SECOND AMENDMENT TO SENIOR SECURED, SUPER-PRIORITY, DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Exhibit
10.4
SECOND AMENDMENT TO SENIOR
SECURED, SUPER-PRIORITY,
DEBTOR-IN-POSSESSION CREDIT
AGREEMENT
This
Second Amendment to Senior Secured, Super-Priority Debtor-in-Possession Credit
Agreement (the “Second Amendment”) is made as of the 19th day of December, 2008
by and among
CIRCUIT
CITY STORES, INC., as debtor and debtor-in-possession, 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., as debtor and debtor-in-possession;
CIRCUIT
CITY STORES WEST COAST, INC., as debtor and debtor-in-possession, a corporation
organized under the laws of the State of California having a place of business
at 000 X. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000;
Circuit
City Stores PR, LLC, as debtor and debtor-in-possession, a limited liability
company organized under the laws of the Commonwealth of Puerto Rico having a
place of business at San Xxxxxxxx Plaza 3369, Local X-00 Xx Xxxxx &
Xxxxxxxx, Xxxxxxxx, Xxxxxx Xxxx;
InterTAN
Canada Ltd., as a debtor company, 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;
the
LENDERS party hereto;
Bank of
America, N.A., as Administrative Agent and Collateral Agent for the Lenders and
the Issuing Bank, a national banking corporation, having its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
BANK OF
AMERICA (acting through its Canada branch), as Canadian Administrative Agent and
Canadian Collateral Agent for Lenders having a Canadian Commitment, a banking
corporation carrying on business under the Bank Act (Canada), having a
place of business at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx; Xxxxxxx, Xxxxxx X0X
0X0;
GENERAL
ELECTRIC CAPITAL CORPORATION, N.A., as Co-Collateral Agent;
XXXXX
FARGO RETAIL FINANCE, LLC, as Syndication Agent; and
GENERAL
ELECTRIC CAPITAL CORPORATION and JPMORGAN CHASE BANK, N.A., as Co-Documentation
Agents;
in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS,
the Lead Borrower and the other Borrowers, the Agents, the Lenders, the Issuing
Bank, the Co-Collateral Agent, the Syndication Agent, the Co-Documentation
Agents have entered into a Senior Secured, Super-Priority Debtor-in-Possession
Credit Agreement dated as of November 12, 2008 (as amended, modified or
supplemented prior to the date hereof, the “DIP Credit Agreement”);
WHEREAS,
the Lead Borrower and the other Borrowers, the Agents, the Lenders, the Issuing
Bank, the Co-Collateral Agent, the Syndication Agent, and the Co-Documentation
Agents have agreed to amend certain provisions of the Credit Agreement, on the
terms and conditions set forth herein; and
WHEREAS,
the Agents, the Lenders, the Issuing Bank, the Co-Collateral Agent, the
Syndication Agent, and the Co-Documentation Agents have agreed to consent to (i)
terms and conditions of that certain stipulation (the “Stipulation”) amending
the Consumer Credit Card Program Agreement, dated as of January 16, 2004 by and
among Chase Bank USA, N.A. and the Lead Borrower and (ii) entry of the
Stipulation by the US Bankruptcy Court, on the terms and conditions set forth
herein.
NOW
THEREFORE, it is hereby agreed as follows:
|
1.
|
Definitions:
All capitalized terms used herein and not otherwise defined shall have the
same meaning herein as in the DIP Credit
Agreement.
|
|
2.
|
Amendments to Article
I The provisions of Article I of the DIP Credit
Agreement are hereby amended as
follows:
|
|
a.
|
The
definition of “Availability Reserves” is hereby amended by deleting the
parenthetical in the first line thereof and by substituting the following
in its stead:
|
“(including
the Directors’ Charge, the Administration Charge, the Professional Fee Carve Out
and the then amount of the Other Carve Out Amounts)”
|
b.
|
The
definition of “Borrowing Base” is hereby amended by adding the words “and
the then amount of the Other Carve Out Amounts” at the end of clause (f)
thereof.
|
|
c.
