Exhibit 10.2
October 24, 2003
To those on the attached distribution list
Re: Pep Boys Synthetic Lease Facility
Dear Ladies and Gentlemen,
For purposes of this consent letter (the "Consent Letter"), capitalized terms
used in this Consent Letter and not otherwise defined herein shall have the
meanings assigned to them in Appendix A to that certain Participation Agreement
dated as of August 1, 2003 (as amended, modified, extended, supplemented,
restated and/or replaced from time to time, the "Participation Agreement") by
and among The Pep Boys - Manny, Moe & Jack, a Pennsylvania corporation, The Pep
Boys Xxxxx Xxx & Jack of California, a California corporation and Pep Boys -
Manny, Moe & Jack of Delaware, Inc., a Delaware corporation (jointly and
severally, the "Lessee"); The Pep Boys - Manny, Moe & Jack and the various
parties thereto from time to time as guarantors (subject to the definition of
Guarantors in Appendix A thereto, individually, a "Guarantor" and collectively,
the "Guarantors"); Wachovia Development Corporation, a North Carolina
corporation, (the "Borrower" or the "Lessor"); the various banks and other
lending institutions which are parties thereto from time to time as lenders
(subject to the definition of Lenders in Appendix A thereto, individually, a
"Lender" and collectively, the "Lenders"); and Wachovia Bank, National
Association, a national banking association, as the agent for the Lessor and
the Lenders and respecting the Security Documents, as the agent for the Secured
Parties (in such capacity, the "Agent"). The Rules of Usage set forth in
Appendix A to the Participation Agreement shall apply herein.
Pursuant to Section 28.1 of the Lease, the Agent, with the acknowledgement,
agreement and consent of the Majority Secured Parties as set forth on the
signature pages of this Consent Letter, consents to the changes in the
Incorporated Representations and Warranties, Incorporated Covenants and
Additional Incorporated Terms set forth in the Amendment No. 1 to Amended and
Restated Loan and Security Agreement substantially in the form attached hereto
as Exhibit A (the "Lessee Credit Agreement Amendment No. 1"), provided, this
Consent Letter shall not be effective until waiver or satisfaction of each of
the conditions precedent set forth herein.
Each Credit Party hereby jointly and severally represents, warrants and
covenants with and to each Financing Party, as follows, which representations,
warranties and covenants are continuing and shall survive the execution and
delivery hereof and shall be incorporated into and made a part of the Operative
Agreements (certain capitalized terms used herein and not otherwise defined
herein or in Appendix A to the Participation Agreement are Additional
Incorporated Terms and are incorporated herein from the Lessee Credit Agreement
in accordance with the incorporation provisions set forth in Section 28.1 of
the Lease):
As of the date of any Credit Party entering into the GE Capital Trade
Payables Agreement (as defined in the Lessee Credit Agreement Amendment
No. 1) and after giving effect to such transaction, the aggregate
amount of outstanding Exempted Debt represented by such transaction,
when aggregated with all other outstanding Exempted Debt, shall not
exceed the Exempted Debt Limit, and such transaction is and shall be in
compliance with the terms and conditions set forth in the Pep Boys
Indentures.
This Consent Letter and each other agreement or instrument to be
executed and delivered by any Credit Party hereunder has been duly
executed and delivered by such Credit Party and is in full force and
effect, and the agreements and obligations of each Credit Party
contained herein and therein constitute legal, valid and binding
obligations of each Credit Party enforceable against each Credit Party
in accordance with their terms.
Neither the execution and delivery of the GE Capital Trade Payables
Agreement, nor the consummation of the transactions contemplated by the
GE Capital Trade Payables Agreement, nor compliance with the provisions
of the GE Capital Trade Payables Agreement or instruments thereunder
shall result in (i) the creation or imposition of any lien, claim,
charge or encumbrance upon any of the Collateral, except in favor of
Agent and other Financing Parties or (ii) the incurrence, creation,
assumption of any Indebtedness of any Credit Party, except as expressly
permitted under Section 9.9 of the Lessee Credit Agreement (after
giving effect to this Consent Letter and the Lessee Credit Agreement
Amendment No. 1) and by the other Financing Agreements (as defined in
Lessee Credit Agreement Amendment No. 1).
No court of competent jurisdiction has issued any injunction,
restraining order or other order which prohibits consummation of the
transactions contemplated in respect of the GE Capital Trade Payables
Agreement, and no governmental or other action or proceeding has been
threatened or commenced in the United States of America, seeking any
injunction, restraining order or other order which seeks to void or
otherwise modify the transactions described in the GE Capital Trade
Payables Agreement. Neither the execution and delivery of the GE
Capital Trade Payables Agreement, nor the consummation of the
transactions contemplated by the GE Capital Trade Payables Agreement,
nor compliance with the provisions thereof, shall violate any Federal
or state securities laws or any other law or regulation or any order or
decree of any court or governmental instrumentality in respect or shall
conflict with or result in the breach of, or constitute a default in
any respect under, any indenture, or other material mortgage,
agreement, instrument or undertaking to which any Credit Party is a
party or may be bound, or violate any provision of the organizational
documents of any Credit Party.
