EXHIBIT 10.16
AMENDED AND RESTATED GUARANTY
(this "GUARANTY")
As of March 19, 2003
Brazos Automotive Properties, L.P. (the "LESSOR")
2911 Turtle Creek Blvd., Suite 1240
Dallas, Texas 75219
Attention: Mr. Gregory C. Greene
Re: Agreement for Ground Lease, Ground Lease Agreement (as
amended, restated, modified, or supplemented, the "GROUND
LEASE"), Agreement for Facilities Lease and Facilities Lease
Agreement (as amended, restated, modified, or supplemented,
the "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
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 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 that
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
Amended and Restated Guaranty - Page 1
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 (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.
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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 Banks.
ACQUISITION means the acquisition or purchase of assets by Guarantor
(whether in one or more separate transactions contemplated as part of the same
transaction); of assets, including without limitation, stock, partnership,
securities, or other interest in any other Person; excluding however, assets
purchased in the ordinary course of business which are budgeted as part of the
Guarantor's annual capital expenditure budget.
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 JPMorgan Chase, a national banking association, and its
successor or successors as administrative agent for Lenders under the Credit
Agreement.
ARRANGER means JPMorgan Chase, as Arranger and book manager under the
Credit Agreement.
BRAZOS FACILITY means the facility provided pursuant to the Facilities
Lease and the Ground Lease.
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 SECTIONS 8n or 8o minus (without duplication) any
capital expenditures incurred for equipment purchased and then sold within one
year of acquisition to Citizens Bank of Massachusetts pursuant to the
sale/leaseback facility described and permitted pursuant to SECTION 8o minus the
properties purchased by Guarantor from the Brazos Facility on the Effective
Date.
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 Moody's 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
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the Guarantor as of December 31, 2002, the aggregate actual purchase price of
which shall not exceed $100,000 at any time.
CHANGE OF CONTROL shall mean the occurrence of one or more of the
following: (a) 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 thirty-five percent (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 (b) the
occupancy of a majority of the seats (other than vacant seats) on the board of
directors of Guarantor or any Subsidiary of the 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.
CLOSING DATE means September 15, 1998.
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.
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 Amended and Restated 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.
CREDIT DOCUMENTS is defined in the Agreement.
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;
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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.
EFFECTIVE DATE means March 19, 2003.
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.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and related rules and regulations.
FACILITIES means the credit facilities set forth in the Credit
Agreement.
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) except as stated in Section 1.3 of the
Credit Agreement, 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.
FOUR QUARTER PERIOD means a period of four full consecutive fiscal
quarter-annual periods, taken together as one accounting period.
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
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Leases; excluding notes generated in the ordinary course of business payable
within one year not to exceed $1,000,000 and trade payables and accrued
expenses.
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 to which Guarantor's Accountants concur).
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.
JPMORGAN means JPMorgan Chase, formerly known as The Chase Manhattan
Bank.
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 Obligation (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.
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
$2,000,000 during any 12-month period.
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MINIMUM TANGIBLE NET WORTH means a minimum Tangible Net Worth of
$115,000,000 on the Effective Date which minimum Tangible Net Worth shall
increase by the greater of $8,500,000 or 75% of Net Income on each succeeding
December 31 thereafter.
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); provided however, certain
costs that in the past were capitalized in the cost of an acquisition, but will
be required to be expensed under Statement of Financial Accounting Standards
146, as well as other similar accounting requirements that are issued in the
future and require expense treatment of costs that are currently capitalized in
the cost of an acquisition, shall be included as if capitalized under prior
accounting guidelines.
OBLIGATION has the meaning set forth in paragraph 1 hereof.
OWNERSHIP GROUP means Peter J. Solomon and Donald Glickman 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 Moody's Investors Service, Inc., or carry an equivalent rating
by a
Amended and Restated Guaranty - Page 7
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 of any lease to its landlords
during such period; (a) excluding, however (i) rentals under Capitalized Leases,
including, without limitation, leases for equipment, (ii) maintenance, repairs,
taxes and other similar charges included in such payments, (iii) amounts
constituting step rent in accordance with GAAP, and (iv) (without duplication)
rentals under equipment leases whether operating leases or Capitalized Leases,
and (b) less (x) rental income and (y) amortization of deferred gains on
sale-leasebacks, such amortization not to exceed $1,000,000 for purposes hereto.