|
The
following new definition is hereby added in appropriate alphabetical
order:
|
“Other Carve Out
Amounts” means the “Carve Out” as defined in the Interim Borrowing Order
or Final Borrowing Order, as applicable, but without duplication of the
Professional Fee Carve Out.
|
3.
|
Amendment to Article
II. The provisions of Article II of the DIP Credit
Agreement are hereby amended by adding “and the then amount of the Other
Carve Out Amounts” at the end of the first sentence of Section
2.29(a).
|
|
4.
|
Amendments to Article
V. The provisions of Article V of the DIP Credit
Agreement are hereby amended as
follows:
|
|
a.
|
Section
5.15 of the DIP Credit Agreement is hereby deleted in its entirety and the
following substituted in its stead:
|
SECTION
5.15 Intentionally
Omitted.
|
b.
|
Section
5.18(d) of the DIP Credit Agreement is hereby deleted in its entirety and
the following substituted in its
stead:
|
(d) The
Domestic Borrowers shall take the actions set forth in a certain side letter
dated as of December 19, 2008 by and among the Domestic Borrowers and the
Administrative Agent and submitted to the U.S. Bankruptcy Court, in each case on
or before the dates set forth in such side letter.
|
5.
|
Amendments to Article
VI. The provisions of Article VI of the DIP Credit
Agreement are hereby amended as
follows:
|
|
a.
|
The
provisions of Section 6.12 of the DIP Credit Agreement are hereby deleted
in their entirety and the following substituted in their
stead:
|
SECTION
6.12 Intentionally
Omitted.
|
b.
|
The
provisions of Section 6.13 of the DIP Credit Agreement are hereby amended
by adding “and the then amount of the Other Carve Out Amounts” after
“Professional Fee Carve Out” in clauses (b) and (d)(i)
thereof.
|
|
6.
|
Amendment to Article
VII. The provisions of Article VII of the DIP Credit
Agreement are hereby amended as
follows:
|
|
a.
|
Section
7.01 of the DIP Credit Agreement is hereby amended by deleting the
parenthetical at the end of clause (s) thereof and by substituting the
following in its stead:
|
“(in each
case, other than the Professional Fee Carve Out, the then amount of the Other
Carve Out Amounts, the Administration Charge, the Directors’ Charge and the
claim of the lenders under the Term Loan)”
|
b.
|
Section
7.04(a) of the DIP Credit Agreement is hereby amended by adding “and the
then amount of the Other Carve Out Amounts” at the end of clause FIRST
thereof.
|
|
7.
|
Amendment to DIP
Orders. The Borrowers and the Required Lenders hereby
agree that the terms of the DIP Orders may be amended as
follows:
|
|
a.
|
to
extend the Challenge Period Termination Date (as defined in the DIP
Orders) until March 1, 2009.
|
|
b.
|
to
provide that fifty percent (50%) of the net proceeds, if any, received by
the DIP Lenders under the DIP Lenders’ Charge set forth in clause six of
Section 44 of the Initial Order (as amended and in effect) entered into
the CCAA proceedings of InterTAN Canada Ltd. shall be paid to the Debtors’
estates (to the extent allowed by the Canadian bankruptcy court) and not
applied in reduction of the DIP Obligations or the Pre-Petition
Debt.
|
|
c.
|
to
permit the proceeds from the Domestic Loan Parties’ furniture, Fixtures
and Equipment to be retained by the estate and not applied in reduction of
the Obligations.
|
|
d.
|
to
provide that the Administrative Agent and the Required Lenders may agree
in their discretion to amendments consisting of changes to the DIP Orders
which are not material, including, without limitation, the granting of
adequate protection to certain creditors which have filed objections to
the DIP Orders.
|
|
8.
|
Consent. The
Required Lenders hereby consent to the (i) terms and conditions of the
Stipulation and (ii) entry of the Stipulation by the US Bankruptcy
Court.
|
|
9.
|
Conditions to
Effectiveness. This Second Amendment shall not be
effective until each of the following conditions precedent have been
fulfilled or waived to the satisfaction of the
Agents:
|
|
a.
