Exhibit 10.5
NEGATIVE PLEDGE AGREEMENT
This NEGATIVE PLEDGE AGREEMENT (as amended, restated, supplemented
or otherwise modified from time to time, this "AGREEMENT") is executed as of
July 13, 2005 by MONRO MUFFLER BRAKE, INC., a New York corporation ("BORROWER"),
MONRO SERVICE CORPORATION, a Delaware corporation ("MONRO SERVICE"), and MONRO
LEASING, LLC, a Delaware limited liability company ("MONRO LEASING", and
together with Borrower, and Monro Service, collectively, the "COMPANIES") to and
for the benefit of CHARTER ONE BANK, N.A., as administrative agent (in such
capacity, "ADMINISTRATIVE AGENT") for the Lenders ("LENDERS") party to the
Credit Agreement (defined below).
A. Borrower, Administrative Agent and the Lenders have executed a Credit
Agreement dated as of even date herewith (as amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), together with
certain other Loan Papers.
B. The execution and delivery of this Agreement is a condition to the
execution of the Credit Agreement and the other Loan Papers by Administrative
Agent and the Lenders and is an integral part of the transactions contemplated
by the Loan Papers and a condition precedent to the obligations of
Administrative Agent and the Lenders to extend credit under the Credit
Agreement.
NOW THEREFORE in consideration of the premises and other valuable
consideration, the receipt and adequacy of which are acknowledged, each of the
Companies covenants and agrees with Administrative Agent as follows:
1. Certain Definitions. Unless otherwise defined in this Agreement, each
capitalized term used but not defined in this Agreement will have the meaning
given that term in the Credit Agreement. As used in this Agreement, the
following terms have the meanings indicated:
CREDIT AGREEMENT has the meaning given in the Recitals.
DEFAULT means a Default as defined in the Credit Agreement.
OBLIGATION means (a) the Obligation as defined in the Credit Agreement,
(b) all indebtedness, liabilities and obligations of the Companies arising under
this Agreement, (c) interest accruing on, and attorneys' fees, court costs, and
other costs of collection reasonably incurred in the collection or enforcement
of, any of the indebtedness, liabilities, or obligations described in CLAUSES
(a) and (b) of this definition, and (d) any and all renewals and extensions of,
or amendments to, any of the indebtedness, liabilities, and obligations
described in CLAUSES (a) through (c) of this definition.
2. Property. Except as permitted under the Credit Agreement, each of the
Companies hereby agrees that, for so long as any part of the Obligations remains
outstanding, it will not, without first obtaining the prior written consent of
Administrative Agent, which at the sole discretion of Administrative Agent may
be recorded in the jurisdiction in which the affected property is situated, (i)
create or permit any lien, encumbrance, charge, or security interest of any kind
to exist on any of the real properties owned now or in the future by such
Company, including, without limitation, those
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properties described on EXHIBIT A attached hereto (the "PROPERTIES") or (ii)
transfer, sell, assign or in any manner dispose of all or any part of any of the
Properties or any interest therein.
3. Recording. Administrative Agent is hereby authorized and permitted to
cause this Agreement to be recorded at such time and at such places as
Administrative Agent, at its option, may elect.
4. Representations and Warranties of the Companies. Each Company
represents and warrants to Administrative Agent and the Lenders as follows:
(i) Such Company owns the Properties as described on EXHIBIT A
hereto and there are no existing liens or encumbrances upon or affecting the
Properties other than Permitted Liens.
(ii) That this Agreement constitutes the legal, valid and binding
obligation of such Company enforceable in accordance with its terms. The
execution and delivery of this Agreement and the compliance with the provisions
hereof will not conflict with or constitute a breach of, or default under, any
of the provisions of any other agreement to which such Company is a party.
5. Default. Any failure by any Company to comply with the terms of this
Agreement shall constitute a Default and the Companies agree that in such event
Administrative Agent and Lenders shall have the right in addition to such other
remedies as may be available to it, to file any deeds of trust, mortgages,
financial statements or security agreements securing the Obligations as against
any Property, and to obtain injunctive relief enjoining such breach of this
Agreement and the Companies agree that they shall not urge that such remedy is
not appropriate under the circumstances, it being expressly acknowledged by the
Companies that such action shall cause Administrative Agent and Lenders
irreparable damage for which legal remedies are inadequate to protect
Administrative Agent and Lenders.
6. Termination. This Agreement shall remain in full force and effect until
the obligation shall have been paid in full.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND AS
APPLICABLE, THE LAWS OF THE UNITED STATES OF AMERICA.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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Executed as of the date set forth in the preamble.
MONRO MUFFLER BRAKE, INC.,
a New York corporation
By: ____________________________________
Catherine D'Amico, Executive Vice
President of Finance, Chief
Financial Officer, and Treasurer
MONRO SERVICE CORPORATION,
a Delaware corporation
By: ____________________________________
Catherine D'Amico, Treasurer
MONRO LEASING, LLC,
a Delaware limited liability company
By: MONRO MUFFLER BRAKE, INC.,
its Sole Member
By: ________________________________
Catherine D'Amico,
Executive Vice President of Finance,
Chief Financial Officer, and Treasurer
CHARTER ONE BANK, N.A.,
as Administrative Agent
By: ____________________________________
Name: __________________________________
Title: _________________________________
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STATE OF NEW YORK)
) ss.
COUNTY OF _______)
On the ____ day of July in the year 2005 before me, the undersigned, personally
appeared ________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
______________________
Notary Public
STATE OF NEW YORK)
) ss.
COUNTY OF _______)
On the ____ day of July in the year 2005 before me, the undersigned, personally
appeared ________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
______________________
Notary Public
STATE OF NEW YORK)
) ss.
COUNTY OF _______)
On the ____ day of July in the year 2005 before me, the undersigned, personally
appeared ________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
______________________
Notary Public
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THE STATE OF NEW YORK)
) ss.
COUNTY OF _________ )
On the ____ day of July in the year 2005 before me, the undersigned, personally
appeared ________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
______________________
Notary Public
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EXHIBIT A
PROPERTIES
[SEE ATTACHED]
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