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, treasurer, 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, 2002, 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 (i) Minority
Interests, less all assets which are not Tangible Assets, (ii) the effect, if
any, of the Guarantor's interest rate hedging agreements, as determined by the
Accountants; and (iii) commencing on December 31, 1999, the effect of any
repurchase by the Guarantor of stock of the Guarantor, and (iv) intangible
assets acquired after January 31, 2003.
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.
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WHOLLY-OWNED SUBSIDIARY means a Subsidiary owned 100% by Guarantor.
6. Representations, Warranties and Agreements of Guarantor. The
Guarantor represents and warrants to Lessor as follows:
a. Corporate Existence, Good Standing, Authority and Compliance. Each
Company 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 Company (a) is duly
qualified to transact business and is in good standing as a foreign corporation
or other entity in each jurisdiction where the nature and extent of its business
and properties require due qualification and good standing (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. The fiscal year
of each Company ends on the last Saturday in March.
Amended and Restated Guaranty - Page 9
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 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. Location; Real Estate Interests. Each Company's chief executive
office is located at the address on the attached SCHEDULE 6k or on the most
recently amended SCHEDULE 6k. Each Company's books and records concerning
accounts and accounts receivable are located at its chief executive office, and
all of its inventory (other than inventory on consignment, in transit or in the
possession of a subcontractor of any Company) is in its possession and, together
with the Company's other material assets, are located, until sold in the
ordinary course of business, at one or more of the locations on the attached
SCHEDULE 6k or on the most recently amended SCHEDULE 6k. Except as described on
the attached SCHEDULE 6k, or on the most recently amended SCHEDULE 6K, no
Company has any ownership, leasehold, or other interest in real estate.
Amended and Restated Guaranty - Page 10
l. 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.
m. Transactions with Affiliates. Except as disclosed on the attached
SCHEDULE 6m other than the most recently amended SCHEDULE 6m (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 6m, 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.
n. Debt. Neither the Guarantor nor the Lessee is an obligor on any
Funded Debt, other than Permitted Debt.
o. Material Agreements. Neither the Guarantor nor the Lessee is a party
to any Material Agreement, other than the Lease Documents, the Credit Agreement,
and the Material Agreements described on the attached SCHEDULE 6o. All described
Material Agreements are in full force and effect, and 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.
p. 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 selfinsurance 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 coinsurance and
deductibles) as is customary in the case of similar businesses.
q. 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.
r. 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.
s. 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.
t. 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 mark,
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 mark, trademark, trade name,
trade secret or other intellectual property of either the Guarantor or the
Lessee exists.
Amended and Restated Guaranty - Page 11
Except as disclosed on the attached SCHEDULE 6t, or on the most recently amended
SCHEDULE 6t, no Company has any ownership or other interest in any United States
or foreign trademark applications or registrations thereof, patent applications
or issued patents, or copyright applications or registrations thereof.
u. 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.
7. Affirmative Covenants. So long as any Lease Document is in force and
effect, Guarantor covenants and agrees as follows:
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, 2003, in
the case of financial projections, and commencing with the fiscal year
ending March 31, 2003, 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
Amended and Restated Guaranty - Page 12
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.
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, or shall cause Lessee to, promptly pay
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, as the case may be, existence and
good standing in its state of incorporation 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
Amended and Restated Guaranty - Page 13
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 selfinsurance 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 coinsurance 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 noncompliance 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.
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
Amended and Restated Guaranty - Page 14
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. Payment of Obligations. Guarantor may not and may not permit any
Company to voluntarily prepay principal of, or interest on, any Debt other than
the Obligation, if a Default or Potential Default exists.
b. 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.
c. 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 nor materially modify any Debt that is subordinate to the Obligations or
any document or instrument evidencing such Debt.
d. 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.
e. 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.
f. 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
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.
g. 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 Guarantor or a Company may make an
Amended and Restated Guaranty - Page 15
advance to, investment in or purchase from another Person if (1) (a) such action
results in the acquisition of such Person by Guarantor or 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) the Person being acquired is located in either the United States or Canada
east of the Rocky Mountains, (e) the Person being acquired will not exceed
twenty percent (20%) growth in the total number of service bays owned by
Guarantor and (leased by Lessee under the Brazos Facility immediately prior to
the time of acquisition, and (f) immediately after giving effect to such
acquisition, the Companies shall be in compliance with all covenants under
SECTIONS 8 and 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 $5,000,000; 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.
