Exhibit No. 99.3 Trade Payables Agreement between GMAC Commercial Finance LLC
and The Pep Boys-Manny, Moe & Xxxx dated October 18, 2004.
TRADE PAYABLES AGREEMENT
THIS TRADE PAYABLES AGREEMENT as further defined below (the "Agreement")
entered into this day 18th of October, 2004, by and between GMAC COMMERCIAL
FINANCE LLC, a Delaware Limited Liability Company, having its principal place
of business at 0000 Xxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx 00000
("GMAC CF"), and The Pep Boys - Manny, Moe & Xxxx (Company), a Pennsylvania
Corporation having its principal place of business at 0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000. It is hereby agreed as follows:
WHEREAS, GMAC CF is in the business of providing credit, financing and accounts
payable and receivable servicing products to businesses; and
WHEREAS, Company is in the business of selling automotive components; and
WHEREAS, Company acknowledges that its suppliers may be willing to incur a
charge to procure payment prior to the ordinary payment date and wishes to
commence such a program with GMAC CF for such purposes.
WHEREAS, GMAC CF has agreed to effect payment to Company's supplier on behalf
of Company, and to provide certain administrative services in connection with
the program on and subject to the provisions of this Agreement.
NOW THEREFORE, in consideration of the foregoing, the mutual promises set forth
in this Agreement and for other good and valuable consideration, the receipt
and adequacy of which is acknowledged by the parties, the parties hereby agree
as follows:
1. DEFINITIONS AND INTERPRETATION.
(a) Definitions. The following terms used in this Agreement shall
have the following meanings:
"Agreement" shall mean this Trade Payables Agreement, including all
Schedules and Exhibits hereto, as the same may be amended, supplemented,
renewed, extended or otherwise modified from time to time.
"Approved Currency" shall mean US Dollars or any other currency agreed
to in writing between Company and GMAC CF.
"Approved Receipt" shall mean a Receipt of a Participating Supplier
denominated in an Approved Currency which has been listed on a Summary Report.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, being Title 11
of the United States Code as enacted in 1978, as the same has heretofore been
amended, recodified, modified or supplemented.
"Bankruptcy Event" shall mean, as to any Person, any of the following:
(i) any case or proceeding with respect to such Person under the U.S.
Bankruptcy Code or any other Federal or State bankruptcy, insolvency,
reorganization or other law affecting creditors' rights generally or any other
or similar proceedings seeking any stay, reorganization, arrangement,
composition or readjustment of the obligations and/or indebtedness of such
Person or (ii) any proceeding seeking the appointment of any trustee, receiver,
liquidator, custodian or other insolvency official with similar powers with
respect to such Person or any material portion of its assets or (iii) any
proceedings for liquidation, dissolution or other winding up of the business of
such Person or (iv) any assignment for the benefit of creditors or any
marshaling of assets of such Person.
"Business Day" shall mean any day other than Saturday, Sunday and any
other day that commercial banks in the State of Michigan are authorized or
required by law to close.
"Company Account" shall mean such bank account(s) designated in writing
by Company from time to time for the receipt of payments from GMAC CF (if any)
under this Agreement.
"Company Debit Account" shall mean any bank account(s) designated in
writing by Company from time to time against which GMAC CF will debit payment
of the Gross Amount of each Approved Receipt in the Approved Currency on the
Ordinary Payment Date.
"Company Default" shall mean an event which, with the giving of notice
or passage of time or both, would constitute a Company Event of Default.
"Company Event of Default" shall have the meaning set forth in
Section 6(a).
"Company Material Contract" shall mean any material indenture,
agreement, contract, note, document or instrument for borrowed money under
which Company is a party or by which Company may be bound.
"Company Obligations" shall mean any and all obligations, liabilities
and indebtedness of every kind, nature and description owing by Company to
GMAC CF, however evidenced, arising under or related to this Agreement or the
Program, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of this Agreement or after the
commencement of any case with respect to Company either under the Bankruptcy
Code or any similar statute (including the payment of interest and other
amounts which would accrue and become due but for the commencement of such
case, whether or not such amounts are allowed or allowable in whole or in part
in such case), whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated, or
secured or unsecured.
"Company Termination Notice" shall have the meaning set forth in
Section 8(b).
"Credit Memo" shall mean a document submitted by Pep Boys into the
GMAC CF/PrimeRevenue System that reflects any claims of Company related to the
provision of goods and services by Supplier to Company, such as claims related
to shipment, delivery, damage, defect, performance, failure to meet
specifications, or failure to meet expressed or implied warranties.
"Deemed Funding Date" shall have the meaning set forth in
Section 2(k)(vii).
"Discount Rate" shall mean, with respect to an Approved Receipt to be
Funded by GMAC CF in an Approved Currency, any of the rates by which the Trade
Payables Fee (expressed as a percentage of the Gross Amount with respect to
such Approved Receipt) is to be calculated as agreed with the applicable
Participating Supplier with respect to Approved Receipts payable in such
Approved Currency.
"Electronic Transmission" shall mean a method of electronically
transmitting information between GMAC CF and Company (including, without
limitation, a Summary Report) for the purposes contemplated by this Agreement,
which method shall be as mutually agreed by GMAC CF and Company.
"Eligible Supplier" shall mean a Supplier authorized by Company, in
writing, to participate in the Program and have a US domestic bank account.
"Erroneous Payment" shall have the meaning set forth in Section 2(k)(vii).
"Express Currency" shall have the meaning set forth in Section 9(f).
"Final Approved Receipt Payment Date" shall mean, with respect to any
Approved Receipt, the last Business Day on which an Approved Receipt may be
Funded and a Trade Payables Fee is due and payable in respect thereof.
"Financial Statements" shall mean the consolidated income statement,
balance sheet and statement of cash flows of Company, internally prepared for
each fiscal quarter, and audited for each fiscal year, prepared in accordance
with GAAP.
"Fund" (or "Funds" or "Funded" or "Funding") shall mean the advance of
funds to a Participating Supplier in an Approved Currency by GMAC CF in
accordance with the terms hereof.
"GMAC CF Account" shall mean the bank account(s) designated in writing
by GMAC CF from time to time for the purposes of this Agreement.
"GMAC CF Event of Default" shall have the meaning set forth in
Section 6(b).
"GMAC CF Funded Amount" shall mean the amount GMAC CF has Funded in
respect of the Net Funded Amount of any Approved Receipt on or before any
applicable Ordinary Payment Date.
"GMAC CF/PrimeRevenue System" shall mean the combination of
GMAC CF/PrimeRevenue Software and services which GMAC CF/PrimeRevenue offers to
Company, which enables the Company Suppliers to view Payment Obligations,
settle Payment Obligations and conduct related transactions as described in
Exhibit A.
"GMAC CF Termination Notice" shall have the meaning set forth in
Section 8(c).
"Goods and Services" shall mean goods and/or services provided by a
Participating Supplier to Company.
"Gross Amount" shall mean, with respect to an Approved Receipt, the
total amount of such Approved Receipt due to a Participating Supplier on the
Ordinary Payment Date (including, without limitation, all taxes, freight and
other charges) as set forth on a Summary Report.
