect the transactions contemplated hereby.
Section 10. REPRESENTATIONS AND WARRANTIES.
(a) The Borrower hereby represents and warrants to the Lenders
that (i) it possesses all requisite power and authority to
execute, deliver and comply with the terms of this Amendment
and to effect the transactions contemplated hereby, all of
which have been duly authorized and approved by all necessary
corporate action and for which no consent of any other person
is required, and agrees to furnish the Agent with evidence of
such authorization and approval upon request; and (ii) no
event has occurred since the effective date of the Credit
Agreement which, individually or in the aggregate, could cause
a Material Adverse Event to occur, and (iii) the liens of the
Security Documents are valid and subsisting and continue to
secure the obligations under the Loan Papers.
(b) The Borrower hereby reaffirms each of the representations,
warranties, covenants and agreements contained in the Loan
Papers with the same force and effect as if each were
separately stated herein and made as of the date hereof,
except to the extent such representations or warranties relate
solely to an earlier date.
Section 11. FEES AND EXPENSES. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Agent (including, without limitation,
reasonable legal fees and expenses) incurred in connection with the preparation,
negotiation and execution of this Amendment and the other documents executed in
connection herewith and to effect the transactions contemplated hereby.
Section 12. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
Section 13. BINDING EFFECT. This Amendment shall become effective when
it shall have been executed by the Borrower and the Agent, and when the Agent
shall have, as to each Lender, either received a
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counterpart hereof executed by such Lender or been notified by such Lender that
such Lender has executed it and it thereafter shall be binding upon and inure to
the benefit of the Borrower, the Agent, and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights or delegate its duties under this Amendment or any interest in
the Credit Agreement without the prior written consent of each Lender.
Section 14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EXECUTED as of the Effective Date.
BORROWER:
---------
MONRO MUFFLER BRAKE, INC., a New York corporation
By:
Xxxxxxxxx X'Xxxxx, Senior Vice President and
Chief Financial Officer
AGENT:
------
THE CHASE MANHATTAN BANK
By:
Xxxxxx X. Xxxxxxx, Vice President
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LENDERS:
--------
THE CHASE MANHATTAN BANK
By:
Xxxxxx X. Xxxxxxx, Vice President
FLEET BANK
By:
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
Name:
Title:
KEYBANK, NA
By:
Name:
Title:
HSBC BANK USA F/K/A MARINE MIDLAND BANK
By:
Name:
Title:
XXXXX XXXXXX XXXX & XXXXX, XX.
By:
Name:
Title:
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NATIONAL CITY BANK
By:
Name:
Title:
USTRUST
By:
Name:
Title:
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EXHIBIT "A"
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SCHEDULE 9.8
SUBJECT PROPERTIES
8
FIRST AMENDMENT AND MODIFICATION AGREEMENT
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OF RESIDUAL GUARANTY
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FIRST AMENDMENT AND MODIFICATION AGREEMENT
OF RESIDUAL GUARANTY
THIS FIRST AMENDMENT AND MODIFICATION AGREEMENT OF RESIDUAL GUARANTY,
(this "AMENDMENT") effective as of May 31, 1999 (the "EFFECTIVE DATE"), amends
and modifies the RESIDUAL GUARANTY dated as of September 15, 1998 (the
"GUARANTY") from MONRO MUFFLER BRAKE, INC., a New York corporation (the
"GUARANTOR") in favor of the lenders who are party to that certain Credit
Agreement dated effective as of September 15, 1998, by and among Brazos
Automotive Properties, L.P., a Delaware limited partnership, as the borrower
(the "BORROWER"), the several banks party thereto from time to time (the
"LENDERS"), and The Chase Manhattan Bank, as Agent for the Lenders (the
"AGENT").