h. 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,
or (b) any other Company to 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.
i. 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 prior fiscal year, (g) sale, lease or other disposition by Lessee of its
assets to the Guarantor (subject to the terms of the Lease Documents), (h) sale
and leasebacks of equipment that are acquired and sold within twelve (12) months
of acquisition of such equipment, (i) sales of assets having an aggregate fair
market value not exceeding $4,000,000 during any fiscal year of Guarantor and
sold for a price which is within a fair market value for such assets, excluding
from such aggregate fair market value under this clause (i) the value of any
asset purchased from the Brazos Facility on the Effective Date and then sold
within two (2) years from the Effective Date for a price which is within the
fair market value for such assets, or (j) as disclosed on the attached SCHEDULE
8h.
j. 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 interest of the Guarantor.
k. 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.
Amended and Restated Guaranty - Page 16
l. 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).
m. 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.
n. 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.
o. Leases; Sale-Leasebacks. Except as otherwise provided herein the
Guarantor will not, and will not permit any Subsidiary to, enter into any
arrangement whereby the Guarantor or any such Subsidiary shall sell or transfer
property owned by the Guarantor or such Subsidiary 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 (and
extensions and renewals of such transaction) with Citizens Bank of
Massachusetts, (iii) the existing balances under the leases as of the Effective
Date pursuant to that certain $7,000,000.00 off-balance sheet transaction with
Fleet National Bank existing on September 15, 1998, or (iv) 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.
p. 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 in 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:
Minimum EBITDAR less
CAPEX to Interest
Expense plus Rental
Payments
---------------------
At Closing through Not less than 1.95 to
9/30/03 1.0
Through 12/31/03 Not less than 1.95 to
1.0
Through 12/31/04 Not less than 1.95 to
1.0
Through 12/31/05 Not less than 1.95 to
1.0
a. Adjusted Debt to EBITDAR.
i. Prior to the first Acquisition after January 31, 2003, the Adjusted
Debt to EBITDAR shall not increase above 3.50 to 1.00;
Amended and Restated Guaranty - Page 17
ii. Following any Acquisition after January 31, 2003, the Adjusted Debt
to EBITDAR must not be greater than 4.00 to 1.00 prior to closing any
additional Acquisitions; and
iii. At no time shall Adjusted Debt to EBITDAR exceed 4.25 to 1.00.
b. Minimum Tangible Net Worth. At all times, Guarantor shall meet or
exceed the Minimum Tangible Net Worth for such period.
c. Recharacterization of Brazos Facility. The Guarantor and Lessor
agree to the extent that accounting rules are changed to require the recording
of assets and debt for the Brazos Facility on the Guarantor's books (through the
consolidation of the synthetic lease counterparty or any other method or in any
other manner), the financial covenants set forth herein shall be re-set at
levels that are inclusive of the change in such covenants resulting solely from
the change in accounting treatment of the Brazos Facility.
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 8a, 8h, 8i,
8j, 8k, or 8n;
ii. Any covenant or agreement contained in SECTIONS 7a(i) and
(ii), 7b, 7c, 7g, 8b, 8c, 8g, 8l, 8m, 8n, 8o, or 8p 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.
Amended and Restated Guaranty - Page 18
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. Material Adverse Event. A Material Adverse Event occurs.
h. 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.
i. 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.
j. 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.
Amended and Restated Guaranty - Page 19
13. Costs, Expenses and Taxes. The Guarantor agrees to pay on demand
(except to the extent paid by Lessee): (i) all reasonable outofpocket 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 outofpocket 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, 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.
Amended and Restated Guaranty - Page 20
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. In this Guaranty, unless a clear contrary intention
appears:
a. the singular number includes the plural number and vice versa;
b. reference to any gender includes each other gender;
c. 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;
d. 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;
e. 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;
f. 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;
g. the word "including" (and with correlative meaning "include") means
including, without limiting the generality of any description preceding such
term;
h. 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
i. 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.
j. The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
k. 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 THE DISTRICT COURTS OF NEW YORK, NEW YORK 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
Amended and Restated Guaranty - Page 21
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.
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.
