Exhibit 10.4
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of November ___, 2004 among
CIRCUIT CITY STORES, INC., a corporation organized under the laws of
the State of Virginia having a place of business at 0000 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx, as Lead Borrower for the Borrowers, being
said CIRCUIT CITY STORES, INC.,
CIRCUIT CITY STORES WEST COAST, INC., a corporation
organized under the laws of the State of California having a
place of business at 000 X. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx
00000;
ORBYX ELECTRONICS, LLC, a limited liability company
organized under the laws of the State of Delaware, having a place
of business at 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000; and
INTERTAN CANADA LTD., a corporation organized under the laws
of the Province of Ontario, Canada having its head office at 000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0; and
the LENDERS party hereto; and
FLEET RETAIL GROUP, INC., as Administrative Agent and Collateral Agent
for the Lenders (the "Agent"), a Delaware corporation, having its
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000; and
in consideration of the mutual covenants herein contained and benefits
to be derived herefrom.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, Lenders and the Agent, among others, have
entered into a certain Amended and Restated Credit Agreement dated as of July 8,
2004 (the "Credit Agreement"); and
WHEREAS, the Borrowers and the Required Lenders desire to amend and
modify certain terms and provisions of the Credit Agreement to change certain
defined terms contained therein;
NOW THEREFORE, in consideration of the mutual promises and agreements
herein contained, the parties hereto hereby agree that the Credit Agreement is
hereby amended as follows:
1. Incorporation of Terms and Conditions of Credit Agreement. All of the
terms and conditions of the Credit Agreement (including, without
limitation, all definitions set forth therein) are specifically
incorporated herein by reference. All capitalized terms not otherwise
defined herein shall have the same meaning as in the Credit Agreement.
2. Representations and Warranties. Each Borrower hereby represents and
warrants that (i) no Default by any Borrower exists under the Credit
Agreement or under any other Loan Document, and (ii) all
representations and warranties contained in the Credit Agreement and
the other Loan Documents are true and correct as of the date hereof.
3. Amendment to Article I of the Credit Agreement. Section 1.01 of the
Credit Agreement is hereby amended as follows:
a. The definition of "Permitted Investments" is hereby deleted in
its entirety and the following substituted in its stead:
"Permitted Investments" means each of the following:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full
faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition
thereof;
(b) United States Government Obligations - Any
obligation including Federal Agency Securities issued,
sponsored or backed by the United States Government with a
maturity of 365 days or less with a credit rating of at least
"AAA" as used by S&P or "Aaa" as used by Xxxxx'x;
(c) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in
clause (a) above (without regard to the limitation on maturity
contained in such clause) and entered into with a financial
institution satisfying the criteria described in clause (e)
below or with one of the primary dealers regulated by the
Federal Reserve that is at least 102% collateralized by US
Government Obligations;
(d) Investments in commercial paper issued by a
domestic corporation maturing within 270 days from the date of
purchase and having, at such date of purchase, a credit rating
of at least "A-2" or "P-2" from S&P or from Xxxxx'x;
(e) Investments in certificates of deposit, banker's
acceptances and time deposits maturing within 365 days from
the date of acquisition thereof issued or guaranteed by or
placed with, and demand deposit and money market deposit
accounts, and master notes issued or offered by, any domestic
office of any commercial bank or financial institution
organized under the laws of the United States of America or
any State thereof that has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(f) Variable Rate Demand Obligations or Notes which
have a rating of at xxxxx "X0" by S&P or "P1" by Xxxxx'x or
which are backed by letters of credit, liquidity facilities or
special purchaser's agreement with a financial institution
satisfying the criteria described in clause (e) above and
maturing not later than 365 days after purchase;
(g) Money Market Funds which comply with the
provisions of Rule 2a-7 of the Securities and Exchange
Commission or any investment fund regulated and advised by a
Registered Investment Advisor under Rule 3c-7 or money market
funds which comply with the provisions of Rule 3c-7 of the
Securities and Exchange Commission;
(h) Shares of mutual funds which have a rating of at
least "AA" as used by S&P or "Aa" as used by Xxxxx'x and have
a weighted average maturity of 365 days or less when
purchased;
(i) Auction Rate Securities or Auction Preferred
Stock-ARS, SAVRS, having a rating of single A or better by one
of the national rating agencies and with an auction period of
no longer than 90 days;
(j) Asset-backed commercial paper which matures not
later than 270 days following the date of purchase and which
certificates are rated at least "A-2" from S&P or "P-2" from
Xxxxx'x;
(k) Obligations of any corporation organized under the
laws of any state of the United States of America or under the
laws of any other nation, payable in the United States of
America, maturing within 365 days from the date of purchase
and having a rating of at least "A" by S&P or Xxxxx'x at the
time of purchase;
provided that, notwithstanding the foregoing, after the
occurrence and during the continuance of a Cash Dominion
Event, no such Investments shall be made by a Borrower (and no
Investments then existing shall be extended past the then
maturity date thereof) unless (i) either (A) no Loans are then
outstanding, or (B) the Investment is a temporary Investment
pending expiration of an Interest Period for a LIBO Loan or a
BA Equivalent Loan, the proceeds of which Investment will be
applied to the Obligations after the expiration of such
Interest Period, and (ii) such Investments are pledged by the
applicable Borrower to the Collateral Agent as additional
collateral for the Obligations and Other Liabilities pursuant
to such agreements as may be reasonably required by the
Agents.