WHEREAS, the Guarantor has requested that certain changes be made to
the negative covenants, maximum adjusted debt and minimum tangible net worth
provisions contained in the Guaranty, among other things; and
WHEREAS, the Lenders have agreed to such modifications, subject to the
terms and conditions hereof.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree to amend and modify the
Guaranty as follows:
Section 1. DEFINED TERMS. All capitalized terms used in this Amendment,
but not defined in this Amendment, shall have the meanings set forth in the
Guaranty.
Section 2. AMENDMENTS TO GUARANTY.
(a) Amendment to Section 8(f). Section 8(f) of the Guaranty is hereby
deleted in its entirety and the following is inserted in lieu thereof:
"f. LOANS, ADVANCES AND INVESTMENTS. Except as permitted by
SECTION 8G. or SECTION 8I., Guarantor may not and may not
permit any Company 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 any Company 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 such
Company (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 Company shall be in compliance with all
covenants under SECTION 9 and shall not be in Default or
Potential Default under this Guaranty, or (2) such action is
used to provide financial assistance to third parties that may
be purchasing or subleasing certain facilities owned or leased
by Guarantor and the cumulative principal amount of such
financing is not greater than $1,625,000 (provided that such
third party loans shall be assigned to Lenders and shall not
exceed a term of three [3] years); provided, further, that if
any acquisition is in excess of an aggregate cost to the
Guarantor or such Company of more than $5,000,000, the
Guarantor shall provide to the Lenders evidence of compliance
with all covenants in this Guaranty prior to the consummation
of such acquisition, or (3) such action is for investments in
Cash Equivalents."
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(b) Amendment to Section 9. Section 9 of the Guaranty is hereby
modified and amended to delete the first table of such Section 9 in its
entirety, and insert in lieu thereof the following table:
Maximum Minimum
Adjusted Debt/EBITDAR EBITDAR less Minimum Tangible
CAPEX to Interest Net Worth
Expense plus Rental
Payments
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
At 3/31/99 thru 09/30/99 Not greater than 5.30 to 1.0 Not less than .85 to 1.0 $63,700,000 at 3/31/99
At 12/31/99 Not greater than 4.70 to 1.0 Not less than .85 to 1.0 $63,700,000 at 9/30/99
At 3/31/00 thru 12/31/00 Not greater than 4.25 to 1.0 Not less than 1.30 to $73,700,000 at 3/31/00
At 3/31/01 thru 12/31/01 Not greater than 3.85 to 1.0 Not less than 1.50 to 1.0 $86,300,000 at 3/31/01
At 3/31/02 and thereafter Not greater than 3.55 to 1.0 Not less than 1.70 to 1.0 $103,700,000 at 3/31/02
Section 3. WAIVER. By their execution of this Amendment, the Lenders
hereby agree to waive any prior default resulting from the calculation of the
financial covenants contained in Section 9 of the Guaranty and Guarantor's
noncompliance with any condition, agreement, covenant or representation set
forth in Section 8(f), to the extent no default would have occurred or be
continuing after giving effect to this Amendment.
Section 4. CONDITIONS. This Amendment shall not be effective unless and
until:
(a) The Agent has received counterparts of this Amendment and such
related documentation as any Lender or its counsel shall determine in their
reasonable discretion, in form and substance satisfactory to the Agent, duly
executed and delivered by the Guarantor, the Agent and the Lenders, as
applicable;
(b) The Agent has received payment for the account of the Lenders of
any amounts then due under the Guaranty;
(c) The Agent has received a certificate from the Guarantor dated as of
the Effective Date stating that (i) all representations and warranties of the
Guarantor set forth in the Guaranty, as amended hereby, each of the other Credit
Documents, and this Amendment are true and correct in all material respects; and
(ii) no Default has occurred and is continuing;
(d) The Agent has received certified resolutions of the Guarantor
approving this Amendment and the other documents executed in connection
herewith; and
(e) The Agent has received a certificate of the Guarantor certifying as
of the Effective Date, the names and true signatures of persons authorized to
sign this Amendment on behalf of the Guarantor.
Section 5. EFFECT.