200 Holleder Parkway
Rochester, New York 14615
Attention: Catherine D'Amico, Executive Vice President,
Chief Financial Officer, and Treasurer
telephone: (716) 647-6400
telecopy: (716) 627-0941
with a copy to
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention: Rob Kiesel
telephone: (212) 756-2008
telecopy: (212) 593-5955
Amended and Restated Guaranty - Page 22
b. If to the Lessor:
Brazos Automotive Properties, L.P.
2911 Turtle Creek Blvd., Suite 1240
Dallas, Texas 75219
Attention: Gregory C. Greene
telephone: (214) 522-7296
telecopy: (214) 520-2009
with a copy to
Robert R. Veach, Jr.
2911 Turtle Creek Blvd., Suite 1240A
Dallas, Texas 75219
telephone: (214) 522-7544
telecopy: (214) 520-2009
and a copy to
Heller Financial, Inc.
500 West Monro Street
Chicago, Illinois 60661
Attention: Michael G. Nawara
telephone: (312) 441-6902
telecopy: (312) 441-7519
c. or, in the case of any party hereto, such other address or telecopy
number as such party may hereafter specify for such purpose by notice to the
other parties given in accordance with the provisions of this SECTION 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 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
Amended and Restated Guaranty - Page 23
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.
28. New Guaranty.
a. In the event that (a) any Lease Document is rejected by a trustee or
debtor-in-possession in any bankruptcy or insolvency proceeding involving the
Lessee or (b) 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
Amended and Restated Guaranty - Page 24
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, (a) 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 (b) JPMorgan (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 JPMorgan, 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, (a) 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 (b) at such time or at any
time thereafter, JPMorgan (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.
Amended and Restated Guaranty - Page 25
Sincerely yours,
MONRO MUFFLER BRAKE, INC.,
a New York corporation
By: /s/ Catherine D'Amico
-----------------------------------------
Catherine D'Amico, Executive Vice
President,
Chief Financial Officer, and
Treasurer
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/ Gregory C. Greene
-------------------------------
Gregory C. Greene
President
Amended and Restated Guaranty - Signature Page
EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ________, __
To: Brazos Automotive Properties, L.P. and
JPMorgan Chase, as Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Guaranty dated
as of December ___, 2002 (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:
---------------------------------
Amended and Restated Guaranty - Exhibit A
SCHEDULE 1
to the Compliance Certificate
($ in 000's)
(all calculations are for Guarantor and its Subsidiaries
on a consolidated basis)
Amended and Restated Guaranty - Exhibit A
SCHEDULE 6a
JURISDICTIONS OF INCORPORATION AND BUSINESS
<Table>
<Caption>
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** ***
Monro Leasing, LLC DE
NY** ***
Kimmel Automotive, Inc. MD MD
VA
</Table>
- ----------
* 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.
Amended and Restated Guaranty - Schedule 6a
SCHEDULE 6b
CORPORATE STRUCTURE
<Table>
<Caption>
PARENT SUBSIDIARY % Ownership
- -------------------------- -------------------------- -----------
Monro Muffler Brake, Inc. Monro Service Corporation 100%
Monro Muffler Brake, Inc. Monro Leasing, LLC 100%
Monro Muffler Brake, Inc. Kimmel Automotive, Inc. 100%
</Table>
Amended and Restated Guaranty - Schedule 6b
SCHEDULE 6f
LITIGATION
NONE
Amended and Restated Guaranty - Schedule 6f
SCHEDULE 6h
ENVIRONMENTAL MATTERS
NONE
Amended and Restated Guaranty - Schedule 6h
SCHEDULE 6j
PERMITTED LIENS
1. Liens now or hereafter securing the Obligation.
2. Any Lien securing Debt permitted in ITEMS 3 OR 5 of SCHEDULE 6N
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 the Credit 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 Borrower securing obligations under the Amended and
Restated Guaranty dated as of March 19, 2003 of Guarantor in favor of
Lessor and Liens in favor of the Lenders as defined in and securing
obligations under this Guaranty.
Amended and Restated Guaranty - Schedule 6j
EXHIBIT A
MONRO MUFFLER BRAKE, INC.