"Late Payment" shall have the meaning set forth in Section 3(c).
"Late Payment Rate" shall be the rate per annum that is equal to
LIBOR + 3.00%, based on a 360 day year.
"LIBOR" shall mean the London Interbank Offered Rate for the period of
one month, as published in The Wall Street Journal, computed and averaged on a
monthly basis and adjusted for reserve.
"Material Adverse Effect" shall mean a material adverse effect on
(i) the business, assets, operations, prospects or financial or other
conditions of Company, (ii) Company's ability to pay or perform the obligations
under this Agreement, or (iii) GMAC CF's rights and remedies under this
Agreement.
"Net Funded Amount" shall mean, with respect to any Approved Receipt,
the Gross Amount less the applicable Trade Payables Fee.
"Ordinary Payment Date" shall mean, with respect to an Approved
Receipt, the date as Notified by Company to GMAC CF in the Summary Report as
the date such Approved Receipt would have been paid by Company but for this
Program, which date shall not be later than the due date.
"Outstanding Funded Amount" shall mean, at any time, the aggregate of
all Approved Receipts that GMAC CF Funded that have not been repaid by Company
in accordance with this Agreement. For the purposes of the foregoing, any
payments received by GMAC CF from Company (i) after 2:00 p.m. on any Business
Day or (ii) at any time on a day that is not a Business Day, shall be deemed to
have been made on the next Business Day.
"Paid Approved Receipt" shall mean an Approved Receipt for which
GMAC CF shall have Funded the Net Funded Amount thereof on or before any
applicable Ordinary Payment Date.
"Participating Supplier" shall mean any Eligible Supplier who shall be
a party to a Supplier Agreement.
"Pep Boys Debit Account" shall mean any bank account(s) designated in
writing by Company from time to time against which GMAC CF will debit payment
of the Gross Amount of each Approved Receipt in the Approved Currency on the
Ordinary Payment Date.
"Person" or "person" shall mean any individual, sole proprietorship,
partnership, corporation (including, without imitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as
amended), limited liability company, limited liability partnership, business
trust, unincorporated association, joint stock company, trust, joint venture,
or other entity or any government or any agency or instrumentality or political
subdivision thereof.
"Program" shall mean the Trade Payables Program established under this
Agreement as some relate to Company and its Suppliers only.
"Receipt" shall mean any receipt, invoice or other payment instructions
relating to Goods and Services.
"Settlement Date" shall mean the tenth (10th) Business Day of each
calendar month.
"Shortfall" shall have the meaning set forth in Section 3(c).
"Summary Report" shall mean a weekly data file prepared by or on behalf
of Company as required by GMAC CF and in a form acceptable to GMACCF.
"Summary Report Effective Date" shall mean with respect to a Summary
Report (i) the business day following receipt by GMAC CF, if the Report is
received by 2:00 p.m. EST, and (ii) the second business day following receipt,
if Report is received after 2:00 p.m. EST.
"Supplier" shall mean any Person that supplies Goods and Services to
Company.
"Supplier Agreement" shall mean an agreement negotiated between
GMAC CF, and a Supplier substantially in the form of Exhibit B attached hereto,
which sets forth, among other provisions, trade payables terms and related
Trade Payables Fees negotiated by GMAC CF with such Supplier. Supplier will
not be obligated to enter into such Supplier Agreements or obligated to choose
early payment on all or any invoices.
"Term" shall have the meaning set forth in Section 8.
"Trade Payables Fee" shall mean, with respect to any Approved Receipt,
the Gross Amount multiplied by the applicable Discount, based upon the Trade
Discount Schedule as set forth in the Supplier Agreement.
"US Dollars", "US$", "Dollars" and "$" shall mean lawful currency of
the United States of America.
(b) Interpretation.
(i) Any reference in this Agreement to (A) "Agreed" shall
mean as agreed from time to time, and (B) "Notified" or "Notification" shall
mean as notified by written notice received by the intended recipient not later
than noon on the day prior to the time when such Notification is intended to
become effective. In respect of any Notification received after such time, the
recipient shall use its reasonable endeavors to comply with such Notification
but shall be under no obligation to the other if it nevertheless fails to do
so;
(ii) This Agreement or any other agreement or document shall
be construed as a reference to this Agreement or, as the case may be, such
other agreement or document as the same may have been, or may from time to time
be, amended, varied, replaced or supplemented; and
(iii) Headings, Clause and Exhibit headings are for ease of
reference only.
2. TRADE PAYABLES PROGRAM
(a) Approval of Suppliers by Company. Within thirty (30) days from
the date hereof, Company shall supply to GMAC CF a list of the initial
Suppliers that it has decided shall be Eligible Suppliers for the purposes of
this Program. At all times, Company reserves the right to choose which
Suppliers will be eligible for the Program; accordingly, such list may be
amended from time to time by Company giving written notice to GMAC CF and
separately identifying the additions and deletions. Such amendments shall
become effective immediately upon such Notification being received by GMAC CF
but without prejudice to the respective responsibilities of both Company and
GMAC CF under this Agreement in respect of any actions taken by GMAC CF prior
to receipt of such Notification or within a reasonable time thereafter and
initiated by GMAC CF under the Program prior to receipt of such Notification.
Company shall be solely responsible for its decision as to whether a Supplier
shall become an Eligible Supplier or shall cease to be an Eligible Supplier and
for the timing of all such decisions. Any information given by GMAC CF to
Company in relation to any Supplier for the purpose of assisting Company in
determining whether a Supplier shall become an Eligible Supplier or whether
such information was obtained by GMAC CF in connection with the Program or
otherwise shall be given in good faith but without any responsibility on the
part of GMAC CF. Notwithstanding the foregoing, in the event GMAC CF supplies
information to Company concerning Suppliers, it shall only do so in compliance
with all applicable data privacy laws.
(b) Negotiation of Supplier Agreements with Eligible Suppliers.
Company hereby authorizes GMAC CF to contact, in coordination with Company,
Eligible Suppliers and to negotiate Supplier Agreements. Such authority may be
revoked by Company in respect of individual Suppliers (but not in respect of
the whole Program) by written notice received by GMAC CF at any time prior to
GMAC CF entering into such agreement. Discount Rates and Service Fees are set
forth in Exhibit A, Company will be notified of any changes to the Discount
Rates or Service Fees.
(c) Maximum Number of Suppliers. The maximum number of
Participating Suppliers will not exceed 700 at any one time.
(d) Removal of Participating Suppliers. At any time, Company
shall, upon three (3) Business Days notice to GMAC CF, have the right to remove
a Participating Supplier and terminate or cause GMAC CF to terminate the
related Supplier Agreement. In addition, following written notice to Company,
GMAC CF shall have the right but not the obligation, and in its sole
discretion, to remove a Participating Supplier and to terminate the related
Supplier Agreement for just cause. GMAC CF shall give Company three (3)
business days Notice of any decision to remove a Supplier, and upon the
expiration of three (3) business days Company shall be solely responsible for
the payment of any Receipts received by Company and Company shall be free to
enter into its own arrangement with such Participating Supplier.
