EXHIBIT 10.86
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. SUCH PORTIONS ARE DESIGNATED "***".
THIS SUPPLY AGREEMENT ("Agreement"), is made and entered into as of the
2nd day of November, 2004, between Wagner Brake, a division of Federal-Mogul
Corporation, with a mailing address of 26555 Northwestern Hwy. Southfield, MI
48034, Attention: Vice President - Aftermarket Sales, America ("SUPPLIER") and
Monro Service Corporation, a Delaware corporation, with a mailing address of 200
Holleder Parkway, Rochester, NY 14615 ("CUSTOMER").
W I T N E S S E T H:
IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH IN THIS AGREEMENT,
and other good, valuable and sufficient consideration, the receipt and adequacy
of which are hereby acknowledged, SUPPLIER hereby agrees to sell and deliver,
and CUSTOMER hereby agrees to purchase, receive and pay for, the SUPPLIER'S
products described below at CUSTOMER'S premises identified on the attached
Schedule A, and any future locations the CUSTOMER may acquire, open, manage or
operate on the following terms and conditions:
1. TERM. This Agreement shall commence February 1, 2005 (the "Effective
Date") and be in effect until March 31, 2010 (the "Agreement Period").
CUSTOMER expressly agrees that this Agreement is independent of any other
agreement between CUSTOMER and SUPPLIER. This Agreement shall remain in
effect unless terminated pursuant to the provisions hereof regardless of
the termination or expiration of any other agreement between CUSTOMER and
SUPPLIER.
2. INTERIM PERIOD. The CUSTOMER may begin purchasing products from the
SUPPLIER during the period between the date this Agreement is signed by
both parties and the Effective Date (the "Interim Period") in order to
facilitate CUSTOMER'S transition to the PRODUCTS (as defined in Section
3). Any purchases during the Interim Period shall be subject to the
following conditions and/or exceptions:
A. Interim Period Pricing (as defined in Schedule B) shall apply;
B. There shall be no minimum purchase requirements;
C. The Fill Rate Guarantee (as defined in Section 8) shall not apply;
D. *** (as defined in Section 21) shall not be assigned to SUPPLIER by
CUSTOMER;
E. The Marketing Allowance cited in Section 13.A shall apply; and
F. The provisions outlined in Section 17 shall apply.
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3. PRODUCTS. SUPPLIER shall sell and deliver, and CUSTOMER shall purchase,
pay and provide safe access for the delivery of the products offered by
SUPPLIER for purchase by CUSTOMER as shown (with applicable pricing) on
Schedule B ("Products").
During the Agreement Period, CUSTOMER shall purchase a minimum
amount of the Products (net of any returns made by CUSTOMER ***, the
"Purchase Requirement") during the applicable period ("Period").
Period Purchase Requirement
- ------ --------------------
February 1, 2005 - March 31, 2006 ***
April 1, 2006 - March 31, 2007 ***
April 1, 2007 - March 31, 2008 ***
April 1, 2008 - March 31, 2009 ***
April 1, 2009 - March 31, 2010 ***
It is understood that CUSTOMER will actively promote and purchase
Wagner ThermoQuiet friction products as its primary premium friction line.
It is anticipated that during the term of this Agreement CUSTOMER will
purchase *** in Products from SUPPLIER. If CUSTOMER'S aggregate purchases
of Product do not reach the Purchase Requirement during any Period,
CUSTOMER shall be permitted to carry forward, in the manner described in
the following sentence, the difference between the Purchase Requirement
and the aggregate amount of the all purchases for such Period (the
"Shortfall Amount"). The CUSTOMER shall purchase the Shortfall Amount, if
any, from all Periods (together, the "Aggregate Shortfall Amount") under
the provisions of this Agreement, within six (6) months following the
expiration of the Agreement Period. These Purchase Requirements include
all brake categories except brake calipers. If CUSTOMER'S purchases for
any Period should exceed the applicable Purchase Requirement for such
Period, the excess amount will be credited against the Aggregate Shortfall
Amount.
