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 9950 Mayland Drive, Richmond, Virginia, 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 680 S. Lemon Avenue, Walnut,
California 91789;
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 Patricio Plaza 3369,
Local C-02 St Ebano & Tabonuco, Guaynabo, Puerto
Rico;
InterTAN Canada
Ltd., as a debtor company, a corporation organized under the laws
of the Province of Ontario, Canada, having its head office at 279
Bayview Drive, Barrie, Ontario, Canada L4M 4W5;
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 100 Federal Street,
Boston, Massachusetts 02110;
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 200 Front
Street West, Toronto; Ontario, Canada M5V 3L2;
GENERAL
ELECTRIC CAPITAL CORPORATION, N.A., as Co-Collateral
Agent;
WELLS 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:
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Definitions : All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the DIP
Credit Agreement.
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Amendments
to Article I The provisions of Article I of the
DIP Credit Agreement are hereby amended as follows:
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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:
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“(including the Directors’ Charge,
the Administration Charge, the Professional Fee Carve Out and the
then amount of the Other Carve Out Amounts)”
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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.
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The following
new definition is hereby added in appropriate alphabetical
order:
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“
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.
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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).
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Amendments
to Article V . The provisions of Article V of the
DIP Credit Agreement are hereby amended as follows:
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Section 5.15 of
the DIP Credit Agreement is hereby deleted in its entirety and the
following substituted in its stead:
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SECTION
5.15 Intentionally Omitted .
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Section 5.18(d)
of the DIP Credit Agreement is hereby deleted in its entirety and
the following substituted in its stead:
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