Notwithstanding the foregoing, removal of any Participating Supplier shall not
be effective with respect to any Summary Report received by GMAC CF prior to
the removal or with respect to any Approved Receipt listed on any such Summary
Report, and shall not diminish or impair the obligation of Company to remit to
GMAC CF the Gross Amount of any such Approved Receipt in accordance with the
terms hereof.
(e) Approval of Marketing Material. All standard forms of written
sales and marketing materials intended for use by GMAC CF in connection with
the Program shall be subject to approval by Company prior to it being used,
which approval by Company shall not be unreasonably withheld or delayed.
(f) No Liability for Success of Program. GMAC CF shall have no
liability to Company for any failure by GMAC CF to contact, negotiate or reach
an agreement for a Supplier Agreement with an Eligible Supplier. Nothing
herein shall be construed as a guarantee or commitment on the part of either
Company or GMAC CF as to the number of Suppliers which will participate in the
Program, and Company and GMAC CF acknowledge that any participation by an
Eligible Supplier in the Program shall be at such Eligible Supplier's sole
discretion.
(g) Provision of Information to Company. GMAC CF shall furnish to
Company a copy of each Supplier Agreement promptly after such agreement has
been executed and delivered by GMAC CF and the respective Eligible Supplier and
shall promptly notify Company of any amendments to such agreements.
(h) Changes by Company to Terms of Payment. Company may, in the
ordinary course of business, agree to changes to its terms of payment with
Eligible Suppliers or Participating Suppliers provided such terms do not render
any outstanding Supplier Agreement void or otherwise unenforceable and further
provided that payment due date be no more than 120 days from invoice date. No
payment due date may exceed 120 days unless prior written approval is obtained
from GMAC CF. No other change will be effective against GMAC CF until GMAC CF
receives Notice of such change. Notwithstanding the foregoing, Company shall
not alter payment terms on Approved Receipts that have been uploaded into the
GMAC CF/PrimeRevenue System.
(i) Systems Integration; Receipt Processing; Summary Reports;
Program Management. Promptly after the date hereof, GMAC CF and Company will
integrate Company's disbursement system with GMAC CF/PrimeRevenue System for
the Program. GMAC CF and Company will each be responsible for their own
expenses incurred as a result of the mutually agreed upon implementation
procedure (including technical interfaces and data transmission requirements).
Any product (including any software) developed by GMAC CF and/or Company in
connection with such integration (including without limitation GMAC CF's
interface with Company's accounts payable system) shall be the exclusive
property of GMAC CF; however, any modifications to such accounts payable system
effected to accommodate GMAC CF's interface therewith shall be the exclusive
property of Company. Company's non-exclusive license to use the
GMAC CF/PrimeRevenue System shall terminate upon the termination of the
Program.
(j) Company Approval of Receipts. Company shall approve for
payment all Receipts for Participating Suppliers as soon as practicable. Upon
approval for payment by Company of a Receipt of a Participating Supplier,
Company shall list such Receipt on a Summary Report, and at such times as shall
be agreed Company shall transmit a Summary Report listing all such Approved
Receipts, via Electronic Transmission, to GMAC CF at such location as GMAC CF
may specify from time to time. Each Receipt listed on a Summary Report shall
constitute an "Approved Receipt" for all purposes of this Agreement. GMAC CF
may rely on the accuracy of all information contained in any Summary Report for
all purposes of this Agreement. Delivery by Company to GMAC CF of a Summary
Report shall be deemed to constitute an irrevocable approval from Company for
GMAC CF to Fund (by making payment on behalf of Company of) each Approved
Receipt listed on such Summary Report at such time as a request is made by a
Participating Supplier in an amount up to the Net Funded Amount.
(k) No Liability on GMAC CF. With respect to each Approved
Receipt, Company acknowledges that any claim or recourse in connection with
the Goods and Services which are the subject of such Receipt, including,
without limitation, any claim based on shipment, delivery, conformity to
specifications, damage, incompleteness, or any express or implied warranty,
shall be to the Participating Supplier, not GMAC CF. Without limiting the
rights of Company under this Agreement, Company agrees that GMAC CF shall have
no duty, obligation or liability to any Supplier under this Agreement or any
Supplier Agreement or by reason of the performance by GMAC CF of any of its
obligations hereunder or thereunder. Company agrees that any Funding by
GMAC CF hereunder or under any Supplier Agreement is discretionary and in no
event will GMAC CF be required to Fund more than the Gross Amount of any
Approved Receipt to any Participating Supplier.
(l) Funding of Approved Receipts.
(i) Company hereby authorizes GMAC CF to, and GMAC CF
shall, in its discretion, Fund the Net Funded Amount of each Approved Receipt
within three (3) Business Days of a Participating Supplier notifying GMAC CF
by Electronic Transmission of such Participating Supplier's election to receive
payment of the Net Funded Amount as to a particular Approved Receipt.
(ii) When Funding an Approved Receipt, GMAC CF shall provide
to the Participating Supplier such information as the Participating Supplier
shall reasonably require to record such transaction in its records.
(iii) GMAC CF shall be considered to have Funded an Approved
Receipt when the Gross Funded Amount thereof less the Trade Payables Fee is
paid by GMAC CF to a Participating Supplier.
(iv) GMAC CF shall have no obligation to (but at its
election may) Fund any Approved Receipts pursuant to this Agreement if (A) such
Approved Receipt is not payable in any Approved Currency or (B) a Company
Default shall have occurred, or (C) the aggregate Outstanding Funded Amount at
the time exceeds, or would upon such funding exceed $20 Million, or (D) GMAC CF
received a written notice from Company at least three (3) Business Days prior
to GMAC CF's Funding of such Approved Receipt stating that GMAC CF is not to
Fund such Approved Receipt.
(v) If any of the information set forth on a Summary Report
delivered to GMAC CF by Company with respect to any Receipt or payment item
listed thereon shall be incorrect or inaccurate in any respect and GMAC CF
shall nevertheless Fund such Receipt or payment item in accordance with such
Summary Report, then such Receipt or payment item shall, as between GMAC CF,
and Company, be deemed for all purposes of this Agreement to be an Approved
Receipt having the terms described in such Summary Report.
(vi) In determining the Final Approved Receipt Payment
Date(s) with respect to any Approved Receipt, GMAC CF shall be entitled to
utilize, as the date that such Approved Receipt is due and payable to the
Supplier, the Ordinary Payment Date with respect to such Approved Receipt.
(vii) In the event that GMAC CF shall make an Erroneous
Payment to any Participating Supplier, the Company shall take all reasonable
actions to assist GMAC CF in recovering such payment ("Erroneous Payment") from
such Participating Supplier. GMAC CF shall thereafter be entitled (upon at
least two (2) Business Days prior written notice to Company) not to Fund, up to
the amount of the Erroneous Payment, all or any portion of the Net Funded
Amount of any future Approved Receipts of such Participating Supplier; however,
the Net Funded Amount of each Approved Receipt not Funded by GMAC CF (as
provided above) shall nevertheless be deemed, for all purposes of this
Agreement, to have been Funded by GMAC CF on the earliest date permitted
hereunder. If there are no additional Approved Receipts for such Participating
Supplier, GMAC CF shall incur any and all costs and expenses associated with
making the Erroneous Payment, including the Erroneous Payment itself.