4. PRICE/PAYMENT. Prices for the products are set forth on Schedule B and are
subject to change upon written notice to CUSTOMER; such notice shall be
delivered to CUSTOMER at least sixty (60) days in advance. SUPPLIER will
not increase any prices for a period of ***. Any future price adjustments
shall generally allow CUSTOMER to remain competitive with comparable
products sold by CUSTOMER'S competitors. ***. Except for income taxes
incurred by SUPPLIER, CUSTOMER is responsible for payment of all
applicable taxes, fees and other government-imposed charges, whether or
not included in such prices. If compliance with law prevents SUPPLIER from
charging or CUSTOMER from paying the price provided in this Agreement, any
resulting failure to perform shall be excused pursuant to Section 7
hereof. Each delivery hereunder shall be considered a separate sale.
5. PRODUCT IDENTIFICATION. SUPPLIER shall have the right at any time to
change or discontinue use of any trademark, service mark, trade dress,
trade name or other indication of source of origin ("Marks") under which
the Products are sold. If SUPPLIER discontinues the use of any Mark which
the CUSTOMER, in its sole discretion, deems as being critical to its
on-going business, the CUSTOMER shall have the right to terminate this
agreement under the conditions outlined below. CUSTOMER shall use its best
efforts to maintain the quality, good name and reputation of SUPPLIER and
the Products. CUSTOMER shall not alter in composition, co-mingle with
products from other sources, or otherwise adulterate the Products.
CUSTOMER shall not bring or cause to be brought any proceedings, either
administrative or judicial in nature, contesting SUPPLIER'S ownership of
rights to, or registrations of the Marks.
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6. PROTECTION OF LOGOS AND TRADEMARKS. CUSTOMER shall permit SUPPLIER a
limited right to use CUSTOMER'S trade names, trademarks, logos and service
marks ("Customer's Marks") for promotional purposes pursuant to the terms
set forth in this Section. CUSTOMER must give prior approval, in each
instance and in its sole discretion, of SUPPLIER'S intended use of
Customer's Marks including, but not limited to: usage in pamphlets,
brochures, marketing materials, trade magazines or journals, press
releases, and electronic media. SUPPLIER shall not alter in composition,
co-mingle with any marks from its other customers or otherwise adulterate
Customer's Marks. SUPPLIER shall not bring, or cause to be brought, any
proceedings, either administrative or judicial in nature, contesting
CUSTOMER'S ownership of rights to, or registrations of the Customer's
Marks. CUSTOMER shall indemnify and hold SUPPLIER harmless from any losses
or liabilities or damages in connection with any claim brought by a third
party against SUPPLIER alleging that SUPPLIER'S possession or use of the
CUSTOMER'S Marks pursuant to, and in accordance with, the terms of this
Agreement infringes the rights of such third party.
7. FORCE MAJEURE. The parties to this Agreement shall not be responsible for
any delay or failure to perform under this Agreement (other than to make
payments when due hereunder) if delayed or prevented from performing by
act of God; transportation difficulty; strike or other industrial
disturbance; any law, regulation, ruling, order or action of any
governmental authority; fire; or any other cause or causes beyond such
party's reasonable control whether similar or dissimilar to those stated
above.
8. PRODUCT AVAILABILITY. SUPPLIER shall endeavor to provide CUSTOMER with
sufficient product to meet its needs. Notwithstanding Section 7, in the
event the SUPPLIER is unwilling and/or unable to supply CUSTOMER with any
Products CUSTOMER shall order from SUPPLIER, the CUSTOMER shall seek to
purchase products from alternate sources. In such instances, as they may
occur, CUSTOMER'S Purchase Requirement for the applicable Period shall be
reduced by the aggregate value of such product purchased by CUSTOMER from
alternate sources.
SUPPLIER shall on each individual purchase order, maintain a shipping
ratio in excess of 85% of the value of CUSTOMER'S order (the "Fill Rate
Guarantee"). If SUPPLIER'S shipping ratio falls below 85% ***. CUSTOMER
will be responsible for tracking shipping performance by purchase order
and invoice, maintaining back-up documentation, ***.
