FIRST AMENDMENT TO GUARANTY October 17, 2002
Exhibit 99.9
FIRST AMENDMENT TO GUARANTY
October 17, 2002
Capital Automotive REIT
Capital Automotive L.P.
0000 Xxxxxx Xxxx Xxxx
Xxxxx 000
XxXxxx, XX 00000
| Re: First Amendment (“First Amendment”) to the Guaranty Agreement dated as of March 29, 2002, executed and delivered by Capital Automotive REIT (“Guarantor”) (as amended, the “Guaranty”), under and in connection with the Capital Automotive L.P. Revolving Credit and Term Loan Agreement dated as of March 29, 2002, by and among the financial institutions from time to time signatory thereto (each a “Lender”, and collectively the “Lenders”), Comerica Bank, as Agent for the Lenders (in such capacity, “Agent”), Capital Automotive L.P. (“Company”) and the Co-Borrowers from time to time signatory thereto (collectively with the Company, the “Borrowers”), as amended by that certain First Amendment to Credit Agreement dated as of May 1, 2002 (as amended, the “Credit Agreement”) |
Ladies and Gentlemen:
Reference is made to the Guaranty. Except as specifically defined to the contrary herein, capitalized terms used in this First Amendment shall have the meanings given them in the Guaranty.
Based upon the Agent’s receipt of the approval of the requisite Lenders (in the form attached to this First Amendment) and subject to the terms and conditions set forth in this First Amendment, the Agent hereby confirms the agreement by the requisite Lenders to amend and restate Section 5.11 of the Guaranty as follows:
“5.11 Maintain Total Liabilities to Consolidated Tangible Net Worth. Maintain as of the end of each fiscal quarter ending on or after the Effective Date, a ratio of Total Liabilities as of such date to Consolidated Tangible Net Worth as of such date of not more than the following amounts for the periods specified below:
| Fiscal Quarters Ending | Ratio | |
|
|
||
| September 30, 2002 | 2.25 to 1.00 | |
| December 31, 2002 | ||
| March 31, 2003 | ||
|
|
||
| June 30, 2003 and each fiscal quarter thereafter | 2.00 to 1.00 | |
|
|
Except as set forth above, this First Amendment shall not be deemed to amend or alter in any respect the terms and conditions of the Guaranty, the Credit Agreement, the Notes or any other Loan Document and shall not be deemed to be a waiver of or consent to any other matter.
1
By signing and returning a counterpart of this First Amendment to the Agent, the Guarantor, the Company and the Co-Borrowers acknowledge their acceptance of the terms of this First Amendment. This First Amendment shall not become effective unless and until countersigned by the Guarantor, the Company and the Co-Borrowers, and returned to the Agent. Upon receipt of the requisite signatures and satisfaction of the terms and conditions set forth herein, this First Amendment shall be deemed to be effective as of September 30, 2002.
| Very truly yours, |
| COMERICA BANK, as Agent |
| By: /s/ Xxxxx X. Xxxxxxx |
| Its: Vice President |
ACKNOWLEDGMENTS
| Acknowledged and agreed: | GUARANTOR: | |
|
CAPITAL AUTOMOTIVE REIT, a Maryland real estate trust |
||
|
By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
||
| BORROWERS: | ||
| CAPITAL AUTOMOTIVE L.P. | ||
|
By: Capital Automotive REIT Its: General Partner |
||
|
By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
||
|
CAR CMX 2 L.L.C., a Delaware limited liability company |
||
|
By: Capital Automotive L.P., its managing member |
||
|
By: Capital Automotive REIT, its general partner |
2
| By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
| CAR FER L.P., a Delaware limited partnership |
| BY: CAR MOM INC., its general partner |
| By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
3
| CAR HDV L.L.C., a Delaware limited liability company |
| By: Capital Automotive L.P., its managing member |
| By: Capital Automotive REIT, its general partner |
| By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
| CAR MAG L.L.C., a Delaware limited liability company |
| By: Capital Automotive L.P., its managing member |
| By: Capital Automotive REIT, its general partner |
| By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
| CAR 1 MOM L.P., a Delaware limited partnership |
| BY: CAR MOM INC., it general partner |
| By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
| CAR 2 MOM L.P., a Delaware limited partnership |
| BY: CAR MOM INC., its general partner |
| By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
4
| CAR PAR L.P., a Delaware limited partnership |
| BY: CAR MOM INC., its general partner |
| By: /s/ Xxxxx X. Xxxxx |
| Its: Senior Vice President and Treasurer |
| CAR SON CALA L.L.C., a Delaware limited liability company |
| By: Capital Automotive L.P., its managing member |
| By: Capital Automotive REIT, its general partner |
| By: /s/ Xxxxx X. Xxxxx |
| Its: Senior Vice President and Treasurer |
| CAR SON XXXX X.X., a Delaware limited partnership |
| BY: CAR MOM INC., its general partner |
| By: /s/ Xxxxx X. Xxxxx Its: Senior Vice President and Treasurer |
Dated as of October 17, 2002
5
Approval of First Amendment and Authorization
The undersigned Lender hereby confirms its approval of the attached First Amendment on the terms and conditions set forth therein and its authorization to the Agent to issue the First Amendment to the Guarantor, the Company and the Co-Borrowers.
| Comerica Bank |
| By: /s/ Xxxxx X. Xxxxxxx Vice President |
| Date: October 17, 2002 |
| Bank One, N.A. |
| By: /s/ Xxxxx X. Xxxxxx |
| Date: October 18, 2002 |
| Bank of America, N.A. |
| By: /s/ Xxx Xxxxxxx |
| Date: October 17, 2002 |
| Toyota Financial Services |
| By: /s/ Xxxx Xxxxxx |
| Corporate Dealer Relations |
| Date: October 17, 2002 |
6