(m) Authorization. During the Term, Company authorizes GMAC CF to:
(i) execute, Supplier Agreements, and (ii) terminate, modify, or amend, any
Supplier Agreement except to the extent prohibited by this Agreement.
3. PAYMENTS AMONG GMAC CF AND COMPANY
(a) Company, jointly and severally, unconditionally promises to,
and shall be responsible to remit on or before the Ordinary Payment Date with
respect thereto in payment to GMAC CF, the Gross Amount of each Approved
Receipt in the Approved Currency in which such Approved Receipt is denominated
without set off or deduction and to provide to GMAC CF such information by
Electronic Transmission containing such information and in such format as shall
from time to time be agreed. Company further agrees that remittances required
hereunder may be made by GMACCF via debits to the Pep Boys Debit Account
referred to in 3.(l) below.
(b) Company shall transfer to the GMAC CF Account all amounts due
to GMAC CF under this Agreement so that GMAC CF receives immediately available
funds on the Ordinary Payment Date.
(c) In the event of the payment by Company for any reason being
either for less than the Gross Amount of the Approved Receipt (any such
underpayment being a "Shortfall") or in the event of such payment being
received by GMAC CF later than the relevant Ordinary Payment Date (a "Late
Payment"), the provisions of Section 3(cd) shall apply.
(d) Notwithstanding that Shortfalls constitute a Default under
Section 6 and, whether or not GMAC CF has called a Default under Section 6 or
any other Section, in the event of a Late Payment or a Shortfall, Company shall
pay to GMAC CF a sum equal to interest calculated at the rate of Late Payment
Rate for the Approved Currency in which such Approved Receipt is denominated
for the period commencing with (and including) the Ordinary Payment Date and
ending (but excluding) the date upon which the repayment is received by
GMAC CF. A forty-eight (48) hour grace period will be granted by GMAC CF if the
Late Payment or Shortfall is caused by events beyond the reasonable control of
Company, including, but not limited to, acts of God, embargoes, governmental
restrictions, riots, insurrection, wars, or other military action, acts of
terrorism, civil disorders, rebellion, fires, floods, vandalism, or sabotage.
Market conditions and/or fluctuations (including a downturn of Company's
business) will not be deemed events beyond the reasonable control of Company
for the purposes of this 48 hour grace period. Company will notify GMAC CF in
writing of the details as to the event(s) that caused the Late Payment or
Shortfall for approval of the 48 hour grace period on a case by case basis.
(e) The obligations of Company under Section 3(d) shall continue to
apply to the extent of any Shortfall until it is paid by Company under the
provision of Section 3(f).
(f) In the event of a Shortfall, Company shall, within five (5)
Business Days of a request from GMAC CF in this regard, pay the amount of such
Shortfall to GMAC CF.
(g) All payments and remittances by or on behalf of Company
hereunder shall be made in the Approved Currency in which the Receipt to which
it relates is denominated and without abatement, reduction, diminution, setoff,
defense, or counterclaim whatsoever, may have against any party (whether
arising out of this Agreement or otherwise) or that Company may have against
any third parties and regardless of any claims that any third parties may have
against Company. All payments hereunder shall be made to the GMAC CF Account
for the appropriate Approved Currency of each payment so that such payment
shall be received in cash or other immediately available funds in such account
on the date upon which a payment is required to be made hereunder.
Notwithstanding the foregoing, if the Company has submitted a Credit Memo, the
value of the Credit Memo shall be applied to the Payment Obligation that
relates to the goods or services subject to the Company's claims if the Payment
Obligation has not been selected for early payment by the Supplier as of the
date of such Credit Memo, and, if the Payment Obligation has been selected for
early payment by the Supplier, as of the date the Credit Memo is submitted, the
Credit Memo shall be applied to future Payment Obligations of Customer to
Supplier.
(h) If any sum (other than a Late Payment by Company under
Section 3(b)) is not remitted by either Company within three (3) Business Days
after the date upon which it is provided in this Agreement that it is to be
paid, (and notwithstanding that such failure to pay constitutes a Default under
Section 6) then there shall be payable to GMAC CF a late charge on such overdue
amount for each day from (and including) the due date thereof until (but
excluding) the date of payment of such amount, which late charge shall be
calculated daily based on the a floating rate per annum equal to the Late
Payment Rate applicable to each day from the due date thereof until the date of
payment of such overdue amount, and shall be paid no later than the first (1st)
Business Day of the week immediately following the week during which such late
charge accrued.
(i) GMAC CF is authorized to record on its books and records the
date and amount of each Approved Receipt Funded and each payment thereof and
such recordation shall constitute prima facie evidence of the accuracy of the
information so recorded.
(j) If any sums payable to or collected by GMAC CF hereunder are
deemed to constitute interest, in no event shall the amount of any such
interest exceed the maximum rate or amount permitted under any applicable law
or regulation, and if any part of this Agreement is in contravention of any
such law or regulation, such part shall be deemed amended to conform thereto.
Any such excess interest which may have been collected by GMAC CF shall be
applied as a credit against any lawful interest due and not yet paid, then
applied to any other lawful obligations due from Company" to GMAC CF and
thereafter refunded to Company or as a court of competent jurisdiction may
otherwise order.
(k) In addition to the payments owed by Company as detailed above,
GMAC CF reserves the right to establish a mutually acceptable service fee for
specific services that are not included in the program or waived by GMAC CF.
Further Company will be responsible for any cost associated with modifying its
operating systems or developing an interface file that extracts data from
Company's accounts payable system to support the early pay program.
(l) Company shall establish a Pep Boys Debit Account that GMAC CF
is authorized to debit for the Gross Amount of each Approved Receipt in the
Approved Currency on the Ordinary Payment Date for remittances required
under 3.(a) above.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF COMPANY; JOINT AND SEVERAL
LIABILITY; APPOINTMENT OF COMPANY
(a) Company hereby represents and warrants to GMAC CF as follows:
(i) Company is a corporation, duly organized, validly
existing and in good standing under the laws of and is authorized to do
business in the jurisdictions in which its ownership of its property or conduct
of its business legally requires such authorization.
(ii) The execution, delivery, and performance by Company
of this Agreement and the other documents to which it is a party (A) are within
Company's corporate power and have been duly authorized by all necessary
corporate action on the part of Company and will not result in a breach of any
organizational document of Company; (B) will not violate any law or regulation
or any judgment, order of decree applicable to Company or by which Company is
bound; (C) will not require any registration with, consent or approval of,
notice to, or any action by, any other Person; and (D) will not result in a
breach of any of the terms or conditions of or constitute a default (with due
notice or lapse of time or both) under any agreement or instrument to which
Company is a party or by which Company may be bound or result in the
occurrence of an event for which any holder of indebtedness of Company may
declare the same due and payable under any indenture, agreement or instrument
to which Company is a party or by which Company may be bound.