UCC FILINGS
<Table>
<Caption>
STATE FILING DATE FILE NUMBER SECURED PARTY
- -------------- ----------- ---------------- -------------------------------------------------
Connecticut 3/24/93 1002886 The Chase Manhattan Bank
Connecticut 4/12/94 1053129 The Chase Manhattan Bank
Connecticut 4/12/94 1053132 The Chase Manhattan Bank
Connecticut 10/2/95 1648425 The Chase Manhattan Bank
Connecticut 10/10/95 1653901 The Chase Manhattan Bank
Connecticut 10/23/95 1653394 The Chase Manhattan Bank
Connecticut 10/23/95 1653399 The Chase Manhattan Bank
Maryland 4/12/94 94-04-12-7705 The Chase Manhattan Bank
New Hampshire 08/21/98 518658 Fleet Capital Corporation, for itself and/or
as Agent
New Hampshire 08/21/98 518659 General Electric Capital Corporation
New Hampshire 08/21/98 518660 Fleet Capital Corporation, for itself and/or
as Agent
New Hampshire 01/21/99 529094 General Electric Capital Corporation
New Hampshire 04/26/99 535046 General Electric Capital Corporation
New Hampshire 05/03/99 535692 General Electric Capital Corporation
New Jersey 9/11/98 1859727 General Electric Capital Corporation
New Jersey 9/11/98 1859729 General Electric Capital Corporation
New Jersey 9/14/98 1859886 Fleet Capital Corporation
New Jersey 9/14/98 1859887 Fleet Capital Corporation
New Jersey 4/26/99 1903057 General Electric Capital Corporation
New Jersey 4/29/99 1905969 General Electric Capital Corporation
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
</Table>
Amended and Restated Guaranty - Schedule 6j
Exhibit "A"
<Table>
New York 4/9/93 076671 The Chase Manhattan Bank
New York 4/13/93 079233 The Chase Manhattan Bank
New York 8/17/98 177075 Fleet Capital Corporation
New York 8/17/98 177080 Fleet Capital Corporation
New York 8/28/98 186037 General Electric Capital Corporation
New York 8/28/98 186043 General Electric Capital Corporation
New York 10/14/98 218415 The Chase Manhattan Bank
New York 10/22/98 224837 Brazos Automotive Properties, L.P.
New York 4/1/02 074328 The Chase Manhattan Bank
New York 4/29/02 099082 JPMorgan Chase Bank
New York 4/29/02 099862 JPMorgan Chase Bank
New York 4/29/02 099869 JPMorgan Chase Bank
New York 5/6/02 104345 JPMorgan Chase Bank
New York 5/6/02 104624 JPMorgan Chase Bank
New York 5/20/02 117735 JPMorgan Chase Bank
New York 9/23/02 217224 The Chase Manhattan Bank
New York 9/23/02 217447 JPMorgan Chase Bank
New York 10/15/02 234149 The Chase Manhattan Bank
New York 10/15/02 234152 The Chase Manhattan Bank
New York 10/15/02 234157 JPMorgan Chase Bank
New York 10/15/02 234162 JPMorgan Chase Bank
New York 10/16/02 235134 JPMorgan Chase Bank
New York 11/22/02 200211222629100 The Chase Manhattan Bank
New York 11/22/02 200211222629237 The Chase Manhattan Bank
New York 11/22/02 200211222629263 The Chase Manhattan Bank
Ohio 1/29/99 AP0116702 General Electric Capital Corporation
Pennsylvania 10/14/87 15670762 The Chase Manhattan Bank
Pennsylvania 10/14/87 15670766 The Chase Manhattan Bank
Pennsylvania 10/14/87 15670770 The Chase Manhattan Bank
Pennsylvania 1/4/88 15871945 The Chase Manhattan Bank
Pennsylvania 8/31/92 21150244 The Chase Manhattan Bank
</Table>
Amended and Restated Guaranty - Schedule 6j
Exhibit "A"
SCHEDULE 6k
CHIEF EXECUTIVE OFFICE, LOCATION OF MATERIAL ASSETS AND REAL ESTATE INTERESTS
CHIEF EXECUTIVE OFFICE OF EACH
COMPANY LISTED ON SCHEDULE 7.2: 200 Holleder Parkway
Rochester, New York 14615
MATERIAL ASSETS OF EACH
COMPANY LISTED ON SCHEDULE 7.2: 200 Holleder Parkway
Rochester, New York 14615
REAL ESTATE INTERESTS OF EACH
COMPANY LISTED ON SCHEDULE 7.2: 200 Holleder Parkway
Rochester, New York 14615
2350 Brighton - Henrietta Town Line Road
Rochester, New York 14263
<Table>
