EXHIBIT 10.15
FIRST AMENDMENT TO GROUND LEASE AGREEMENT
THIS FIRST AMENDMENT TO GROUND LEASE AGREEMENT (this "AMENDMENT")
effective as of March 19, 2003 (the "EFFECTIVE DATE"), is entered into among
MONRO LEASING, LLC, a Delaware limited liability company, (the "LESSEE") and
BRAZOS AUTOMOTIVE PROPERTIES, L.P., a Delaware limited partnership ("BRAZOS").
WHEREAS, Brazos and Lessee entered into that certain Ground Lease
Agreement dated as of September 15, 1998 (as amended, modified, restated, or
supplemented, the "GROUND LEASE");
WHEREAS, Lessee requested that the term of the lease be extended to
September 30, 2008; and
WHEREAS, Brazos agreed to such extension, 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
Ground Lease.
Section 2. Ground Lease Amendments.
(a) The following definitions in Section 1.1 are hereby deleted in
their entirety, and the following is substituted in place thereof:
"AGENT means JPMorgan Chase Bank, formerly known as The Chase
Manhattan Bank.
"BRAZOS PARTNERSHIP AGREEMENT means that certain First Amended
and Restated Limited Partnership Agreement of Brazos dated as of
September 15, 1998, as the same may have been amended, modified,
restated, or supplemented.
"CHASE CREDIT AGREEMENT means that certain Amended and
Restated Credit Agreement dated as of March 19, 2003 executed among
Guarantor, Agent, and the other financial institutions from time to
time party thereto, as the same may have been amended and in effect on
the date hereof.
"CLOSING DATE means September 15, 1998."
(b) The second sentence of Section 11.3(a) is hereby deleted in its
entirety, and the following is substituted in place thereof:
"Not later than July 1, 2003, Lessee shall give notice to
Brazos as to whether it will renew or not renew the lease."
(c) The second sentence of Section 11.3(b) is hereby deleted in its
entirety, and the following is substituted in place thereof:
First Amendment to Ground Lease Agreement-Page 1
"Not later than July 1, 2003, Lessee shall give notice to
Brazos of its election to either purchase or arrange for the sale of
all of the Property to a third party."
(d) Section 12.1 is hereby deleted in its entirety, and the following
is substituted in place thereof:
"Section 12.1 Uneconomic Facility. In addition to Lessee's
right to terminate under SECTION 11 hereof, if, at any time during its
Lease Term, in the good faith judgment of Lessee, any Property shall
have become uneconomic for continued use and occupancy by Lessee (such
Property hereinafter sometimes called an "UNECONOMIC PROPERTY"), then
Lessee shall deliver to Brazos and Assignee a written notice (an
"UNECONOMIC NOTICE") containing (i) notice of Lessee's intention to
terminate the Ground Lease as to such Uneconomic Property as of a Basic
Rent Payment Date specified in such notice, which Basic Rent Payment
Date shall be within sixty (60) days of such notice, and (ii) a
certificate of an officer of Lessee stating that Lessee has determined
that such Property has become uneconomic for continued use and
occupancy by Lessee; provided that Lessee may not deliver an Uneconomic
Notice to Brazos under the terms of this ARTICLE XII for one (1) or
more Properties, the aggregate Acquisition Costs of which exceed twenty
percent (20%) of the aggregate Acquisition Costs of all Properties
owned as of the Closing Date; and provided, further, that if at the end
of the Lease Term the aggregate Acquisition Costs of Properties for
which Lessee has given Brazos an Uneconomic Notice exceeds twenty
percent (20%) of the aggregate Acquisition Costs of all Properties
owned as of the Closing Date, Lessee shall not have the right to sell
any Property to a third party pursuant to SECTION 11.4. Lessee shall
terminate this Ground Lease with respect to such Uneconomic Property
and shall either purchase the Uneconomic Property for cash at its
Acquisition Cost on the Basic Rent Payment Date specified in such
notice or sell such Uneconomic Property on such date; provided, that if
the proceeds of the sale of the Uneconomic Property are less than the
Acquisition Cost of such Uneconomic Property, then in addition to the
purchase price Lessee shall pay to Brazos an amount equal to such
Acquisition Cost less the proceeds of such sale and, if such proceeds
of sale exceed the Acquisition Cost, Brazos will pay any excess to
Lessee."
Section 3. Conditions. This Amendment shall not be effective unless and
until:
(a) Brazos has received counterparts of this Amendment and such related
documentation as Brazos or its counsel shall determine in their reasonable
discretion, in form and substance satisfactory to Brazos, duly executed and
delivered by the Lessee and
(b) Brazos has received payment for the account of the Lessee of any
amounts then due under the Ground Lease.
Section 4. Miscellaneous.
(a) Representations and Warranties True; No Event of Default. By
execution and delivery of this Amendment, Lessee represents and warrants to
Brazos that, as of the date of this Amendment and after giving effect to this
Amendment, (a) the representations and warranties contained in ARTICLE II of the
Ground Lease are true and correct, and (b) no event has occurred and is
continuing which constitutes an Event of Default or would constitute a Potential
Default.
(b) Costs and Expenses. Lessee agrees to pay on demand all costs and
expenses incurred by Brazos in connection with the preparation, execution, and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder.
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(c) Further Assurances. Lessee agrees to execute, acknowledge and
deliver all such instruments Brazos may request for better assuring and
confirming unto Brazos all and singular the rights granted or intended to be
granted hereby or hereunder.
(d) Entire Understanding. This Amendment constitutes the entire
agreement between the parties with respect to the subject matter hereof and no
representations, warranties, promises, guarantees or agreements, oral or
written, express or implied, have been made by any party hereto with respect to
this Amendment except as specifically provided herein.
(e) Severability. In case one or more provisions of this Amendment
shall be invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining provisions
contained herein shall not be effected or impaired thereby.
(f) Counterparts. This Amendment maybe 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 constitute one and the same instrument.
(g) Governing Law. This Amendment shall be governed, and construed in
accordance with, the laws of the State in which the Facility is located and
applicable federal laws.
(h) Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(i) Reference to the Ground Lease and Effect on the Ground Lease. On
and after the date of this Amendment and after this Amendment becomes effective,
each reference in the Ground Lease to "this Ground Lease", "hereunder", "herein"
or words of like import shall mean and be a reference to the Ground Lease, as
affected and amended by this Amendment. In the event of any inconsistency
between the terms of the Ground Lease and this Amendment, the terms of this
Amendment shall control.
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First Amendment to Ground Lease Agreement-Page 3
EXECUTED as of the Effective Date.
MONRO LEASING, LLC, a Delaware limited
liability company
By: MONRO MUFFLER BRAKE, INC.,
its Sole Member
By: /s/ Catherine D'Amico
-----------------------------------
Catherine D'Amico,
Executive Vice President of
Finance, Chief Financial Officer,
and Treasurer
BRAZOS AUTOMOTIVE PROPERTIES, L.P.,
a Delaware limited partnership
By: BRAZOS AUTOMOTIVE PROPERTIES
MANAGEMENT, INC., a Delaware
corporation, General Partner
By: /s/ Gregory C. Greene
-----------------------------------
Gregory C. Greene, President
First Amendment to Ground Lease Agreement-Signature Page