(iii) This Agreement has been duly executed and delivered by
Company and constitutes the legal, valid and binding obligation of Company,
enforceable against Company in accordance with its terms.
(b) Company covenants and agrees that:
(i) Company shall not use any name, corporate logo or
trademarks of GMAC CF or any of its affiliates in any manner in connection with
the Program, including press releases or filings with any governmental entity,
without the prior written consent of GMAC CF and nothing set forth herein shall
be or be deemed to be a license or consent for Company to use the logos or
trademarks of GMAC CF or any of its affiliates;
(ii) Promptly on becoming aware of any event of default
under any Company Material Contract, Company shall notify GMAC CF thereof in
writing and shall specify the steps, if any, taken or to be taken to remedy
such occurrence; and
(iii) Without limiting any rights or remedies that Company
may have against any Supplier, (A) each Approved Receipt listed on a Summary
Report will constitute a bona fide obligation of Company to pay to the
Participating Supplier listed on such Summary Report the amount set forth on
such Summary Report for such Receipt in consideration for Goods and Services
provided by such Participating Supplier to (and received and accepted by)
Company, (B) each Person listed on a Summary Report as a Participating Supplier
will, at the time of delivery of such Summary Report to GMAC CF, be a
Participating Supplier, (C) Company have not and will not pay or initiate
payment of any Approved Receipt listed on a Summary Report, (D) Company will
not list on any Summary Report any Approved Receipt that shall have been
listed on a Summary Report previously delivered to GMAC CF, (E) Company has not
received any notice to pay any Approved Receipt to any Person other than the
Participating Supplier; (F) the information set forth on each Summary Report
delivered to GMAC CF shall be true and accurate in all respects and (G) no
Funding of any Approved Receipt by GMAC CF shall violate applicable law.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GMAC CF
(a) GMAC CF hereby represents and warrants to Company as follows:
(i) GMAC CF is a limited liability corporation, duly
organized, validly existing and in good standing under the laws of Delaware.
(ii) The execution, delivery, and performance by GMAC CF of
this Agreement is within GMAC CF's limited liability company's power and have
been duly authorized by all necessary limited liability company's action on the
part of GMAC CF and will not result in a breach of any organizational document
of GMAC CF.
(iii) This Agreement has been duly executed and delivered by
GMAC CF and constitutes the legal, valid and binding obligation of GMAC CF,
enforceable against GMAC CF in accordance with its terms.
(b) GMAC CF covenants and agrees that:
(i) GMAC CF shall not use any name, corporate logo or
trademarks of Company or any of its respective affiliates in any manner in
connection with the Program, including press releases or filings with any
governmental entity, without the prior written consent of Company, and nothing
set forth herein shall be or be deemed to be a license or consent for GMAC CF
to use the logos or trademarks of Company or any of its respective affiliates;
and
(ii) GMAC CF will not (A) make any representations to any
Supplier that participation in the Program is required by Company or would in
any way benefit Supplier in its relationship with Company (other than any
economic benefit that is generally available under the Program) or (B) assume
any duty or obligation for, on behalf of, or in the name of Company, other than
activities in connection with the Program.
6. EVENTS OF DEFAULT
(a) The occurrence of any one or more of the following events
(regardless of the reason therefore) shall constitute a "Company Event of
Default" hereunder:
(i) The failure of Company to make any payment hereunder
(including without limitation, any payment in respect of any Approved Receipt
or any payment pursuant to Section 3 or under any of the other documents when
due and payable, which failure continues for three (3) Business Days after the
giving of notice by GMAC CF to Company thereof in accordance with Section 9(g).
(ii) The failure of Company to perform, keep or observe any
term, covenant or provision of this Agreement when due to be performed, kept or
observed, which failure continues for sixty (60) days after the giving of
notice by GMAC CF to Company thereof in accordance with Section 9(g).
(iii) The failure of any representation or warranty herein or
in any other document, or in any written statement provided pursuant hereto or
thereto, made by Company to be true and correct in all material aspects.
(iv) A default under any Company Material Contract, which
default remains uncured or unremedied for thirty (30) days and which default
has or could reasonably be expected to have a Material Adverse Effect on
Company or the business of Company.
(v) Failure by Company to furnish financial information
when due or when requested.
(vi) Any change in Company's condition or affairs
(financial or otherwise) which in the good faith opinion of GMAC CF impairs
the ability of Company to perform its obligations under the Program or this
Agreement.
(vii) The occurrence of any Bankruptcy Event as to Company.
(b) The occurrence of any one or more of the following events
(regardless of the reason therefore) shall constitute a "GMAC CF Event of
Default" hereunder:
(i) The failure of GMAC CF to perform, keep or observe any
term, covenant or provision of this Agreement or of any other document when due
to be performed, kept or observed, which failure continues for one hundred and
twenty (120) days after the giving of notice by Company to GMAC CF thereof in
accordance with Section 9(g).
(ii) The failure of any representation or warranty herein or
in any written statement provided pursuant hereto, made by GMAC CF to be true
and correct in all material aspects.
(iii) The occurrence of any Bankruptcy Event as to GMAC CF.
7. RIGHTS AND REMEDIES
(a) If a Company Event of Default shall have occurred, GMAC CF may
take any one or more of the following actions: (i) terminate this Agreement and
the Program; (ii) declare by notice to Company, all or any portion of the
Company Obligations (including, without limitation, the Gross Amounts with
respect to all Approved Receipts funded by GMAC CF) due from Company hereunder
(together with interest and late charges due hereunder which will continue to
accrue as provided by Section 3 (c) or (f), as the case may be, until paid, if
applicable) to be immediately due and payable, including, without limitation,
by means of acceleration of the Ordinary Payment Dates (to the extent that such
dates have not yet occurred) with respect to all Approved Receipts that were
previously funded by GMAC CF; and/or (iii) exercise any rights and remedies
provided to GMAC CF at law or equity; provided that, upon the occurrence of a
Bankruptcy Event with respect to Company, (A) this Agreement shall
automatically and without notice or action terminate, (B) the amount of Company
Obligations to GMAC CF hereunder shall become automatically and immediately due
and payable (and all Ordinary Payment Dates hereunder that shall not yet have
occurred shall automatically and immediately be accelerated to the date of the
Bankruptcy Event), and (C) GMAC CF shall have no obligation whatsoever to Fund
any Approved Receipt as reflected in any Summary Report, including any Summary
Report received prior to the commencement of such Bankruptcy Event.
(b) If a GMAC CF Event of Default shall have occurred, Company may
take any one or more of the following actions (i) terminate this Agreement and
the Program; and (ii) declare by notice to GMAC CF all or any portion of the
amounts due from GMAC CF hereunder to be due and payable; and/or (iii) exercise
any rights and remedies provided to Company at law or equity; provided that,
upon the occurrence of a Bankruptcy Event with respect to GMAC CF, the amount
of any obligations of GMAC CF to Company hereunder shall become automatically
and immediately due and payable.