The effectiveness of the amendments and consents set forth in this Consent
Agreement shall be subject to the satisfaction of each of the following
conditions precedent:
Agent shall have received an executed original or executed original
counterparts of this Consent Letter (as the case may be), duly
authorized, executed and delivered by the respective parties hereto;
Agent shall have received, in form and substance satisfactory to Agent,
all consents, waivers, acknowledgments, releases, terminations and
such other documents and agreements from third persons which Agent may
deem necessary or desirable in order to permit, protect and perfect
Agent's and the Financing Parties' security interests in and liens upon
the Collateral;
Agent shall have received a true and complete copy of the GE Capital
Trade Payables Agreement, substantially identical to the form of GE
Capital Trade Payables Agreement attached as Exhibit A to the Lessee
Credit Agreement Amendment No. 1;
The Lessee Credit Agreement Amendment No. 1 shall have been duly
authorized, executed and delivered by each party thereto and shall be
in full force and effect and all of the conditions precedent set forth
therein shall have been fully satisfied or waived; and
The GE Capital Trade Payables Agreement shall have been duly
authorized, executed and delivered by each Credit Party and is in full
force and effect.
Except as expressly referenced herein, this Consent Letter shall not alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Operative Agreements, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to create a course of dealing or
otherwise entitle any Credit Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in any Operative Agreement in similar or
different circumstances in the future.
The Credit Parties hereby represent and warrant that (i) the representations
and warranties contained in Section 6.2 of the Participation Agreement are true
and accurate as of the date hereof as if made on the date hereof, except to the
extent such representations and warranties relate solely to an earlier date, in
which case such representations and warranties were true and accurate as of
such earlier date, (ii) no event or condition exists, or would result from the
consummation of the transactions contemplated hereby, which constitutes a
Default or an Event of Default, (iii) each Operative Agreement to which such
Person is a party remains in full force and effect with respect to it, and (iv)
it knows of no event that would or with the passage of time or giving of notice
or both could constitute a Casualty or Condemnation.
In consideration of entering into this Consent Letter, the Credit Parties
release each Financing Party and each Financing Party's respective Affiliates,
Subsidiaries, officers, employees, representatives, agents, counsel and
directors from any and all actions, causes of action, claims, demands, damages
and liabilities of whatever kind or nature, in law or in equity, now known or
unknown, suspected or unsuspected to the extent that any of the foregoing
arises from any action or failure to act with respect to any Operative
Agreement on or prior to the date hereof.
The Lessee agrees to pay all reasonable costs and expenses of the Agent in
connection with the preparation, execution and delivery of this Consent Letter,
including without limitation the reasonable fees and expenses of Xxxxx &
Xxx Xxxxx PLLC.
THIS CONSENT LETTER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAWS).
This Consent Letter may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
[The remainder of this page has been intentionally left blank.]
Best regards,
/s/WACHOVIA BANK, NATIONAL ASSOCIATION, as the Agent
ACKNOWLEDGED, AGREED AND CONSENTED TO:
/s/THE PEP BOYS - MANNY, MOE & JACK, a Pennsylvania corporation, as a Lessee
/s/THE PEP BOYS XXXXX XXX & JACK OF CALIFORNIA, a California corporation, as
a Lessee
/s/PEP BOYS - XXXXX, MOE & JACK OF DELAWARE, Inc., a Delaware corporation,
as a Lessee
/s/THE PEP BOYS - MANNY, MOE & JACK, a Pennsylvania corporation, as a
Guarantor
/s/PEP BOYS - MANNY, MOE & JACK OF PUERTO RICO, INC., as a Guarantor
/s/PBY CORPORATION, as a Guarantor
/s/CARRUS SUPPLY CORPORATION, as a Guarantor
/s/WACHOVIA DEVELOPMENT CORPORATION, as the Lessor and the Borrower
/s/WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender
/s/WACHOVIA CAPITAL INVESTMENTS, INC., as a Lender
/s/XXXXX FARGO FOOTHILL, LLC, as a Lender
/s/WHITEHALL BUSINESS CREDIT CORPORATION, as a Lender
/s/THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender
/s/GE CAPITAL CORPORATION, as a Lender
/s/RZB FINANCE LLC, as a Lender
/s/GMAC COMMERCIAL FINANCE LLC, as a Lender
/s/LASALLE BUSINESS CREDIT LLC, as a Lender
/s/PNC BANK, NATIONAL ASSOCIATION, as a Lender
/s/UPS CAPITAL CORPORATION, as a Lender
/s/SIEMENS FINANCIAL SERVICES, INC., as a Lender
/s/ORIX FINANCIAL SERVICES, INC., as a Lender
Distribution List
THE PEP BOYS - XXXXX, XXX & JACK
THE PEP BOYS XXXXX XXX & JACK OF CALIFORNIA
XXX XXXX - XXXXX, MOE & JACK OF DELAWARE
THE PEP BOYS - XXXXX, XXX & JACK
PEP BOYS - MANNY, MOE & JACK OF PUERTO RICO, INC.
PBY CORPORATION
CARRUS SUPPLY CORPORATION
WACHOVIA DEVELOPMENT CORPORATION
WACHOVIA BANK, NATIONAL ASSOCIATION,
WACHOVIA CAPITAL INVESTMENTS, INC.
XXXXX FARGO FOOTHILL, LLC
WHITEHALL BUSINESS CREDIT CORPORATION
THE CIT GROUP/BUSINESS CREDIT, INC.
GE CAPITAL CORPORATION
RZB FINANCE LLC
GMAC COMMERCIAL FINANCE LLC
LASALLE BUSINESS CREDIT LLC
PNC BANK, NATIONAL ASSOCIATION
UPS CAPITAL CORPORATION
SIEMENS FINANCIAL SERVICES, INC.
ORIX FINANCIAL SERVICES, INC.
EXHIBIT A
[Amendment No. 1 to Amended and Restated Loan and Security Agreement and the
Exhibits thereto]