***.
9. COMPLIANCE WITH LAWS/TAXES. CUSTOMER shall, at its own expense, (i) comply
with all applicable laws, regulations, rulings and orders, including
without limitation those relating to taxation, workers' compensation, and
environmental protection; (ii) obtain all necessary licenses and permits
for the purchase and sale of the Products; and (iii) pay directly, or
reimburse SUPPLIER on demand if paid by SUPPLIER (except as otherwise
provided), all taxes, inspection fees, import fees, and other governmental
charges imposed by this Agreement, the Products, or on the sale, purchase,
handling, storage, advertising, distribution, resale or use of the
Products.
10. SUPPLIER'S RIGHT TO INSPECT. SUPPLIER, or its authorized agents, shall
have the right, but not the obligation, to inspect CUSTOMER'S premises,
bearing the Marks, or being represented to contain the Products, at any
time during business hours.
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11. TERMINATION; REMEDIES. This Agreement may be terminated under the terms of
this Section.
A. An "Event of Default" shall mean any of the following events:
(i) If CUSTOMER defaults in the performance of or breaches
any provision of Section 3 of this Agreement;
(ii) The provisions of Section 16 notwithstanding, any
payment due hereunder is unpaid past the 10th calendar
day of the second month following shipment; or
(iii) Either party materially defaults in the performance of
or material breaches any other provision of this
Agreement; or
(iv) (a) After the date of this Agreement, a voluntary
petition under Chapter 7 or 11 of the Bankruptcy Code is
filed by or against either party, or a final order for
relief under Chapter 7 of the Bankruptcy Code is
entered, or any Chapter 11 proceedings are converted to
proceedings under Chapter 7 of the Bankruptcy Code
pursuant to a final order for relief;
(b) Either party makes an assignment for the benefit of
creditors or a similar transfer of or action involving a
material portion of its assets for purposes of
liquidating such assets;
(c) Any secured or lien creditor commences a foreclosure
action of its liens, security interest(s) and/or
mortgage(s) against, and obtains the right to possession
or control over, a material portion of such party's
assets; or
(v) SUPPLIER discontinues the use of any Supplier Mark
according to the terms of section 5 of this Agreement;
or
(vi) The Aggregate Shortfall Amount outstanding at any one
time during the Agreement Period exceeds ***.
B. Upon the occurrence of any Event of Default, the party not causing
or responsible for the Event of Default may give written notice to
the other party. If the Event of Default is not cured by the
notified party within 60 days of the written notice, then the party
giving the written notice is entitled to terminate this Agreement
immediately, but in no event later than six months after the notice,
by providing written notice of termination.
C. In the event that this Agreement is terminated by CUSTOMER other
than in accordance with Sections 11.B, 11.D or 11.E of this
Agreement, or by SUPPLIER in accordance with Section 11 of this
Agreement, CUSTOMER shall pay to SUPPLIER as liquidated damages (and
not as a penalty) an amount as outlined below. The amount of
liquidated damages shall be determined by multiplying the applicable
termination fee outlined below times the number of full calendar
months remaining in the Agreement Period. The entire amount of such
liquidated damages shall be paid to SUPPLIER within ninety (90) days
of the effective date of the termination of this Agreement.
Termination Date Termination Fee
- ---------------- ---------------
*** ***
*** ***
*** ***
D. In the event that a change of control of SUPPLIER shall result in a
party, person or corporate entity controlling a majority share of
SUPPLIER and such party, person or corporate entity shall be a
citizen of, or based in, a country which is, or becomes, listed on
the United States of America's Department of State's Office of
Defense Trade
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Control's Embargo Reference Chart the CUSTOMER shall have the
immediate right to terminate this agreement without penalty,
assessment of liquidated damages or prior notification.
E. If CUSTOMER is acquired, either directly or indirectly, through the
sale of a majority of its assets or stock, CUSTOMER shall be
permitted to terminate the Agreement upon six (6) months prior
written notice to SUPPLIER. CUSTOMER agrees to pay SUPPLIER
liquidated damages *** of those otherwise determined in Section
11.C.
F. Upon termination of this Agreement in accordance with section 11 of
this Agreement, CUSTOMER shall not be entitled to any further ***,
except those which have been earned but remained unpaid by the
SUPPLIER. Additionally, ***.
12. NOTICE. Any written notice required or permitted to be given under this
Agreement shall be sufficient for all purposes hereunder if in writing and
personally delivered or sent by any means providing for return receipt to
the address provided for the party in question in the heading of this
Agreement. Any party may change the mailing address or other information
provided for it in the heading hereof by written notice given in
accordance with this Section 12.