(c) The rights and remedies of the parties under this Agreement
shall be cumulative and nonexclusive of any other rights and remedies which
they may have under any other agreement by operation of law or otherwise.
8. TERM.
(a) The term of the Agreement shall be for two (2) years from the
date of its execution. The Agreement shall automatically renew for an
additional one (1) year term unless GMAC CF or Company provides written
notification of intent to not renew at least sixty (60) days in advance of the
date of the renewal. Any termination of this Agreement in accordance with the
terms hereof shall be without prejudice to the respective rights and
obligations of Company and GMAC CF in respect of all Receipts Funded by GMAC CF
prior to such termination and all such rights, obligations, duties, indemnities
and liabilities shall survive such termination.
(b) In addition to Company's right to terminate this Agreement in
accordance with Section 7(b) above, Company may terminate the Program and this
Agreement for any reason or for no reason upon sixty (60) calendar days'
written notice (such notice, a "Company Termination Notice") to GMAC CF except,
within the first contract year (unless Termination is in accordance with
Section 7(b)) Company shall pay to GMAC CF a Termination Fee equal to $50,000.
Upon the delivery of a Company Termination Notice:
(i) GMAC CF shall have no obligation to contact or
negotiate with Suppliers with respect to proposed Supplier Agreements or Trade
Terms and Company shall notify all Suppliers that the Program will be
terminated.
(ii) GMAC CF shall have no obligation to Fund Approved
Receipts for which the Summary Receipt Date occurs on or after the fiftieth
(50th) calendar day following the date of the delivery of such Company
Termination Notice.
(iii) Company shall not transmit Summary Reports to GMAC CF
after the fiftieth (50th) calendar day following the date of delivery of such
Company Termination Notice.
(iv) Company shall pay to GMAC CF all of the amounts
(including, without limitation, the Gross Amounts of all Approved Receipt
Funded by GMAC CF) due from Company under this Agreement (together with
interest, if applicable) on the earlier of (A) the date on which such amount
would have been due but for such termination, or (B) sixty (60) calendar days
from the date of delivery of such Company Termination Notice.
(c) In addition to GMAC CF's right to terminate this Agreement in
accordance with Section 7(a) above, GMAC CF may terminate the Program and this
Agreement immediately upon the occurrence of a Company Event of Default or upon
sixty (60) calendar days' written notice (such notice, a "GMAC CF Termination
Notice") to Company. Upon the delivery of a GMAC CF Termination Notice:
(i) GMAC CF shall have no obligation to contact or
negotiate with Suppliers with respect to proposed Supplier Agreements or Trade
Terms and Company shall notify all Suppliers that the Program will be
terminated.
(ii) GMAC CF shall have no obligation to Fund Approved
Receipts following the date of the delivery of such GMAC CF Termination Notice.
(iii) Company shall not transmit Summary Reports to GMAC CF
after the date of delivery of such GMAC CF Termination Notice.
(iv) Company shall pay to GMAC CF all of the amounts
(including, without limitation, the Gross Amounts with respect to all Approved
Receipts Funded by GMAC CF) due from Company under this Agreement on the
earlier of (A) the date on which such amount would have been due but for such
termination, or (B) sixty (60) calendar days from the date of delivery of such
GMAC CF Termination Notice.
9. MISCELLANEOUS
(a) Implementation. Each of GMAC CF and Company shall appoint an
individual who will be responsible for the implementation and management of its
particular responsibilities under the Program. In addition Company shall
support two individuals to assist in the marketing and training of Suppliers to
use this system. No such employee shall be authorized or entitled to amend,
modify or waive any provisions of this Agreement.
(b) Assignment; Participations.
(i) Neither party may assign its rights and obligations
under this Agreement without the consent of the other; except that GMAC CF may
assign this Agreement (or any portion thereof) without Company's consent to any
affiliate or subsidiary of GMAC CF or pursuant to a merger, reorganization,
sale of all or substantially all of the assets of GMAC CF or sale of sufficient
stock to constitute a change of control. This Agreement shall be binding on
the parties and their respective permitted successors and permitted assigns.
Any assignment in violation of this Section 9(b) shall be void. Company
acknowledges that GMAC CF reserves the right to use subcontractors or other
third parties to fulfill its obligations under this Agreement, the Program, the
Supplier Agreements and any of the transactions hereunder or thereunder,
provided GMAC CF shall remain primarily liable for the performance of its
obligations under this Agreement, the Program, the Supplier Agreements by such
subcontractors or third parties.
(ii) GMAC CF may sell participations to one or more banks,
financial institutions or other entities in or to all or a portion of its
rights and obligations under this Agreement and the Program; provided, that,
(A) GMAC CF's obligations under this Agreement and the Program shall remain
unchanged, (B) GMAC CF shall remain solely responsible to the other parties
hereto for the performance of such obligations, and Company, and each
Participating Supplier shall continue to deal solely and directly with GMAC CF
in connection with such GMAC CF's rights and obligations under this Agreement
and the Program, and (C) the participant shall not have any rights under this
Agreement (the participant's rights against GMAC CF in respect of such
participation to be those set forth in the agreement executed by GMAC CF in
favor of the participant relating thereto) and all amounts payable by Company
hereunder shall be determined as if GMAC CF had not sold such participation.
(c) No Waiver. (i) No failure on the part of GMAC CF to require
strict performance by Company of any provision of this Agreement shall waive,
affect or diminish any right thereafter to demand strict compliance and
performance therewith, and (ii) no failure on the part of Company to require
strict performance by GMAC CF of any provision of this Agreement shall waive,
affect or diminish any right thereafter to demand strict compliance and
performance therewith.
(d) Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
(e) Conflict of Terms. Except as otherwise provided in this
Agreement, if any provision contained in this Agreement is in conflict with, or
inconsistent with, any provision in any of the other documents or agreements
executed and delivered in connection herewith, the provisions contained in this
Agreement shall govern and control.
(f) Changes in Currency. If at any time more than one currency or
currency unit are recognized by the central bank of, or having jurisdiction in,
any country as the lawful currency of that country: (i) for so long as the
currency or currency unit in which the provisions of and obligations under this
Agreement are expressed (the "Express Currency") shall remain so recognized,
those provisions and obligations shall remain denominated and paid or satisfied
in that currency or currency unit; (ii) if the Express Currency ceases to be so
recognized, any reference in this Agreement to that currency or currency unit
shall be translated into and become payable in the currency or currency unit of
that country designated by GMAC CF; (iii) any translation from one currency or
currency unit to another shall be at the official rate of exchange recognized
by the central bank for the conversion of that currency or currency unit into
the other, rounded up or down by GMAC CF in the manner officially prescribed in
relation to such official rate or, if to the extent not so recognized or
prescribed, in such manner as GMAC CF may reasonably determine; and (iv) if any
change in any currency of a country occurs, this Agreement will be amended to
the extent GMAC CF, after consultation with Company, specifies to be necessary
in light of the change in currency and to put the parties hereto as close as
possible to the same position as they would have been but for such change in
currency.