(a) Except as otherwise expressly modified hereby, all terms and
provisions of the Guaranty are hereby ratified and confirmed and shall be and
shall remain in full force and effect, enforceable in accordance with their
terms. In the event of any inconsistency between the terms of the Guaranty, as
hereby modified and any other Credit Documents, the terms of the Guaranty, as
amended hereby, shall control and such other document shall be deemed to be
amended hereby to conform to the terms of the Guaranty as amended hereby. All
references in any Credit Documents to the Guaranty shall henceforth be deemed to
refer to the Guaranty as amended hereby.
(b) Notwithstanding anything to the contrary contained herein or
implied hereby or in any other Credit Documents or in any other action or
conduct undertaken by the Guarantor, the Lenders or the Agent on or before the
date hereof, the agreements, covenants and provisions contained herein shall
constitute the only evidence of the Lenders' consent to modify the terms and
provisions of the Credit Documents in the manner set
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forth herein. Accordingly, no express or implied consents to any further
modifications of the Credit Documents, whether any such modifications involve
any of the matters contained in this Amendment or otherwise, shall be inferred
or implied from the Lenders' execution of this Amendment unless evidenced by an
express written agreement executed by the Agent and the Lenders.
Section 6. DEFENSES. The Guarantor, by its execution hereof, hereby
declares that it knows of no set-offs, counterclaims, defenses or other causes
of action against the Agent or the Lenders arising out of the Credit Documents
or otherwise.
Section 7. CREDIT DOCUMENT. This Amendment is one of the "CREDIT
DOCUMENTS" described in the Guaranty and, as such, is subject to any provisions
of the Guaranty which govern the Credit Documents.
Section 8. FURTHER ASSURANCES. The parties hereto shall execute such
other documents, to be filed of record or otherwise, and the Guarantor shall
take such actions, as may be necessary or as may be reasonably required in the
opinion of the Agent, to effect the transactions contemplated hereby.
Section 9. REAFFIRMATION. Except as modified or amended herein, all
terms and provisions of the Guaranty not altered by this Amendment remain in
full force and effect.
Section 10. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants that it possesses all requisite power and authority to
execute, deliver, and comply with the terms of this Amendment and to effect the
transactions contemplated hereby, all of which have been duly authorized and
approved by all necessary corporate action and for which no consent of any other
person is required except as set out in the Guaranty.
Section 11. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts by the different parties hereto in separate
counterparts, each of which so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same Amendment.
Section 12. BINDING EFFECT. This Amendment shall become effective when
it shall have been executed by the parties required by the Guaranty, or their
respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed to be effective as of the Effective Date.
GUARANTOR
---------
MONRO MUFFLER BRAKE, INC.,
a New York corporation
By:
Xxxxxxxxx X'Xxxxx,
Senior Vice President and
Chief Financial Officer
AGENT:
------
THE CHASE MANHATTAN BANK
By:
Xxxxxx X. Xxxxxxx, Vice President
BANKS:
------
THE CHASE MANHATTAN BANK
By:
Xxxxxx X. Xxxxxxx, Vice President
FLEET BANK
By:
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
Name:
Title:
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KEYBANK, NA
By:
Name:
Title:
MARINE MIDLAND BANK
By:
Name:
Title:
STATE STREET BANK & TRUST CO.
By:
Name:
Title:
NATIONAL CITY BANK
By:
Name:
Title:
USTRUST
By:
Name:
Title:
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FIRST AMENDMENT AND MODIFICATION AGREEMENT
------------------------------------------
OF GUARANTY
-----------
This First Amendment and Modification Agreement of Guaranty , (this
"AMENDMENT") effective as of May 31, 1999 (the "EFFECTIVE DATE"), amends and
modifies the GUARANTY dated as of September 15, 1998 (the "Guaranty") from MONRO
MUFFLER BRAKE, INC., a New York corporation (the "GUARANTOR") in favor of BRAZOS
AUTOMOTIVE PROPERTIES, L.P., a Delaware limited partnership (the "LESSOR"),
which leases properties acquired by Lessor to Monro Leasing, LLC, a Delaware
limited liability company (the "LESSEE").
