THIRD AMENDMENT TO AGREEMENT
Exhibit 10(a)
THIRD AMENDMENT TO AGREEMENT
THIS THIRD AMENDMENT TO AGREEMENT (this “Amendment”) is made effective as of the 31st day of July, 2009 (the “Effective Date”), by and between XXX RADIO AND TELEVISION, INC., an Ohio corporation (“Seller One”), XXXXX & XXXXX APPLIANCES, INC., an Ohio corporation (“Seller Two”), and STEREO TOWN, INC., a Georgia corporation (“Seller Three”), XXX ALABAMA, INC., an Ohio corporation (“Seller Four”) (collectively, Seller One, Seller Two, Seller Three and Seller Four, “Seller”), XXX STORES CORPORATION, a Delaware corporation (“XXX Stores”), all having an address at 0000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000, and APPLIANCE DIRECT, INC., a Florida corporation (“Purchaser”), having an address at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000, under the following circumstances:
A. By Agreement dated as of January 29, 2009 (the “Original Agreement”), Seller agreed to sell and Purchaser agreed to purchase certain Assets of Seller being more particularly described in Agreement.
B. By First Amendment to Agreement dated as of February 27, 2009, Seller and Purchaser amended the Original Agreement (the “First Amendment”).
C. By Second Amendment to Agreement dated as of June 30, 2009, Seller and Purchaser amended the Original Agreement (the “Second Amendment,” and together with the Original Agreement and the First Amendment, the “Agreement”).
D. Seller and Purchaser have agreed that Purchaser will not proceed with the lease of all of the locations and the parties desire to amend the Agreement as set forth below to conform the Agreement accordingly.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser amend the Agreement as follows:
1. Schedule 2.2 of the Agreement is hereby deleted in its entirety and the Schedule 2.2 attached to this Amendment inserted in lieu thereof.
2. Sections 2.5 of the Agreement is hereby deleted in its entirety and the following inserted in lieu thereof:
2.5 Extended Service Plan (“ESP”) Payment. Purchaser agrees to accept Seller’s customer ESP for Seller’s Frigidaire and Whirlpool appliances (excluding air conditioners and dehumidifiers). Seller shall pay to Purchaser, in connection with such assumption as of the Implementation Date, fifty-five percent (55%) of Seller’s Book Value of Seller’s Frigidaire and Whirlpool appliances’ ESP for the Properties and Leased Properties (the “ESP Credit”). Seller’s Book Value shall be equal to Seller’s reported liability related to ESP less Seller’s reported commissions as both are shown on the books and records of Seller in the ordinary course of its business. Seller and Purchaser acknowledge that the ESP Credit for the sites which have been opened by Purchaser as of June 30, 2009 has been applied to pay part of the rent due on such
sites from the Rent Commencement Date (as defined in each Lease) through rent due and outstanding as of June 30, 2009 and Purchaser is not entitled to any additional ESP Credit..
3. Exhibit 2.6 to the Agreement shall be deleted in its entirety and the Exhibit 2.6 attached to this Amendment inserted in lieu thereof.
4. Section 4.2 of the Agreement shall be deleted in its entirety and the following inserted in lieu thereof:
4.2 Deliveries.
(a) In addition to the items and documents required under other provisions of this Agreement to be delivered by Seller to Purchaser at or prior to Closing (or the Implementation Date, as indicated below), Seller (or whichever of Seller One, Seller Two or Seller Three is identified on Exhibit 1.1 as the owner of the Site to which such items and documents relate) shall execute and/or deliver (or cause to be executed and/or delivered) to Purchaser or the Escrow Agent, as applicable, through escrow each of the following at Closing:
(i) evidence of Seller’s authority to consummate the transactions described herein;
(ii) a date-down letter for representations and warranties in the form attached hereto as Exhibit 4.2(a)(ii);
(iii) originals of all Delivery Items to the extent in the possession or control of Seller;
(iv) the Leases;
(v) on the Implementation Date for each Site, one or more bills of sale and assignment conveying to Purchaser all of Seller’s right, title and interest in and to the Assets, in the form attached hereto as Exhibit 4.2(a)(vi) (the “Xxxx of Sale and Assignment”); and
(vi) originals of the Required Consents.
(b) In addition to the items and documents required under other provisions of this Agreement to be delivered by Purchaser to Seller at or prior to Closing, Purchaser also shall execute and/or deliver (or cause to be executed and/or delivered) to Seller through escrow each of the following at Closing:
(i) evidence of Purchaser’s authority to consummate the transactions described herein;
(ii) on the Implementation Date for each Property, evidence of insurance required under the Leases;
2
(iii) the Leases; and
(iv) on the Implementation Date for each Site, the Xxxx of Sale and Assignment.
5. Schedule 5.1 of the Agreement shall be deleted in its entirety and the Schedule 5.1 attached to this Amendment inserted in lieu thereof.
