exv10w18



 



Exhibit 10.18


SECOND AMENDMENT TO GUARANTY

June 26, 2003



Capital Automotive REIT

Capital Automotive L.P.

1420 Spring Hill Road

Suite 525

McLean, VA 22102




	 	 	Re:     Second Amendment (“Second Amendment”) to the Guaranty Agreement dated
as of March 29, 2002, executed and delivered by Capital Automotive REIT
(“Guarantor”), as amended by that certain First Amendment to Guaranty
dated as of October 17, 2002 (as amended, the “Guaranty”) under and in
connection with the Capital Automotive L.P. Revolving Credit Agreement
dated as of March 29, 2002, by and among the financial institutions from
time to time signatory thereto (each a “Lender”, and collectively the
“Lenders”), Comerica Bank, as Agent for the Lenders (in such capacity,
“Agent”), Capital Automotive L.P. (“Company”) and the Co-Borrowers from
time to time signatory thereto (collectively with the Company, the
“Borrowers”), as amended by that certain First Amendment to Credit
Agreement dated as of May 1, 2002 and that certain Second Amendment to
Credit Agreement dated as of the date hereof (as amended, the “Credit
Agreement”)



Ladies and Gentlemen:



     Reference is made to the Guaranty. Except as specifically defined to the
contrary herein, capitalized terms used in this Second Amendment shall have the
meanings given them in the Guaranty.


     Based upon the Agent’s receipt of the approval of the requisite Lenders
(in the form attached to this Second Amendment) and subject to the terms and
conditions set forth in this Second Amendment, the Agent hereby confirms the
agreement by the requisite Lenders to amend and restate the definitions of
“Consolidated Net Worth”, “Total Assets”, “Total Liabilities” and “Debt
Service” in Section 1 of the Guaranty, to state as follows:



	 	 	““Consolidated Net Worth” shall mean, as of any date of
determination, the remainder of (a) net book value of all assets
of Guarantor and its Consolidated Subsidiaries on a Consolidated
basis in accordance with GAAP plus, to the extent not included in
book value, the minority interest in CALP, minus (b) Total
Liabilities of Guarantor and its Consolidated Subsidiaries, in
each case as reflected on the balance sheet of the Guarantor’s
most recent financial statements filed as part of a form 10K or
10Q filed with the Securities Exchange Commission, provided,
however, that the calculation of Consolidated Net Worth shall
exclude any cumulative non-cash adjustments related to derivative
instruments or hedging activities as required by FASB 133.”



 






 





	 	 	““Debt Service” shall mean, as of any date of determination, a
Person’s principal amortization of long-term debt for the
preceding four fiscal quarters, plus Consolidated Interest Expense
for the preceding four fiscal quarters, plus scheduled dividends
payable during such period by CARS on any preferred stock.”
	 
	 	 	““Total Assets” shall mean, as of any applicable date of
determination, the total assets of Guarantor, determined on a
Consolidated basis in accordance with GAAP; provided, however,
that the calculation of Total Assets shall exclude any cumulative
non-cash adjustments related to derivative instruments or hedging
activities as required by FASB 133.”
	 
	 	 	““Total Liabilities” shall mean, as of any date of determination,
the total liabilities (minus any security deposits held by
Guarantor, CALP or any of their respective Subsidiaries pursuant
to any Lease Agreement), as reflected on the balance sheet of the
Guarantor’s most recent financial statements filed as a part of a
form 10K or 10Q filed with the Securities Exchange Commission,
determined according to GAAP, provided, however, that the
calculation of Total Liabilities shall exclude any cumulative
non-cash adjustments related to derivative instruments or hedging
activities as required by FASB 133.”



     Further, subject to the terms and conditions of this Second Amendment, the
Agent hereby also confirms the agreement by the requisite Lenders to amend and
restate Section 5.11 of the Guaranty to state as follows:



	 	 	“5.11 Maintain Total Liabilities to Consolidated Tangible Net
Worth. Maintain as of the end of each fiscal quarter ending on or
after the Effective Date, a ratio of Total Liabilities as of such
date to Consolidated Tangible Net Worth as of such date of not
more than 2.25 to 1.”



     Except as set forth above, this Second Amendment shall not be deemed to
amend or alter in any respect the terms and conditions of the Guaranty, the
Credit Agreement, the Notes or any other Loan Document and shall not be deemed
to be a waiver of or consent to any other matter.


     By signing and returning a counterpart of this Second Amendment to the
Agent, the Guarantor, the Company and the Co-Borrowers acknowledge their
acceptance of the terms of this Second Amendment. This Second Amendment shall
not become effective unless and until (i) the Second Amendment is countersigned
by the Guarantor, the Company and the Co-Borrowers, the Agent and the requisite
Lenders and such countersignatures are returned to the Agent, (ii) that certain
Second Amendment to Credit Agreement dated as of June     , 2003 has become
effective, and (iii) Agent shall have received certified copies of company or
partnership resolutions or other authority documents confirming, as applicable,
due authorization, execution and delivery of the Second Amendment by each of
the Borrowers and the Guarantor. Upon receipt of the requisite signatures and
satisfaction of the terms and conditions set forth herein, this Second
Amendment shall be deemed to be effective as of June 26, 2003.