(g) Notices. Any notice or request hereunder may be given at the
respective addresses set forth below or at such other address as may
hereafter be specified in a notice designated as a notice of change of address
under this Section. Any notice or request hereunder shall be given by hand
delivery, overnight courier, registered or certified mail, return receipt
requested, telex or telegram, subsequently confirmed by registered or certified
mail, or telecopy to the number set out below (or such other number as may
hereafter be specified in a notice designated as a notice of change of address)
with telephone communication to a duly authorized officer of the recipient
confirming its receipt as subsequently confirmed by registered or certified
mail. Any notice or other communication required or permitted pursuant to this
Agreement shall be deemed given (i) when personally delivered to any officer of
the party to whom it is addressed, (ii) on the earlier of actual receipt
thereof or three (3) days following posting thereof by certified or registered
mail, postage prepaid, or (iii) upon actual receipt thereof when sent by a
recognized overnight delivery service, or (iv) upon actual receipt thereof when
sent by telecopier to the number set forth below with telephone communication
confirming receipt and subsequently confirmed by registered, certified or
overnight mail to the address set forth below, in each case addressed to each
party at its address set forth below or at such other address as has been
furnished in writing by a party to the other by like notice:
(A) If to GMAC CF: GMAC COMMERCIAL FINANCE LLC
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
(B) If to Company THE PEP BOYS - MANNY, MOE & XXXX
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: VP - Chief Accounting Officer
cc: General Counsel
Telephone: 000-000-0000
Telecopier: 000-000-0000
(h) Financial Reporting.
(i) Within ninety (90) days after the end of each fiscal
year of Company, Form 10-K, which contains its audited consolidated Financial
Statements and annual reports.
(ii) Within sixty (60) days after the end of each of the
first three fiscal quarters of each fiscal year of Company, Form 10-Q for
Company, which contains its unaudited condensed consolidated balance sheet, its
unaudited condensed consolidated statements of income and its condensed
consolidated statement of cash flows all certified by the Chief Financial
Officer or Treasurer.
(iii) Within ten days after the end of each month reports,
satisfactory in form to GMAC CF, stating the outstanding loan balances arising
under any Company Material Contract together with a statement of Company's
borrowing availability under any company material contract providing a
revolving credit facility.
(iv) Promptly after the sending or filing thereof, Company
shall send to GMAC CF copies of all reports which Company sends to its security
holders generally.
(i) No Agency. Otherwise than as expressly provided in this
Agreement, the performance by each party of its duties and obligations under
this Agreement shall be that of an independent contractor. Without limiting
the obligations of any party hereto to act in good faith to the extent
expressly required in this Agreement, whenever GMAC CF or Company is permitted
or required to take or refrain from taking any action or making any decision
hereunder (including, without limitation, in the case of Company, to Notify
GMAC CF that a Supplier shall cease to be an Eligible Supplier, or in the case
of GMAC CF, in connection with the negotiation of Supplier Agreements), each
party shall have no duty (including any fiduciary duty) or other obligation to
give any consideration to any interest of or factors affecting the other party
or any other Person. The relationship among the parties to this Agreement shall
be strictly contractual in nature and there shall not be any agency, fiduciary
relationship, joint venture or partnership between the parties by reason of
this Agreement or any of the other documents.
(j) Discretion of the Parties. Except as may otherwise be
expressly provided in this Agreement, (i) any consent, approval, determination,
acceptance, decision, election or exercise of any right or option under this
Agreement by any party may be granted, made, provided or effected (or withheld
or not granted, made, provided or effected) by such party in such party's sole
discretion, and (ii) the determination by any party as to whether any event,
circumstance or matter is deemed to be acceptable or satisfactory to such party
shall be as determined by such party in its sole discretion.
(k) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan applied to
contracts to be performed wholly within the State of Michigan. The parties
hereto hereby agree that any judicial proceeding with respect to any of the
this Agreement or the transactions hereunder may be brought in any court of
competent jurisdiction in the State of Michigan, and, by execution and delivery
of this Agreement, the parties hereby waive personal service of any and all
process upon it and consents that all such service of process may be made by
registered mail (return receipt requested) directed to the parties at their
respective address set forth in Section 9(g) and service so made shall be
deemed completed five (5) days after the same shall have been so deposited in
the mails of the United States of America. Each of the parties waives any
objection to jurisdiction and venue of any action instituted hereunder and
shall not assert any defense based on lack of jurisdiction or venue or based
upon forum non conveniens.
(l) Injunctive Relief. Each of the parties hereto recognizes that,
in the event any party fails to perform, observe or discharge any of its
obligations or liabilities under this Agreement, any remedy at law may prove to
be inadequate relief to the other party; therefore, each party, if the other
party so requests, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving that actual damages
are not an adequate remedy.
(m) WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED
TO, OR INCIDENTAL TO, THIS TRADE PAYABLES AGREEMENT OR ANY OF THE DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(n) CONFIDENTIALITY.
(i) Each of the parties hereto understands that some of the
information furnished to the other party pursuant to this Agreement and the
Program may be received by it prior to the time that such information shall
have been made public, and each of the parties hereto hereby agrees that it
will keep, and will direct its officers and employees to keep, all the
information provided to it pursuant to this Agreement and the Program
confidential prior to its becoming public subject, however, to (A) disclosure
to officers, directors, employees, representatives, agents, auditors,
consultants, advisors, lawyers and affiliates of such party, in the ordinary
course of business, (B) disclosure by GMAC CF to such officers, directors,
employees, agents and representatives of a prospective assignee or participant
as need to know such information in connection with the evaluation of a
possible participation in this Agreement and the Program hereunder (who will be
informed of the confidential nature of the material), or (C) the obligations of
the parties hereto or any participant under applicable law, or pursuant to
subpoenas or other legal process, to make information available to governmental
agencies and examiners or to others and the right of such party to use such
information in proceedings to enforce their rights and remedies hereunder or in
any proceeding against any party hereto in connection with this Agreement, the
Program or the transactions contemplated hereunder or thereunder. To the extent
practicable and permissible, each party shall use reasonable, good faith
efforts to notify the other party of the receipt of any subpoena or other legal
process as set forth above and shall permit the other party to seek an
appropriate protective order with respect thereto.
(ii) Notwithstanding anything to the contrary set forth
herein or in any other written or oral understanding or agreement, (A) any
obligations of confidentiality contained herein or any such other understanding
or agreement do not apply and have not applied from the commencement of
discussions between the parties to the tax treatment and tax structure of the
transactions contemplated herein (and any related transactions or
arrangements), and (B) each party (and each of its employees, representatives,
or other agents) may disclose to any and all persons the tax treatment and tax
structuring of the transactions contemplated herein and all materials of any
kind (including opinions or other tax analyses) that are provided to such party
relating to such tax treatment and tax structure, all within the meaning of
Treasury Regulation Section 1.6011-4; provided, that, each party recognizes
that the privilege that it may, in its discretion, maintain with respect to the
confidentiality of a communication relating to the transactions contemplated
herein, including a confidential communication with its attorney or a
confidential communication with a federally authorized tax practitioner under
Section 7525 of the Internal Revenue Code, is not intended to be affected by
the foregoing. Company does not intend to treat the advances and related
transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4). In the event Company determines to take
any action inconsistent with such intention, it will promptly notify GMAC CF
thereof. Company acknowledges that GMAC CF may treat its advances and
financial accommodations hereunder or under the Program as part of a
transaction that is subject to Treasury Regulation Section 1.6011-4 or
Section 301.6112-1, and GMAC CF may file such IRS forms or maintain such lists
and other records as it may determine is required by such Treasury Regulations.