6. Section 5.3 of the Agreement shall be deleted in its entirety.
7. Seller has performed all of its obligations under the Agreement as of the date of this Amendment.
8. Except as modified by this Amendment, the Agreement remains in full force and effect.
9. The Agreement, as modified by this Amendment, is ratified and confirmed.
EXECUTED as of the date first written above.
| XXX STORES: | PURCHASER: | |
| XXX STORES CORPORATION, | APPLIANCE DIRECT, INC. | |
| a Delaware corporation | a Florida corporation | |
| By: | ||
| By: | Name: | |
| Name: | Title: | |
| Title: | ||
| SELLER: | ||
| XXX RADIO AND TELEVISION, INC., | ||
| an Ohio corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
| XXXXX & XXXXX APPLIANCES, INC., | ||
| an Ohio corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
3
| STEREO TOWN, INC., |
| a Georgia corporation |
| By: |
| Name: |
| Title: |
| XXX ALABAMA, INC., |
| an Ohio corporation |
| By: |
| Name: |
| Title: |
4
Exhibit 2.2
Properties
| Lease for | ||
| Store Number: | Location: | Landlord |
| 14 | 0000 Xxxxxxx Xxxxxxxxx | |
| Xxxxxx, Xxxxxxx | Seller One | |
| 23 | Daphne, Alabama | Seller One |
| 24 | Gadsden, Alabama | Seller One |
| 27 | Dothan, Alabama | Seller One |
| 29 | Auburn, Alabama | Seller One |
| 102 | Florence, Alabama | Seller One |
| 000 | Xxxxxxx, Xxxxxxx | Seller One |
| 181 | Montgomery, Alabama | Seller One |
| 000 | Xxxxxxxxx, Xxxxxxx | Seller Two |
| 17 | Gautier, Mississippi | Seller One |
| 25 | Greenville, Mississippi | Seller One |
| 000 | Xxxxxxxx, Xxxxxxxxxxx | Seller One |
| 138 | Columbus, Mississippi | Seller One |
| 296 | Natchez, Mississippi | Seller One |
| 127 | Vicksburg, Mississippi | Seller One |
Seller Key:
Seller
One: Xxx Radio and Television, Inc.
Seller Two: Xxxxx & Xxxxx Appliances,
Inc.
Schedule 2.6
| New | |||||
| Addrs | Street Name | City | ST | Corporation Name | Start |
| No. | Date | ||||
| 0000 | XX 00xx XXXXXX | XXXXXXXXXXX | XX | AD-Gainesville, Inc. | 3/20 |
| 0000 | XXXX XXXXX XXXXXX | XXXXXX | XX | AD-Dothan, Inc. | 3/20 |
| 000 | XXXXX XXXXXX | XXXXXXXXX | XX | AD-Brunswick, Inc. | 3/20 |
| 00000 | XXXXXXX 00 | XXXXXX | XX | AD-Daphne, Inc. | 3/27 |
| 0000 | XXXXXXX XXXXX | XXXXXXX | XX | AD-Gadsden, Inc. | 3/27 |
| 0000 | XXXXXXX XXXX | XXXXXXXXXX | XX | AD-Montgomery, Inc. | 3/27 |
| 0000 | XXXXXXXX XX. X.X. | XXXXXXX | XX | AD-Decatur, Inc. | 3/27 |
| 0000 | XXXXXXXX XXXX. | XXXXXXXX | XX | AD-Florence, Inc. | 3/27 |
| 0000 | XXXXXXX 00 XXXXX | XXXXXXXX | XX | AD-Columbus, Inc. | 4/3 |
| 0000 | XXXXXXX 00 | XXXXXXX | XX | AD-Gautier, Inc. | 4/3 |
| 000 | XXXXXX XXXXX XX | XXXXXXXX | XX | AD-Meridian, Inc. | 4/3 |
| 0000 | XXX 0 XXXXX | XXXXXXXXXX | XX | AD-Greenville, Inc. | 4/3 |
| 000 | XXXX X. XXXXXX XX. | XXXXXXX | XX | AD-Natchez, Inc. | 4/3 |
| 0000 | X. XXXXXXXXXX XX | XXXXXX | XX | AD-Auburn-AL, Inc. | 4/10 |
| 0000 | XXXXXXX XXXX. | XXXXXX | XX | AD-Mobile, Inc. | 4/10 |
| 0000 | XXXX XXX. | XXXXXXXXX | XX | AD-Vicksburg, Inc. | 4/10 |
SCHEDULE 5.1
| Store | ||
| Number | Location | Date Rent is Due |
| 14 | 0000 Xxxxxxx Xxxxxxxxx | 0xx |
| Xxxxxx, Xxxxxxx | ||
| 23 | Daphne, Alabama | 1st |
| 27 | Dothan, Alabama | 1st |
| 24 | Gadsden, Alabama | 1st |
| 29 | Auburn, Alabama | 1st |
| 102 | Florence, Alabama | 1st |
| 103 | Decatur, Alabama | 1st |
| 181 | Montgomery, Alabama | 1st |
| 154 | Brunswick, Georgia | 1st |
| 17 | Gautier, Mississippi | 1st |
| 25 | Greenville, Mississippi | 1st |
| 137 | Meridian, Mississippi | 1st |
| 138 | Columbus, Mississippi | 1st |
| 296 | Natchez, Mississippi | 1st |
| 000 | Xxxxxxxxx, Xxxxxxxxxxx | 0xx |