13. PROMOTIONAL AND MARKETING SUPPORT. In consideration of the terms of this
Agreement, SUPPLIER agrees to provide the following Marketing Support to
the CUSTOMER:
A. ***, calculated on qualified net purchases, payable quarterly.
Credit to be issued within 60 days of close of the quarter.
B. *** which may potentially vary from *** based on the *** from the
CUSTOMER. This rebate will be paid annually based on *** from the
CUSTOMER. ***.
C. During the first (1st) year of the Agreement, SUPPLIER shall
reimburse CUSTOMER a maximum of ***, and no more than *** per three
(3) month period, for all expenses associated with marketing,
advertising and other promotional programs associated with launching
SUPPLIER'S product line(s). CUSTOMER shall be required to provide
copies of supportive documents for such claims.
D. Beginning on the *** anniversary of the Agreement, SUPPLIER shall
provide a Marketing Support Fund of *** per year, payable in
quarterly installments of *** with the first payment commencing
following the calendar quarter.
E. All credits shall be issued in the form of a credit memo delivered
to the CUSTOMER within 60 days of the end of a calendar year or
calendar quarter, depending on the structured timing of such
payments. With respect to any credit memo issued by SUPPLIER under
this Agreement, SUPPLIER must post credit to CUSTOMER'S account(s)
with such credits identified on monthly billing statements, and
CUSTOMER must apply such credit(s) against balance(s) owed within
three (3) months of their respective issuance(s).
14. PRODUCT WARRANTY.
A. SUPPLIER shall not be liable for any warranty claims by CUSTOMER or
others. CUSTOMER agrees to handle and dispose of any warranty
product without cost to, or involvement of, the SUPPLIER. ***. The
foregoing
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discount is CUSTOMER'S exclusive remedy. SUPPLIER shall not be
liable for incidental or consequential damages.
B. Notwithstanding section 14(A), in the event of a product recall or
production problem resulting in a "batch" or "lot" of product
defects on a particular part, CUSTOMER may return such products for
replacement products, ***, once authorization has been obtained from
the SUPPLIER'S sales representative.
C. Each party agrees to indemnify and hold harmless the other party,
its customers, employees and agents from and against all liability,
demands, claims, suits, losses and court costs, by reason of, or on
account of, property damage, death and/or personal injury of
whatsoever nature or kind arising directly from the negligence,
willful misconduct or breach of contract of such party, its
employees or agents. Each party shall provide prompt notice to the
other party of any such claims and shall actively cooperate with the
other party with respect to the defense of such claim, provide all
information in such detail as requested. The party notified of its
indemnification obligations shall have sole control of the defense
of any claim or complaint, and the sole authority for settlement
(subject only to the requirement that the terms of any such
settlement shall include a full release of the other party). This
indemnity shall terminate on the expiration or termination of this
Agreement; however, the termination shall not terminate, limit or
affect this indemnity with respect to any Products ordered prior to
such date of termination.
D. SUPPLIER agrees to maintain minimum liability insurance coverage,
and to have such insurance contract(s) endorsed to include Monro
Muffler Brake, Inc., Monro Service Corporation, Monro Leasing, LLC,
and their employees, directors, officers and agents under ISO Form
CG2026. Minimum liability coverage is identified on Schedule F.
15. TERMS OF SALE. Shipped products will be billed to CUSTOMER with payment
terms of 2% 2nd 10th prox. 2% prompt pay discounts may not be taken if the
payment is postmarked after the 10th of the month due.
16. DISCREPANCIES / PAYMENT OF INVOICES. In the event of a discrepancy between
product ordered, product billed and product received, or pricing applied
to product received, it will be the responsibility of the CUSTOMER to
include a Vendor Charge Back (VCB) stating the discrepancy along with
payment. While the amount of the discrepancy may be deducted from the
statement payment, the CUSTOMER will have 60 days to provide proof or
substantiation that the charge back is warranted so that it can be
corrected. If it is not substantiated within 60 days from the invoice due
date it must be paid back. Under no circumstances shall the payment for
the entire statement or invoice be withheld or delayed for such a
discrepancy.