<Caption>
Shop Address City State County Zip
- ---- ------- ---- ----- ------ ---
6 791 W. Main Street Rochester NY Monroe 14611
13 5710 S. Transit Road Lockport NY Niagara 14094
19 602 W. State Street Olean NY Cattaraugus 14760
20 1010 Fairmount Avenue Jamestown NY Chautauqua 14701
32 4944 Commercial Drive Yorkville NY Oneida 13495
50 10380 Bennett Road Fredonia NY Chautauqua 14063
62 225 N. Genesee Street Utica NY Oneida 13502
64 1653 State Street at Eastern Blvd. Watertown NY Jefferson 13601
67 Route 8 & 62 Franklin Oil City Road Franklin PA Venango 16323
68 4460 Dewey Avenue Greece NY Monroe 14612
71 1971 Boston Road Wilbraham MA Hampden 01095
75 300 E. State Street (corner King St) Herkimer NY Herkimer 13350
76 Route 6 @ Betty Street Archibald PA Lackawanna 18403
78 2719-2723 Library Road Pittsburgh PA Allegheny 15234
80 245 Groton Avenue Cortland NY Cortland 13045
82 1816 Berlin Turnpike Wethersfield CT Hartford 06109
86 1753 Golden Mile Hwy (Rte 286) Monroeville PA Allegheny 15146
90 Route 93W Hazleton PA Luzerne 18201
92 656 Farmington Avenue Bristol CT Hartford 06010
</Table>
Amended and Restated Guaranty - Schedule 6k
<Table>
100 1350 Main Street Buffalo NY Erie 14209
101 575 Erie Avenue N. Tonawanda NY Niagara 14120
102 169 E. Bridge Street Oswego NY Oswego 13126
103 257 S. Second Street Fulton NY Oswego 13069
120 2745 North Elm Road Warren OH Trumbull 44483
124 520-524 N. Main Street @ Hillcrest N. Canton OH Stark 44720
125 1205 Market Avenue at 12th Street Canton OH Stark 44714
137 110 Susquehanna Trail (Rte 11 & 15) Selinsgrove PA Snydea 17870
140 1700 W. Cumberland Street Lebanon PA Lebanon 17042
143 151 Quaker Road E. Aurora NY Erie 14052
146 1511 Route 9 Clifton Park NY Saratoga 12065
160 41 Lake Avenue Extension Danbury CT Fairfield 06811
162 5501 Allentown Blvd. Harrisburg PA Dauphin 17112
164 2344 Lincoln Way East Massilon OH Stark 44646
168 2008 S. Pleasant Valley Road Winchester VA Fredrick 22601
169 20972 Timberlake Road, Route 460 Lynchburg VA Campbell 24502
172 3201 Old Forest Road Lynchburg VA Campbell 24501
177 2781 Cleveland Road Wooster OH Wayne 44691
179 1861 W. Main Street Salem VA Roanoke 24153
183 554 Albany Post Road (Route 9) Hyde Park NY Dutchess 12538
184 360 Russell Street Hadley MA Hampshire 01035
185 1177 Orange Avenue (Route 1) West Haven CT New Haven 06516
186 2400 W. Main Street Waynesboro VA Augusta 22980
190 2870 Market Street Christiansburg VA Montgomery 24073
191 508 Winchester Street Keene NH Cheshire 03431
192 548 Talcottville Road Vernon CT Tolland 06066
193 2151 E. Market Street Harrisonburg VA Rockingham 22801
204 4731 Onondaga Blvd. Syracuse NY Onondaga 13219
205 1043 Bridgeport Avenue Milford CT Fairfield 06460
207 557 W. Main Street Norwich CT New London 06360
210 1201 Fairmont Avenue Fairmont WV Marlon 26554
213 901 Boston Post Road Old Saybrook CT Middlesex 06475
216 935 Clinton Avenue Defiance OH Defiance 43512
219 6 Cheshire Road Pittsfield MA Berkshire 01201
221 451 Main Street Monroe CT Fairfield 06468
226 94 Route 9 North Rhinebeck NY Dutchess 12572
229 191 Rohrerstown Road Lancaster PA Lancaster 17603
230 60 Freshwater Blvd. Enfield CT Hartford 06082
236 1870 Columbus Avenue (Route 62) Washington Ct. OH Fayette 43160
</Table>
Amended and Restated Guaranty - Schedule 6k
<Table>
House
242 7426 Williamson Road Roanoke VA Roanoke 24019
246 114 Pearl Street Essex Junction VT Franklin 05452
247 1385 S. Main Street Bryan OH Williams 43506
248 56 Division Street Derby CT New Haven 06418
255 108 Merchant Place Cobleskill NY Schoharie 12043
261 116 River Street Saranac Lake NY Essex 12983
272 308 Lafayette Road Hampton NH Rockingham 03842