(o) Media Releases/Publicity. (i) Company shall not use GMAC CF's
name or refer to GMAC CF directly or indirectly in any media release, public
announcement or public disclosure relating to this Agreement or the Program or
their subject matter, including in any promotional or marketing materials,
customer lists, referral lists or business presentations without written
consent from GMAC CF for each such use or release. Company may not use any
trademark or service xxxx of GMAC CF without GMAC CF's written consent, which
consent shall be given in GMAC CF's sole discretion, and (ii) GMAC CF shall not
use the name of Company or refer to Company directly or indirectly in any media
release, public announcement or public disclosure relating to this Agreement or
the Program or their subject matter, including in any promotional or marketing
materials, customer lists, referral lists or business presentations without
written consent from Company for each such use or release. GMAC CF may not use
any trademark or service xxxx of Company without Company's written consent,
which consent shall be given in Company's sole discretion. Notwithstanding the
foregoing, GMAC CF acknowledges that the Company will be required to disclose
the entrance into this Agreement on a Form 8-K to be filed with the Securities
and Exchange Commission within 4 days of the execution of this Agreement and
expressly consents to such filing.
(p) DISCLAIMER. EXCEPT AS SET FORTH IN SECTIONS 4 AND 5, NEITHER
GMAC CF NOR Company N MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES IN RESPECT
OF THIS AGREEMENT OR THE PROGRAM AND EACH EXPLICITLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE IN
RESPECT OF THIS AGREEMENT OR THE PROGRAM.
(q) Covenant of Further Assurances. GMAC CF and Company covenant
and agree that, without any additional consideration, GMAC CF and Company shall
execute and deliver any further legal instruments and perform any acts which
are or may become necessary to effectuate the purposes of this Agreement.
(r) Cumulative Remedies. Except as specifically provided herein,
no remedy made available to GMAC CF or Company hereunder is intended to be
exclusive of any other remedy, and each and every remedy shall be cumulative
and shall be in addition to every other remedy provided hereunder or available
at law or in equity.
(s) LIMITATION ON DAMAGES. EXCEPT FOR A BREACH OF SECTION 9(n), IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY
FOR ANY INDIRECT LOSS, INCLUDING TIME, MONEY, GOODWILL, INCIDENTAL, SPECIAL,
EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY
OR CAUSE OF ACTION BASED ON EITHER PARTY'S, OR ANY SUPPLIER'S, USE, INABILITY
TO USE, OPERATE, ADMINISTER OR MODIFY THIS AGREEMENT OR THE PROGRAM OR ANY OF
THE TRANSACTIONS HEREUNDER OR THEREUNDER, INCLUDING, WITHOUT LIMITATION, LOSS
OF USE, LOST BUSINESS, LOST REVENUE, LOST PROFITS, LOST DATA, OR LOST GOODWILL
EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF SUCH DAMAGE. EXCEPT FOR A
PARTY'S OBLIGATION TO PAY THE OTHER PARTY AS SET FORTH IN SECTION 3 AND
SECTION 8(b) ABOVE, A PARTY'S TOTAL LIABILITY FOR PROVEN DIRECT DAMAGES UPON
ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE
AGGREGATE TRADE PAYABLE FEES PAYABLE TO GMAC CF UNDER THIS AGREEMENT. IN
ADDITION, Company SHALL DEFEND AND INDEMNIFY GMAC CF AGAINST ANY DAMAGES, LOSS,
CLAIMS AND COSTS INCURRED BY OR AWARDED AGAINST GMAC CF ARISING OUT OF (i) A
BREACH BY Company OF THEIR RESPECTIVE REPRESENTATIONS, WARRANTIES OR AGREEMENTS
UNDER THIS AGREEMENT, AND (ii) ANY CLAIM OF ANY SUPPLIER OR OTHER THIRD PARTY
RELATED TO THIS AGREEMENT, THE PROGRAM, THE SUPPLIER AGREEMENTS OR ANY OF THE
TRANSACTIONS HEREUNDER OR THEREUNDER EXCEPT THAT THE FOREGOING SHALL EXCLUDE
DAMAGES, LOSS, CLAIMS AND COSTS ARISING AS A RESULT OF GMAC'S BREACH OF ITS
OBLIGATIONS HEREUNDER, CF'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ALL AS
DETERMINED PURSUANT TO A FINAL AND NON-APPEALABLE ORDER OF A COURT OF COMPETENT
JURISDICTION.
(t) Force Majeure. Any delay in or failure of performance by
either party under this Agreement (other than a failure to comply with payment
obligations) will not be considered a breach of this Agreement if and to the
extent caused by events beyond the reasonable control of the party affected,
including, but not limited to, acts of God, embargoes, governmental
restrictions, strikes, riots, insurrection, wars, or other military action,
acts of terrorism, civil disorders, rebellion, fires, floods, vandalism, or
sabotage. Market conditions and/or fluctuations (including a downturn of
Company's business) will not be deemed force majeure events. The party whose
performance is affected by such events will promptly notify the other party,
giving details of the force majeure circumstances, and the obligations of the
party giving such notice will be suspended to the extent caused by the force
majeure so long as the force majeure continues. The time for performance of
the affected obligation hereunder will be extended by the time of the delay
caused by the force majeure event.
(u) Entire Understanding. This Agreement and the documents
executed concurrently herewith contain the entire understanding of the parties
hereto and supersedes all prior agreements and understandings, if any, relating
to the subject matter hereof. Any promises, representations, warranties or
guarantees not herein contained and hereinafter made shall have no force and
effect unless in writing, signed by the respective of each party hereto
officers. Neither this Agreement nor any portion or provisions hereof may be
changed, modified, amended, waived, supplemented, discharged, cancelled or
terminated orally or by any course of dealing, or in any manner other than by
an agreement in writing, signed by the party to be charged. Each of the
parties hereto acknowledges that it has been advised by counsel in connection
with the execution of this Agreement and other documents and is not relying
upon oral representations or statements inconsistent with the terms and
provisions of this Agreement.
(v) Captions. The captions at various places in this Agreement are
intended for convenience only and do not constitute and shall not be
interpreted as part of this Agreement.
(w) Counterparts; Telecopied Signatures. This Agreement may be
executed in any number of and by different parties hereto, on separate
counterparts, all of which when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same agreement. Any
signature delivered by a party by facsimile transmission shall be deemed to be
an original signature hereto.
(x) Construction. The parties acknowledge that each party and its
counsel have reviewed this Agreement and that the normal rule of construction
to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement or any
amendments, schedules or exhibits thereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
/s/The Pep Boys - Manny, Moe & Xxxx
/s/GMAC COMMERCIAL FINANCE LLC