17. PRE-PAID FREIGHT / ***.
A. SUPPLIER will ship orders via common carrier, prepaid, if net order
value is over $1500 or whatever the prevailing SUPPLIER freight
policy is at the time.
B. ***
C. ***
D. ***
E. ***
(i) ***
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(ii) ***
18. OBSOLESCENCE RETURNS. The SUPPLIER will accept up to 5% of the previous
year's net purchases for product returns. These returns may only include
current parts that are overstocked, or parts scheduled for obsolescence
and/or supersession. Competitive product or parts already obsolete (not in
the current prevailing price sheet) are not eligible for return.
19. ***
A. ***
B. ***
C. ***
20. CHANGEOVER PROCEDURES / COSTS. The SUPPLIER makes no commitment to
re-label, rebox, handle, or take return of any competitive product other
than that specifically listed above. Additionally, the CUSTOMER agrees
that any incidental costs incurred by the changeover including, but not
limited to training, cataloging, marketing, promotion, and administrative
are covered by the *** set forth in Section 12; CUSTOMER will seek no
additional remuneration from the SUPPLIER for any such costs.
21. ***. The SUPPLIER agrees to accept from the CUSTOMER, certain of
CUSTOMER'S *** due to SUPPLIER, subject to the following conditions:
A. SUPPLIER will accept up to *** from CUSTOMER in ***.
B. The SUPPLIER will accept up to *** from CUSTOMER in *** during any
one calendar year.
C. SUPPLIER and CUSTOMER shall mutually agree to the timing and
application of orders which will be remitted by way of *** from
CUSTOMER'S account to the account of SUPPLIER.
22. INDEPENDENT CONTRACTOR. The business conducted by CUSTOMER at CUSTOMER'S
premises shall be the independent business of CUSTOMER, and the entire
control and direction of the activities of such business shall be and
remain with CUSTOMER. This contract and the elements provided herein are
based on CUSTOMER being considered "closed distribution". That is, parts
being sold to CUSTOMER are for the exclusive use of CUSTOMER'S
installation facilities and will not be re-distributed or resold to
businesses or installation facilities outside of Monro Service Corp., or
Monro Muffler Brake, Inc. CUSTOMER shall not be the employee or agent of
SUPPLIER, and CUSTOMER shall make no representation to the contrary.
23. TIME OF THE ESSENCE/WAIVER. In performing all obligations under this
Agreement, time is of the essence. The failure of any party hereto to
exercise any right such party may have with respect to breach of any
provision of this Agreement shall not impair or be deemed a waiver of such
party's rights with respect to any continuing or subsequent breach of the
same or any other provision of this Agreement.
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24. ETHICAL BUSINESS PRACTICE. CUSTOMER agrees to comply with all
confidentiality and access to information requirements in Federal, State
and Local laws and regulations. Through an adherence to, among other
things, the provisions of CUSTOMER'S Code of Ethics, a copy of which may
be found at http://www.monro.com/CorpSite/CodeOfEthics.pdf, all employees
of CUSTOMER are required to maintain the highest standards of honesty,
integrity and trustworthiness. Execution of this Agreement is evidence of
SUPPLIER'S willingness to acknowledge these standards.
25. PRODUCT CATALOGS. SUPPLIER agrees to provide complete and accurate catalog
information to CUSTOMER for all Products, as outlined below. All
electronic data must be supplied in the then current format specified by
the Automotive Aftermarket Industry Association ("AAIA").
A. Electronic information providing coverage for a minimum of 95% of
all vehicles serviced by CUSTOMER during the current and preceding
twenty (20) years, and
B. Electronic information will be updated at least semi-annually, and
provided in its entirety, and
C. Corrections of identified erroneous electronic information will be
provided monthly; and
D. Electronic information will provide the correct part information for
the specific vehicle application, without regard to CUSTOMER'S
decision to stock such part, and
E. SUPPLIER shall provide, upon release of same, a quantity of each
catalog, specification guide or other such media, in an amount
sufficient to supply each location operated or managed by CUSTOMER.
Failure to provide catalog information as outlined above will
result in CUSTOMER obtaining the electronic information and/or
print catalog editions in a manner most expeditious and
beneficial to CUSTOMER. SUPPLIER agrees to reimburse CUSTOMER
for any and all costs associated with having to obtain catalog
information from alternate source(s).