274 3057 Washington Pike Bridgeville PA Allegheny 15017
281 230 Hauenstein Road Huntington IN Huntington 46750
282 1111 East US Route 36 Urbana OH Champaign 43078
284 348 Daniel Webster Highway Merrimack NH Hillsborough 03054
288 1060 Wayne Avenue Chambersburg PA Franklin 17201
294 4868 Ledgewood Drive Medina OH Medina 44256
295 2009 Silas Deane Highway Rocky Hill CT Hartford 06067
298 845 Park Road (Worthington Park) Columbus OH Franklin 43085
299 2015 Cherry Street Noblesville IN Hamilton 46060
300 434 High Street Somersworth NH Strafford 03878
302 202 East McClarnon Drive Greenfield IN Hancock 46140
303 3707 Fishinger Blvd. (Mill Run) Columbus OH Franklin 43026
305 173 Dolson Avenue Middletown NY Orange 10940
306 5607 State Highway 12 Norwich NY Chenango 13815
308 200 New Hartford Road Winsted CT Litchfield 06098
309 33605 Solon Road Solon OH Cuyahoga 44139
311 909 Hanover Street Manchester NH Hillsborough 03103
312 850 Refugee Road Pickerington OH Fairfield 43147
313 107 Route 101A Amherst NH Hillsborough 03031
322 1409 South Main Street Mansfield PA Tioga 16933
323 64 North Plank Road Newburgh NY Orange 12550
324 4115 McKinley Parkway Blasdell NY Erie 14219
328 5454 Westchester Woods Blvd. Hilliard OH Franklin 43026
329 257 York Road Warminster PA Bucks 18974
331 5053 Highway 70 Morehead City NC Carteret 28557
333 7611 East 96th Street Indianapolis IN Hamilton 46240
334 963 West Main Street New Britian CT Hartford 06052
336 250 Lowell Road Hudson NH Hillsborough 03051
340 1105 Columbus Pike Delaware OH Delaware 43015
341 11334 Maple Ridge Road Medina NY Orleans 14103
344 1155 Memorial Blvd. Martinsville VA Henry 24112
</Table>
Amended and Restated Guaranty - Schedule 6k
<Table>
345 2095 North Black Horse Pike Williamstown NJ Gloucester 08094
350 1194 Main Street Haverhill MA Essex 01830
354 311 Eliot Street Ashland MA Middlesex 01721
363 6580 Perimeter Loop Road Dublin OH Franklin 43017
369 133 W. Main Street Leroy NY Genesee 14482
371 616 Rt. 29 South Tunhannock PA Wyoming 18657
380 RR 6 Box 6172 Towanda PA Bradford 18848
383 4872 Transit Road Depew NY Erie 14043
384 501 West Central Avenue Titusville PA Crawford 16354
388 2444 State Route 414 Waterloo NY Seneca 13165
393 454 Route 9W Glenmont NY Albany 12077
395 5805 Rome-Taberg Road Rome NY Oneida 13440
397 57 Dutilh Road Cranberry, TWP PA Butler 16066
399 7275 Pittsford Palmyra Road Fairport NY Monroe 14450
459 2995 Ridge Road West W. Seneca NY Erie 14224
562 5525 Penn Avenue Pittsburgh PA Allegheny 15206
601 1390 North Hamilton Road Gahanna OH Franklin 43230
604 108 Tolley Drive Bridgeport WV Harrison 26330
609 4706 North Keystone Avenue Indianapolis IN Marion 46205
705 2707 W. Mercury Blvd. Hampton VA N/A 23666
734 7316 Ritchie Hwy. Glen Burnie MD Anne Arundel 21061
</Table>
Amended and Restated Guaranty - Schedule 6k
SCHEDULE 6m
TRANSACTIONS WITH AFFILIATES
In December 1998, the Borrower loaned $523,000 to its newly-appointed Chief
Executive Officer (the "EXECUTIVE") to purchase 75,000 shares of the Borrower's
common stock at then fair market value. (This loan was made subsequent to the
Executive's purchase of 25,000 shares using his funds.) The loan, which bears an
interest rate of 5.5% per annum, matures on December 1, 2003, and requires five
equal annual installments of principal beginning on the first anniversary of the
loan. If the Executive is employed with the Borrower when a principal payment is
due, that installment will be forgiven by the Borrower. All interest is due on
the fifth anniversary of the loan, and shall also be forgiven if the Executive
is employed with the Borrower at that time. The loan is secured by the common
stock.
