Exhibit 10.44
FIFTH AMENDMENT TO TRANSACTION AGREEMENT
(1995 Pep Boys Leased Property Facility)
This FIFTH AMENDMENT TO TRANSACTION AGREEMENT dated as of
the 21st day of January, 1999 (this "Amendment"), is entered into
by and among THE PEP BOYS - MANNY, MOE & XXXX, a Pennsylvania
corporation ("Lessee" and "Lease Guarantor"); STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company, not in its
individual capacity except as expressly stated in the Transaction
Agreement, but solely as Trustee under the Declaration of Trust
(State Street Bank and Trust Company, when acting in its capacity
as such Trustee, together with any successor trustee under the
Declaration of Trust, is herein referred to as the "Trustee", and
State Street Bank and Trust Company, when acting in its
individual capacity, is herein referred to as "Trust Company");
CITICORP LEASING, INC., a Delaware corporation ("CLI"), on behalf
of itself as the initial Purchaser and initial Instrument Holder
under the Transaction Agreement and on behalf of the other
financial institutions that may, from time to time, become
Purchasers or Instrument Holders thereunder; and CITICORP
LEASING, INC., a Delaware corporation ("Agent"), in its capacity
as the initial administrative agent for the Instrument Holders
under the Transaction Agreement. Capitalized terms used but not
otherwise defined in this Amendment shall have the meanings set
forth in the Transaction Agreement.
RECITALS
A. Effective as of November 13, 1995, Lessee, Trustee and
CLI, for itself and as Agent, entered into that certain
Transaction Agreement (as heretofore amended, supplemented or
otherwise modified from time to time, the "Transaction
Agreement") pursuant to the terms of which Trustee has acquired
the Property. The Property has been leased to Lessee (and, where
applicable, certain Additional Lessees that are wholly-owned
subsidiaries of Lessee) by Trustee (and in certain cases by a co-
trustee appointed pursuant to the terms of Section 8.04 of the
Declaration of Trust) under that certain Master Lease of even
date with the Transaction Agreement between Trustee, as lessor,
and Lessee, as lessee (as heretofore amended, supplemented or
otherwise modified from time to time, the "Lease").
1
B. Pursuant to the terms and provisions of that certain
Lease Guarantee dated of even date with the Lease ("Lease
Guarantee"), the Obligations (as defined in the Lease Guarantee)
of Lessee under the Lease have been guaranteed by Lease
Guarantor.
C. The parties have agreed to certain modifications to the
Transaction Agreement.
NOW, THEREFORE, in consideration of the premises and
agreements set forth herein and therein, the parties agree as
follows:
1. In the event that the modifications to the terms of
Section 8(e) of the Lease Guarantee that are provided for in the
amendment to the Lease Guarantee executed contemporaneously
herewith become effective (i.e., if the conditions to the
effectiveness of all or any of such modifications to the Lease
Guarantee are satisfied) then (and only then) the definition of
"Spread" contained in Schedule 1 attached to the Transaction
Agreement is hereby amended in its entirety as follows, with such
amendment to be effective as of the first day of the Interest
Period during which such modifications become effective:
"'Spread' shall be either (A) in the case of the
Certificates, 275 basis points, or (B) in the case of the A-
Notes and the B-Notes, the number of basis points determined
by reference to the following chart, based on the Debt
Rating of Lessee as of the beginning of the applicable
Interest Period:
Lessee's Most
Recent Debt Rating Applicable Spread
BBB+ (or higher) 75 basis points (0.75%)
BBB 100 basis points (1.00%)
BBB- 150 basis points (1.50%)
less than BBB- 225 basis points (2.25%)"
2. Until such time as the modifications to the terms of
Section 8(c) of the Lease Guarantee that are provided for in the
contemporaneous amendment to the Lease Guarantee referred to
hereinabove become effective, the modifications to the Spread
provided for in paragraph 1 of this Amendment shall not be
effective and the Spread (as previously amended) shall remain in
effect.
3. Except as amended hereby, the terms and provisions of
the Transaction Agreement shall be and remain in full force and
effect and are hereby ratified and affirmed. By its execution
hereof Lessee Parent hereby ratifies and affirms each and every
representation, warranty, covenant, obligation and indemnity
contained in the Transaction Agreement as of the date hereof.
2
4. By its execution hereof, Lease Guarantor hereby
ratifies and affirms each and every representation, warranty,
covenant, obligation and indemnity contained in the Lease
Guarantee as of the date hereof and acknowledges that the Lease
Guarantee remains in full force and effect.
5. By their execution hereof, Lessee, Pep Boys - Manny,
Moe & Xxxx of Delaware, Inc., a Delaware corporation ("Pep Boys-
Delaware"), and The Pep Boys Xxxxx Xxx & Xxxx of California, a
California corporation ("Pep Boys-California"), as Indemnitors,
hereby ratify and affirm each and every representation, warranty,
covenant, obligation and indemnity contained in that certain
Environmental Indemnity Agreement dated of even date with the
Transaction Agreement as of the date hereof and acknowledge that
the Environmental Indemnity Agreement remains in full force and
effect.
6. By their execution hereof, Pep Boys-Delaware and Pep
Boys-California, in their capacity as Additional Lessees under
the Lease, along with Lessee Parent in its capacity as Lessee
under the Lease, hereby ratify and affirm each and every
representation, warranty, covenant, obligation and indemnity
contained in the Lease as of the date hereof and acknowledge that
the Lease remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment effective as of the date first above written.
3
[SEE ATTACHED SIGNATURE PAGES]
SIGNATURE PAGE OF THE PEP BOYS - MANNY, MOE & XXXX
ATTACHED TO
FIFTH AMENDMENT TO TRANSACTION AGREEMENT
LESSEE, LESSEE PARENT, LEASE
GUARANTOR AND INDEMNITOR:
THE PEP BOYS - MANNY, MOE & XXXX,
a Pennsylvania corporation
By:
Name:
Title:
SIGNATURE PAGE OF TRUSTEE AND TRUST COMPANY
ATTACHED TO
FIFTH AMENDMENT TO TRANSACTION AGREEMENT
TRUSTEE:
STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust company
(not in its individual capacity, but
solely as Trustee)
By:
Xxxxxx X. Xxxxx, Vice President
TRUST COMPANY:
STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust company (in its
individual capacity, but only as expressly
stated herein)
By:
Xxxxxx X. Xxxxx, Vice President
4
SIGNATURE PAGE OF CLI AND AGENT
ATTACHED TO
FIFTH AMENDMENT TO TRANSACTION AGREEMENT
AGENT and CLI:
CITICORP LEASING, INC.,
a Delaware corporation
By:
Xxxxxx X. Xxxxx, Vice President
SIGNATURE PAGE OF ADDITIONAL LESSEES
ATTACHED TO
FIFTH AMENDMENT TO TRANSACTION AGREEMENT
ADDITIONAL LESSEES AND INDEMNITORS:
PEP BOYS - MANNY, MOE & XXXX OF
DELAWARE, INC., a Delaware corporation
By:
Name:
Title:
THE PEP BOYS XXXXX XXX & XXXX OF
CALIFORNIA, a California corporation
By:
Name:
Title:
5
