THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Third
Amendment") dated as of October 18, 2005 among
CIRCUIT CITY STORES, INC., a corporation organized under the laws of the
Commonwealth 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, LLC (f/k/a Fleet Retail Group, Inc.), as Administrative
Agent and Collateral Agent for the Lenders (the "Agent"), a Delaware
limited liability company, 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
(as amended and in effect, the "Credit Agreement"); and
WHEREAS, the Borrowers and the Lenders desire to amend and modify certain
terms and provisions of the Credit Agreement as provided herein;
NOW THEREFORE, in consideration of the mutual promises and agreements
herein contained, the parties hereto hereby agree that the Credit Agreement are
hereby amended as follows:
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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, as applicable.
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. Amendments to Credit Agreement.
a. Amendments to Article I of the Credit Agreement. Section 1.01 of the
Credit Agreement is hereby amended as follows:
i. The definition of "Canadian Availability" is hereby amended by
deleting the number "$50,000,000" and substituting the number
"$100,000,000" in its stead.
b. Amendments to Article II of the Credit Agreement. The provisions of
Article II of the Credit Agreement are hereby amended as follows:
i. Section 2.01(a)(ii)(B) is hereby amended by deleting the number
"$50,000,000" and substituting the number "$100,000,000" in its
stead.
ii. Section 2.07(a) is hereby amended by deleting the number
"$50,000,000" in clause (ii) of the proviso thereto and
substituting the number "$100,000,000" in its stead.
c. Amendment to Schedules. Schedule 1.1 to the Credit Agreement is hereby
deleted in its entirety and a new Schedule 1.1 in the form annexed
hereto substituted in its stead.
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.
6. Conditions to Effectiveness. This Third Amendment shall not be effective
until each of the following conditions precedent have been fulfilled to the
satisfaction of the Agent:
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a. This Third Amendment shall have been duly executed and delivered by the
Borrowers, the Agent and Lenders. The Agent shall have received a fully
executed copy hereof and of each other document required hereunder.
b. All action on the part of the Borrowers necessary for the valid
execution, delivery and performance by the Borrowers of this Third
Amendment shall have been duly and effectively taken. The Agent shall
have received from the Borrowers true copies of the resolutions
authorizing the transactions described herein, each certified by their
secretary or other appropriate officer to be true and complete.
c. The Borrowers shall have reimbursed the Agent for all expenses incurred
in connection herewith, including, without limitation, reasonable
attorneys' fees.
d. After giving effect to this Third Amendment, no Default or Event of
Default shall have occurred and be continuing.
e. The Borrowers shall have provided such additional instruments and
documents, as the Agent and its counsel may have reasonably requested.
7. 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.
8. Multiple Counterparts. This Third 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.
9. Governing Law; Sealed Instrument. This Third 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.
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IN WITNESS WHEREOF, this Third 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. Dunn___
Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
Treasurer and Controller
CIRCUIT CITY STORES WEST COAST, INC.
as Borrower
By: /s/Xxxxxx X. Dunn_
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. Dunn________
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
INTERTAN CANADA LTD., as Canadian Borrower
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Treasurer______________________
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FLEET RETAIL GROUP, LLC.,
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 Xxx
Name: Xxxxxx Lam_______________
Title: Vice President________
GENERAL ELECTRIC CAPITAL
CORPORATION, as Domestic Lender
By: /s/Xxxxx Winslow___________________
Name: Xxxxx Winslow________________
Title: Duly Authorized Signatory_
GE CANADA FINANCE HOLDING
COMPANY, as Canadian Lender
By: /s/Xxxx X. Morrone______________
Name: Xxxx X. Morrone_________
Title: Senior Vice 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_______________
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XXXXX FARGO FOOTHILL, LLC, as
Domestic Lender
By: /s/ Xxxxx Arenson______________
Name: Xxxxx Arenson________________
Title: A.V.P._______________________
THE CIT GROUP/BUSINESS CREDIT,
INC., as Domestic Lender
By: /s/Xxxxx Putzer_____________________
Name: Xxxxx Putzer______________
Title: Senior Vice President________
NATIONAL CITY BUSINESS CREDIT,
INC., as Domestic Lender
By: /s/Xxx Kwasny_____________________
Name: Xxx Kwasny____________________
Title: Director_____________________
JPMORGAN CHASE BANK, N.A.,
formerly known as JPMORGAN CHASE
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__
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