|
This
Second Amendment shall have been duly executed and delivered by the Loan
Parties, the Agents and the Required Lenders. The
Administrative Agent shall have received a fully executed copy hereof and
of each other document required
hereunder.
|
|
b.
|
All
action on the part of the Loan Parties necessary for the valid execution,
delivery and performance by the Borrowers of this Second Amendment shall
have been duly and effectively taken (including, without limitation, entry
of the Final Borrowing Order).
|
|
c.
|
No
Default or Event of Default shall have occurred and be
continuing.
|
|
d.
|
All
conditions to effectiveness of this Second Amendment shall have been
satisfied on or before December 22,
2008.
|
|
10.
|
Miscellaneous.
|
|
a.
|
Except
as provided herein, all terms and conditions of the DIP Credit Agreement
and the other Loan Documents remain in full force and
effect. The Borrowers each hereby ratify, confirm, and reaffirm
all of the representations, warranties and covenants therein
contained.
|
|
b.
|
The
Borrowers shall pay all reasonable out-of-pocket costs and expenses
incurred by the Agent in connection with this Second Amendment, including,
without limitation, all reasonable attorneys’
fees.
|
|
c.
|
This
Second Amendment may be executed in several counterparts and by each party
on a separate counterpart, each of which when so executed and delivered,
each shall be an original, and all of which together shall constitute one
instrument. Delivery of an executed counterpart of a signature
page hereto by telecopy or electronic delivery shall be effective as
delivery of a manually executed counterpart
hereof.
|
|
d.
|
This
Second Amendment expresses the entire understanding of the parties with
respect to the matters set forth herein and supersedes all prior
discussions or negotiations hereon.
|
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
executed and their seals to be hereto affixed as the date first above
written.
CIRCUIT
CITY STORES, INC.,
(“Lead
Borrower”)
By_________________________________
Print
Name:__________________________
Title:_______________________________
“The
Borrowers”
CIRCUIT
CITY STORES WEST COAST, INC.
By_________________________________
Print
Name:_________________________
Title:_______________________________
CIRCUIT
CITY STORES PR, LLC
By_________________________________
Print
Name:__________________________
Title:_______________________________
BANK OF
AMERICA, N.A.
By_________________________________
Print
Name:__________________________
Title:_______________________________
BANK OF
AMERICA, N.A. (acting through its Canada branch)
By_________________________________
Print
Name:__________________________
Title:_______________________________
WACHOVIA
CAPITAL FINANCE CORPORATION (CENTRAL)
By_________________________________
Print
Name:__________________________
Title:_______________________________
GENERAL
ELECTRIC CAPITAL CORPORATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
JPMORGAN
CHASE BANK, N.A.
By_________________________________
Print
Name:__________________________
Title:_______________________________
NATIONAL
CITY BUSINESS CREDIT, INC.
By_________________________________
Print
Name:__________________________
Title:_______________________________
GMAC
COMMERCIAL FINANCE, LLC
By_________________________________
Print
Name:__________________________
Title:_______________________________
XXXXX
FARGO RETAIL FINANCE, LLC
By_________________________________
Print
Name:__________________________
Title:_______________________________
BURDALE
FINANCIAL, LTD.
By_________________________________
Print
Name:__________________________
Title:_______________________________
FIFTH
THIRD BANK
By_________________________________
Print
Name:__________________________
Title:_______________________________
TEXTRON
FINANCIAL CORPORATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
SUNTRUST
BANK
By_________________________________
Print
Name:__________________________
Title:_______________________________
UPS
CAPITAL CORPORATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
XXXXXXX
BUSINESS CREDIT CORPORATION
By_________________________________
Print
Name:__________________________
Title:_______________________________
PNC BANK,
N.A.
By_________________________________
Print
Name:__________________________
Title:_______________________________
UBS LOAN
FINANCE LLC
By_________________________________
Print
Name:__________________________
Title:_______________________________
CAPITAL
ONE LEVERAGE FINANCE CORP.
By_________________________________
Print
Name:__________________________
Title:_______________________________
1122553.9