2






 



	 	 	 	 	 
	 	 	Very truly yours,
	 	 	 	 	 
	 	 	COMERICA BANK, as Agent and Lender
	 	 	 	 	 
	 	 	
By:
	 	/s/ Joseph M. Davignon
	 	 	 	

	 	 	
Its:
	 	First Vice President
	 	 	 	




3






 



ACKNOWLEDGMENTS




	 	 	 	 	 
	Acknowledged and agreed:	 	GUARANTOR:
	 	 	 	 	 
	 	 	CAPITAL AUTOMOTIVE REIT, a Maryland
real estate trust
	 	 	 	 	 
	 	 	
By:
	 	/s/ David S. Kay
	 	 	 	

	 	 	 	 	 
	 	 	
Its:
	 	Senior Vice President and
	 	 	 	 	    Chief Financial Officer
	 	 	 	 	 
	 	 	BORROWERS:
	 	 	 	 	 
	 	 	CAPITAL AUTOMOTIVE L.P.
	 	 	 	 	 
	 	 	
By:
	 	Capital Automotive REIT
	 	 	
Its:
	 	General Partner
	 	 	 	 	 
	 	 	
By:
	 	/s/ David S. Kay
	 	 	 	

	 	 	 	 	 
	 	 	
Its:
	 	Senior Vice President and
	 	 	 	 	    Chief Financial Officer
	 	 	 	 	 




	 	 	 	 	 
	 	CAR 1 MOM L.P., a Delaware limited partnership
	 	 	 	 	 
	 	 	
BY:
	 	CAR MOM INC., it general partner
	 	 	 	 	 
	 	 	
By:
	 	/s/ David S. Kay
	 	 	 	

	 	 	 	 	 
	 	 	
Its:
	 	Senior Vice President and
	 	 	 	 	    Chief Financial Officer
	 	 	 	 	 
	 	CAR 2 MOM L.P., a Delaware limited partnership
	 	 	 	 	 
	 	 	
BY:
	 	CAR MOM INC., its general partner
	 	 	 	 	 
	 	 	
By:
	 	/s/ David S. Kay
	 	 	 	

	 	 	 	 	 
	 	 	
Its:
	 	Senior Vice President and
	 	 	 	 	    Chief Financial Officer









 


SIGNATURE PAGE TO SECOND AMENDMENT TO GUARANTY



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	 	CAR SON PARR L.P., a Delaware limited

partnership
	 	 	 	 	 
	 	
          BY: CAR MOM INC., its general partner
	 	 	 	 	 
	 	 	
By:
	 	/s/ David S. Kay
	 	 	 	

	 	 	 	 	 
	 	 	
Its:
	 	Senior Vice President and
	 	 	 	 	    Chief Financial Officer
	 	 	 	 	 
	Dated as of June     , 2003	 	 	 	 








 


SIGNATURE PAGE TO SECOND AMENDMENT TO GUARANTY



4






 





Approval of Second Amendment and Authorization



     The undersigned Lender, by its duly authorized officer, hereby confirms
its approval of the attached Second Amendment on the terms and conditions set
forth therein and its authorization to the Agent to issue the Second Amendment
to the Guarantor, the Company and the Co-Borrowers.



	 	 	 	 	 
	 	 	LENDER:
	 	 	 	 	 
	 	 	BANK OF AMERICA
	 	 	 	 	 
	 	 	
By:
	 	/s/ K.W. Winston,
III



	 	 	
Name:
	 	K.W. Winston, III




	 	 	
Title:
	 	Senior Vice
President






Date: June 24, 2003


SIGNATURE PAGE TO SECOND AMENDMENT TO GUARANTY



 






 





Approval of Second Amendment and Authorization



     The undersigned Lender, by its duly authorized officer, hereby confirms
its approval of the attached Second Amendment on the terms and conditions set
forth therein and its authorization to the Agent to deliver the Second
Amendment to the Company.



	 	 	 	 	 
	 	 	LENDER:
	 	 	 	 	 
	 	 	BANK
ONE, N. A.
	 	 	 	 	 
	 	 	
By:
	/s/ Peter J. Valore
	 	 	 	

	 	 	
Name:
	 	Peter J. Valore
	 	 	 	

	 	 	
Title:
	 	Vice President
	 	 	 	




Date: June 26, 2003


SIGNATURE PAGE TO SECOND AMENDMENT TO GUARANTY








 





Approval of Second Amendment and Authorization



     The undersigned Lender, by its duly authorized officer, hereby confirms
its approval of the attached Second Amendment on the terms and conditions set
forth therein and its authorization to the Agent to deliver the Second
Amendment to the Company.



	 	 	 	 	 
	 	 	LENDER:
	 	 	 	 	 
	 	 	BRANCH BANKING AND TRUST

COMPANY
	 	 	 	 	 
	 	 	
By:
	/s/ Ronald P. Gudbrandsen
	 	 	 	

	 	 	
Name:
	 	Ronald P. Gudbrandsen
	 	 	 	

	 	 	
Title:
	 	Senior Vice President
	 	 	 	




Date: June 23, 2003


SIGNATURE PAGE TO SECOND AMENDMENT TO GUARANTY








 





Approval of Second Amendment and Authorization



     The undersigned Lender, by its duly authorized officer hereby confirms its
approval of the attached Second Amendment on the terms and conditions set forth
therein and its authorization to the Agent to deliver the Second Amendment to
the Company.



	 	 	 	 	 
	 	 	LENDER:
	 	 	 	 	 
	 	 	TOYOTA MOTOR CREDIT

CORPORATION, a California

corporation
	 	 	 	 	 
	 	 	
By:
	/s/ D. M. Taylor
	 	 	 	

	 	 	
Name:
	 	Mike Taylor
	 	 	 	

	 	 	
Title:
	 	Corporate Manager Dealer Relations
	 	 	 	




Date: June 24, 2003


SIGNATURE PAGE TO SECOND AMENDMENT TO GUARANTY