WHEREAS, the Guarantor has requested that certain changes be made to
the negative covenants, maximum adjusted debt and minimum tangible net worth
provisions contained in the Guaranty, among other things; and
WHEREAS, the Lessor has agreed to such modifications, subject to the
terms and conditions hereof.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree to amend and modify the
Guaranty as follows:
Section 1. DEFINED TERMS. All capitalized terms used in this Amendment,
but not defined in this Amendment, shall have the meanings set forth in the
Guaranty.
Section 2. AMENDMENTS TO GUARANTY.
(a) Amendment to Section 8(f). Section 8(f) of the Guaranty is hereby
deleted in its entirety and the following is inserted in lieu thereof:
"f. LOANS, ADVANCES AND INVESTMENTS. Except as permitted by
SECTION 8G. or SECTION 8I., Guarantor may not and may not
permit any 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 a 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 SECTION 9 and shall not be in Default or
Potential Default under this Guaranty, or (2) such action is
used to provide financial assistance to third parties that may
be purchasing or subleasing certain facilities owned or leased
by Guarantor and the cumulative principal amount of such
financing is not greater than $1,625,000 (provided that such
third party loans shall be assigned to Lessor and shall not
exceed a term of three [3] years); 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 (3) such action is for investments in Cash Equivalents."
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(b) Amendment to Section 9. Section 9 of the Guaranty is hereby
modified and amended to delete the first table of such Section 9 in its
entirety, and insert in lieu thereof the following table:
Maximum Minimum
Adjusted Debt/EBITDAR EBITDAR less Minimum Tangible
CAPEX to Interest Net Worth
Expense plus Rental
Payments
At 12/31/98 Not greater than 5.30 to 1.0 Not less than .85 to 1.0 $70,000,000 at 12/31/99
At 3/31/99 thru 09/30/99 Not greater than 5.30 to 1.0 Not less than .85 to 1.0 $63,700,000 at 3/31/99
At 12/31/99 Not greater than 4.70 to 1.0 Not less than .85 to 1.0 $63,700,000 at 9/30/99
At 3/31/00 thru 12/31/00 Not greater than 4.25 to 1.0 Not less than 1.30 to 1.0 $73,700,000 at 3/31/00
At 3/31/01 thru 12/31/01 Not greater than 3.85 to 1.0 Not less than 1.50 to 1.0 $86,300,000 at 3/31/01
At 3/31/02 and thereafter Not greater than 3.55 to 1.0 Not less than 1.70 to 1.0 $103,700,000 at 3/31/02
Section 3. WAIVER. By its execution of this Amendment, the Lessor
hereby agrees to waive any prior default resulting from the calculation of the
financial covenants contained in Section 9 of the Guaranty and Guarantor's
noncompliance with any condition, agreement, covenant or representation set
forth in Section 8(f), to the extent no default would have occurred or be
continuing after giving effect to this Amendment.
Section 4. CONDITIONS. This Amendment shall not be effective unless and
until:
(a) The Lessor has received counterparts of this Amendment and such
related documentation as Lessor or its counsel shall determine in its reasonable
discretion, in form and substance satisfactory to the Lessor, duly executed and
delivered by the Guarantor and the Lessor, as applicable;
(b) The Lessor has received payment of any amounts then due under the
Guaranty;
(c) The Lessor has received a certificate from the Guarantor dated as
of the Effective Date stating that (i) all representations and warranties of the
Guarantor set forth in the Guaranty, as amended hereby, each of the other Lease
Documents and this Amendment are true and correct in all material respects; and
(ii) no Default has occurred and is continuing;
(d) The Lessor has received certified resolutions of the Guarantor
approving this Amendment and the other documents executed in connection
herewith; and
(e) The Lessor has received a certificate of the Guarantor certifying
as of the Effective Date, the names and true signatures of persons authorized to
sign this Amendment on behalf of the Guarantor.