Certain (a) principal shareholders/directors of the Borrower, (b) partnerships
in which such persons have interests or (c) trusts of which members of their
families are beneficiaries are lessors of certain facilities to the Borrower.
Payments under such operating and capital leases amounted to $1,643,000,
$1,694,000 and $1,713,000 for the years ended March 2002, 2001, and 2000,
respectively. Amounts payable under these lease agreements totaled $34,000 and
$39,000, respectively, at March 30, 2002 and March 31, 2001.
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.
The Borrower has a management agreement with an investment banking firm
associated with a principal shareholder/director of the Borrower to provide
financial advice. The agreement provides for an annual fee of $160,000, plus
reimbursement of out-of-pocket expenses. During fiscal 2002, 2001 and 2000, the
Borrower incurred fees of $160,000 annually under this agreement. In addition,
this investment banking firm, from time to time, provides additional investment
banking services to the Borrower for customary fees.
Approximately half of the all payments made to the investment banking firm are
paid to another principal shareholder/director of the Borrower.
Amended and Restated Guaranty - Schedule 6m
SCHEDULE 6n
PERMITTED DEBT
1 The Obligation under the Loan Papers as defined in the Credit
Agreement.
2 Debt arising from endorsing negotiable instruments for collection in
the ordinary course of business.
3 Capitalized Leases.
4 Current liabilities incurred in the ordinary course of business.
5 Purchase money Debt limited to fixed or capital assets.
6 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.
7 Debt of the Borrower 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 of the Credit Agreement.
8 Debt listed below:
<Table>
<Caption>
AMOUNT INTEREST
3/1/03 % MATURITY
--------- ----------- --------
TERM NOTE R MORTLAND 82,684 0 Mar-08
CITY OF ROCHESTER 660,000 0 Oct-14
CHASE MTG HQ 1,877,833 LIBOR+100BP Sep-05
CHASE TERM LOAN-HQ 61,749 LIBOR+100BP Sep-03
</Table>
Amended and Restated Guaranty - Schedule 6n
SCHEDULE 6o
MATERIAL AGREEMENTS
1. $7,000,000 Master Equipment Lease Agreement No. 32466 (with four leases
totaling approximately $568,288.43 outstanding) dated as of March 30,
1998, between Borrower and Fleet Capital Corporation, and the security
agreements entered into pursuant thereto, providing for an equipment
leasing facility where no further leases can be incurred after the
Effective Date.
2. $10,000,000 equipment lease evidenced by that certain Tax Lease Letter
dated December 19, 2002 from Citizens Leasing Corporation to Borrower
and that certain Off-Balance Sheet Lease Letter dated December 19, 2002
from Citizens Leasing Corporation to Borrower.
Amended and Restated Guaranty - Schedule 6o
SCHEDULE 6t
INTELLECTUAL PROPERTY
<Table>
<Caption>
REG.
TRADEMARK FILING DATE SERIAL NO. DATE REG. NO. OWNER
------------------------ ----------- ---------- -------- --------- -------------
SPEEDY BRAKE AND MUFFLER 11/18/97 2,113,696 Monro Muffler
Brake, Inc.
SPEEDY 6/3/97 2,066,069 Monro Muffler
Brake, Inc.
THE FUTURE OF UNDERCAR 6/2/92 1,690,526 Monro Muffler
CARE Brake, Inc.
SPEEDY MUFFLER KING 12/14/71 925,480 Monro Muffler
Brake, Inc.
SPEEDY MUFFLER KING 11/9/71 923,648 Monro Muffler
Brake, Inc.
TREAD QUARTERS 2/25/03 76/492,575 Monro Muffler
Brake, Inc.
</Table>
Amended and Restated Guaranty - Schedule 6t
SCHEDULE 8h
EXISTING SALE\LEASEBACK PROPERTIES
NONE
Amended and Restated Guaranty - Schedule 8h