26. EXECUTION AND ACCEPTANCE. This Agreement or any modification hereof shall
not be binding upon SUPPLIER until it has been duly accepted by SUPPLIER,
as evidenced by the signature of one of SUPPLIER'S authorized officers or
representatives in SUPPLIER'S offices, with an executed counterpart
delivered to CUSTOMER. Commencement of business between the parties prior
to such acceptance, signature and delivery of a counterpart shall not be
construed as a waiver by SUPPLIER of this condition.
27. POLICY / PROCEDURES. Any sales policy or procedure or procedure not
specifically called out in this contract will default to the policies and
procedures listed in Schedule E - "Federal-Mogul US Aftermarket Sales
Policies - Revised 5/20/04"
28. ENTIRETY OF CONTRACT. This writing is intended by the parties as the
final, complete and exclusive statement of the terms, conditions and
specifications of their agreement and is intended to supersede all
previous oral or written agreements and understandings between the parties
relating to its specific subject matter. No employee or agent of SUPPLIER
has authority to make any statement, representation, promise or agreement
not contained in this Agreement. No prior stipulation, agreement,
understanding or course of dealing between the parties or their agents
with respect to the subject matter of this
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Agreement shall be valid or enforceable unless embodied in this Agreement.
No amendment, modification or waiver of any provision of this Agreement
shall be valid or enforceable unless in writing and signed by all parties
to this Agreement. This Agreement shall supersede, and shall not be
modified or amended in any way by the terms of, any purchase order which
may be issued by CUSTOMER for the purchase of product hereunder.
29. SEVERABILITY. If any provision of this Agreement or the application of any
such provision to any person or circumstance is held invalid, the
application of such provision to any other person or circumstance and the
remainder of this Agreement will not be affected thereby and will remain
in full effect.
30. GOVERNING LAW. THIS AGREEMENT HAS BEEN DELIVERED AND ACCEPTED AND SHALL BE
DEEMED TO HAVE BEEN MADE AT ROCHESTER, NEW YORK. Any dispute, claim or
controversy arising out of or related to this Agreement (or any of the
Agreements attached hereto as exhibits) or breach, termination or validity
thereof, may be, by mutual consent of the parties, settled by arbitration
conducted expeditiously, in English, in accordance with the commercial
Arbitration Rules of the American Arbitration Association ("AAA"). Within
ten (10) business days of the filing of arbitration, the parties shall
select a sole independent and impartial arbitrator in accordance with such
Rules. If the parties mutually agree to arbitration, but are unable to
agree upon an arbitrator within such period, the AAA will appoint an
arbitrator on the eleventh (11th) day, which arbitrator shall be
experienced in commercial matters. The arbitrator will issue findings of
fact and conclusions of law to support his/her opinion and is not
empowered to award damages in excess of compensatory damages. The place of
arbitration shall be Rochester, New York. Judgment upon the award rendered
by the arbitrator may be entered by any court having jurisdiction thereof.
Notwithstanding any of the foregoing, either party may seek remedies
through the courts, including, without limitation, injunctive relief,
prior and without prejudice to arbitration in accordance with this
provision. THE PARTIES HEREBY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING ARISING DIRECTLY OR INDIRECTLY HEREUNDER.
Notwithstanding anything contained in this Agreement, SUPPLIER
shall not be liable in any arbitration, litigation or other
proceeding for anything other than actual, compensatory
damages.
31. RENEWABILITY. Subject to the requirement that CUSTOMER purchase Product in
the amount of the Aggregate Shortfall Amount in Section 3, this Agreement
has an established term and shall not automatically renew upon its
expiration. If mutually desired, the Parties agree to terminate this
Agreement and replace it with another Agreement prior to the expiration of
the established term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date first
written above.
FEDERAL-MOGUL CORPORATION MONRO SERVICE CORPORATION
Signature: /s/ Joseph P. Felicelli Signature: /s/ Robert Gross
----------------------- ---------------------------
Name: Joseph P. Felicelli Name: Robert Gross
Title: Executive Vice President Title: President/CEO
Date: November 2, 2004 Date: November 2, 2004
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