4. No Further Modification. Except as expressly modified in the manner set
forth above, the Credit Agreement and the other Loan Documents shall
remain unmodified and in full force and effect.
5. No Claims; Waiver. Each Borrower acknowledges, confirms and agrees that
as of the date hereof such Borrower has no knowledge of any offsets,
defenses, claims or counterclaims against the Lender with respect to,
under or relating to the Loan, the Loan Documents, or the transactions
contemplated therein, and, to the extent that such Borrower has or has
ever had any such offsets, defenses, claims or counterclaims arising on
or before the date hereof, such Borrower hereby specifically WAIVES and
RELEASES any and all rights to such offsets, defenses, claims or
counterclaims.
6. Binding Agreement. The terms and provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their heirs,
representatives, successors and assigns.
7. Multiple Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original and together
which shall constitute but one and the same instrument.
8. Governing Law; Sealed Instrument. This Amendment shall be construed,
governed, and enforced pursuant to the laws of The Commonwealth of
Massachusetts (except and as to the limited extent expressly provided
in the Credit Agreement) and shall take effect as a sealed instrument.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by each of the parties hereto as a sealed instrument as of the date first above
written.
CIRCUIT CITY STORES, INC.
as Lead Borrower and Borrower
By: /s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
Treasurer and Controller
CIRCUIT CITY STORES WEST COAST, INC.
as Borrower
By: /s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
ORBYX ELECTRONICS,
LLC as Borrower By
its sole member
Circuit City
Stores West Coast,
Inc.
By: /s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
INTERTAN CANADA LTD., as Canadian Borrower
By: /s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Sen. V.P. General Counsel
FLEET RETAIL GROUP, INC.,
as Agent, and as Domestic Lender
By: /s/Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
BANK OF AMERICA, N.A., [acting
through its Canada branch], as Canadian
Lender
By: /s/Xxxxxx Lam_______
Name: Xxxxxx Lam_________________
Title: Vice President____________
GENERAL ELECTRIC CAPITAL
CORPORATION, as Domestic Lender
By: /s/Xxxx Gromski____________________
Name: Xxxx Gromski_________________
Title: Duly Authorized Signer_____
GE CANADA FINANCE HOLDING
COMPANY, as Canadian Lender
By: /s/Xxxxxxx X.Smith______________
Name: Xxxxxxx X. Smith_____________
Title: President_________________
CONGRESS FINANCIAL
CORPORATION (CENTRAL), as
Domestic Lender
By: /s/Xxxxx Wheeland_______________
Name: Xxxxx Wheeland____________
Title: Vice President__________
CONGRESS FINANCIAL
CORPORATION (CANADA), as Canadian
Lender
By: /s/Xxxxx Wheeland_______________
Name: Xxxxx Wheeland____________
Title: Vice President__________
XXXXX FARGO FOOTHILL, LLC, as
Domestic Lender
By: /s/Xxxxx Glebrial______________
Name: Xxxxx Glebrial_____________
Title: Vice President___________
THE CIT GROUP/BUSINESS CREDIT,
INC., as Domestic Lender
By: /s/Xxxxxx Schuit___________________
Name: Xxxxxx Schuit_______________
Title: Vice President________
NATIONAL CITY BUSINESS CREDIT,
INC., as Domestic Lender
By: /s/Xxxxxx X. Kwasny___________
Name: Xxxxxx X. Kwasny_________
Title: Director_______________
XX XXXXXX CHASE BANK, N.A.,
formerly known as XX XXXXXX XXXXX
BANK, as Domestic Lender
By: /s/Xxxxx X. Barbato____________
Name: Xxxxx X. Barbato_________
Title: Vice President________
FIFTH THIRD BANK, as
Domestic Lender
By: /s/Xxxxx X. Melin______________
Name: Xxxxx X. Melin____________
Title: Vice President__________
SIEMENS FINANCIAL SERVICES, INC.,
as Domestic Lender
By: /s/Xxxxx Amodio____________
Name: Xxxxx Amodio_____________
Title: Vice President- Credit___