Section 5. EFFECT.
(a) Except as otherwise expressly modified hereby, all terms and
provisions of the Guaranty are hereby ratified and confirmed and shall be and
shall remain in full force and effect, enforceable in accordance with their
terms. In the event of any inconsistency between the terms of the Guaranty, as
hereby modified and any other Lease Documents, the terms of the Guaranty, as
amended hereby, shall control and such other document shall be deemed to be
amended hereby to conform to the terms of the Guaranty as amended hereby. All
references in any Lease Documents to the Guaranty shall henceforth be deemed to
refer to the Guaranty as amended hereby.
(b) Notwithstanding anything to the contrary contained herein or
implied hereby or in any other Lease Documents or in any other action or conduct
undertaken by the Guarantor, the Lessor or any Lessee on or before the date
hereof, the agreements, covenants and provisions contained herein shall
constitute the only evidence of the Lessor's consent to modify the terms and
provisions of the Lease Documents in the manner set
15
forth herein. Accordingly, no express or implied consents to any further
modifications of the Lease Documents, whether any such modifications involve any
of the matters contained in this Amendment or otherwise, shall be inferred or
implied from the Lessor's execution of this Amendment unless evidenced by an
express written agreement executed by the Lessor.
Section 6. DEFENSES. The Guarantor, by its execution hereof, hereby
declares that it knows of no set-offs, counterclaims, defenses or other causes
of action against the Lessor or the Lessee arising out of the Lease Documents or
otherwise.
Section 7. LEASE DOCUMENT. This Amendment is one of the "LEASE
DOCUMENTS" described in the Guaranty and, as such, is subject to any provisions
of the Guaranty which govern the Lease Documents.
Section 8. FURTHER ASSURANCES. The parties hereto shall execute such
other documents, to be filed of record or otherwise, and the Guarantor shall
take such actions, as may be necessary or as may be reasonably required in the
opinion of the Lessor, to effect the transactions contemplated hereby.
Section 9. REAFFIRMATION. Except as modified or amended herein, all
terms and provisions of the Guaranty not altered by this Amendment remain in
full force and effect.
Section 10. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants that it possesses all requisite power and authority to
execute, deliver, and comply with the terms of this Amendment and to effect the
transactions contemplated hereby, all of which have been duly authorized and
approved by all necessary corporate action and for which no consent of any other
person is required except as set out in the Guaranty.
Section 11. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts by the different parties hereto in separate
counterparts, each of which so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same Amendment.
Section 12. BINDING EFFECT. This Amendment shall become effective when
it shall have been executed by the parties required by the Guaranty, or their
respective successors and assigns.
16
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed to be effective as of the Effective Date.
GUARANTOR
---------
MONRO MUFFLER BRAKE, INC.,
a New York corporation
By:
Xxxxxxxxx X'Xxxxx,
Senior Vice President and Chief Financial Officer
LESSOR
------
BRAZOS AUTOMOTIVE PROPERTIES, L.P.,
a Delaware limited partnership
By:
BRAZOS AUTOMOTIVE PROPERTIES MANAGEMENT, INC.,
a Delaware corporation, its General Partner
By:
Xxxxxxx X. Xxxxxx, President
The undersigned Banks join in this Amendment to indicate their consent
to this Amendment, pursuant to Section 4.4 of the Consent and Agreement dated as
of September 15, 1998.
AGENT:
------
THE CHASE MANHATTAN BANK
By:
Xxxxxx X. Xxxxxxx, Vice President
BANKS:
------
THE CHASE MANHATTAN BANK
By:
Xxxxxx X. Xxxxxxx, Vice President
17
FLEET BANK
By:
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
Name:
Title:
KEYBANK, NA
By:
Name:
Title:
MARINE MIDLAND BANK
By:
Name:
Title:
STATE STREET BANK & TRUST CO.
By:
Name:
Title:
NATIONAL CITY BANK
By:
Name:
Title:
USTRUST
By:
Name:
Title:
