Exhibit 10(a)


AGREEMENT


by and among


REX RADIO AND TELEVISION, INC., REX ALABAMA,
INC., KELLY & COHEN

APPLIANCES, INC. and STEREO TOWN, INC., as Seller,

REX STORES CORPORATION,


and


APPLIANCE DIRECT, INC., as Purchaser


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AGREEMENT


          THIS
AGREEMENT (this “Agreement”) is made as of the 29th day of January, 2009 (the “Effective
Date”), by and between REX RADIO AND TELEVISION, INC., an Ohio corporation
(“Seller One”), KELLY & COHEN APPLIANCES, INC., an Ohio corporation
(“Seller Two”), and STEREO TOWN, INC., a Georgia corporation (“Seller
Three”), REX ALABAMA, INC., an Ohio corporation (“Seller Four”)
(collectively, Seller One, Seller Two, Seller Three and Seller Four, “Seller”),
REX STORES CORPORATION, a Delaware corporation (“REX Stores”), all
having an address at 2875 Needmore Road, Dayton, OH 45414, and APPLIANCE
DIRECT, INC., a Florida corporation (“Purchaser”), having an address at
397 North Babcock Street, Melbourne, Florida 32935.


RECITALS


	
 

	
 


	
 

	
A. Seller is
 the owner of the Assets (as defined below) and desires to sell the Assets to
 Purchaser, subject to the terms and conditions of this Agreement. 


	
 

	
 


	
 

	
B. Seller is
 the owner of the Properties (as defined below) and desires to lease the
 Properties, subject to the terms and conditions of this Agreement. 


	
 

	
 


	
 

	
C. Purchaser
 desires to purchase the Assets and lease the Properties, subject to the terms
 and conditions of this Agreement. 





          NOW,
THEREFORE, in consideration of the mutual agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:


SECTION 1 DEFINITIONS


          The
following capitalized terms shall have the meanings set forth in this Section 1
for all purposes under this Agreement:


          “Agreement”
shall have the meaning set forth in the first paragraph hereof.


          “Appliances”
shall have the meaning set forth in Section 2.1(a).


          “Assets”
shall have the meaning set forth in Section 2.1.


          “Bill
of Sale and Assignment” shall have the meaning set forth in Section
4.2(a)(vii).


          “Business
Day” shall have the meaning set forth in Section 14.10.


          “Closing”“
shall mean the consummation of the transactions described herein as more fully
described in Section 4 below.


          “Closing
Date” shall mean January 30, 2009.


          “Closing
Statement” shall have the meaning set forth in Section 5.1(a).


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          “Creditors’
Rights Statutes” shall have the meaning set forth in Section 6.1(k). 


          “Delivery
Items” shall have the meaning set forth in Section 3.1(a). 


          “Due
Diligence Period” shall have the meaning set forth in Section 3.2. 


          “Effective
Date” shall have the meaning set forth in the first paragraph hereof. 


          “Equipment”
shall have the meaning set forth in Section 2.1(b). 


          “General
Warranty Period” shall have the meaning set forth in Section 3.5. 


          “Governmental
Notices” shall have the meaning set forth in Section 3.1(a)(iv). 


          “Implementation
Date” shall have the meaning set forth in Section 2.6.


          “Implementation
Schedule” shall have the meaning set forth in Section 2.6.


          “Indemnitee”
shall have the meaning set forth in Section 6.4. 


          “Indemnitor”
shall have the meaning set forth in Section 6.4. 


          “Inspections”
shall have the meaning set forth in Section 3.2.


          “Lease”
shall have the meaning set forth in Section 2.2. 


          “Leased
Properties” shall have the meaning set forth in Section 2.3. 


          “Notice”
shall have the meaning set forth in Section 10.


          “Person”
shall mean an individual, corporation, partnership, limited liability company,
association, trust or any other entity or organization, including a government
or political subdivision or any agency or instrumentality thereof.


          “Prohibited
Transaction” shall have the meaning set forth in Section 14.13. 


          “Property”
or “Properties” shall have mean each location listed on Exhibit 2.2.



          “Proposed
Transaction” shall mean the transactions contemplated by this Agreement. 


          “Purchase
Option Agreements” shall have the meaning set forth in Section 6.1(c). 


          “Purchase
Price” shall have the meaning set forth in Section 2.4.


          “Purchaser”
shall have the meaning set forth in the first paragraph hereof. 


          “Required
Consents” shall have the meaning set forth in Section 6.1(g). 


          “Restricted
Parties” shall mean and include REX Stores and each of the Sellers.


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          “REX
Stores” shall have the meaning set forth in the first paragraph hereof.


          “Right
of First Refusal Agreements” shall have the meaning set forth in Section
6.1(c).


          “Seller”
shall have the meaning set forth in the first paragraph hereof.


          “Seller
One” shall have the meaning set forth in the first paragraph hereof.


          “Seller
Three” shall have the meaning set forth in the first paragraph hereof.


          “Seller
Two” shall have the meaning set forth in the first paragraph hereof.


          “Service
Contracts” shall have the meaning set forth in Section 3.1(a)(viii).


          “Sites”
shall mean the sites of each Property identified on Exhibit 2.2 or Exhibit
2.3 attached hereto.


          “Surviving
Obligations” shall mean all obligations of Purchaser or Seller hereunder
that expressly survive the Closing or termination of this Agreement.


          “Wholesale
Cost of Appliance Inventory” shall have the meaning set forth in Section
2.4.


All terms
defined in this Agreement in the singular shall have comparable meanings when
used in the plural and vice versa.


SECTION 2 AGREEMENT TO SELL AND PURCHASE


          2.1
Assets to be Purchased. “Assets” means all right, title and
interest of Seller in, to and under all assets used in or related to the
conduct of Seller’s businesses at each of the Properties or Leased Properties,
including, without limitation:


	
 

	
 


	
 

	
          (a)
 all Whirlpool appliances located at each Site as of the “Implementation Date”
 as hereinafter defined (the “Appliances”); 


	
 

	
 


	
 

	
          (b)
 all furniture, fixtures and equipment (including computer and
 telecommunications equipment and point of sale equipment), furniture and
 furnishings, and other tangible or fixed assets owned by Seller at each of
 the Properties or Leased Properties listed or described on Schedule 2.1(b)
 (the “Equipment”); 


	
 

	
 


	
 

	
          (c)
 all of the Service Contracts and Permits; 


	
 

	
 


	
 

	
          (d)
 Seller’s intangibles rights to any telephone numbers of Seller, permits, guarantees
 and warranties, excluding Seller’s right, title and interest (if any) in and
 to the trade names “REX”, “Rex Radio and Television”, “Rex Television and
 Appliance Centers”, “Rex TV & Appliance Centers”, “rexstores.com”, “Kelly
 & Cohen Appliances”, “Stereo Town”, and “T.V. & Stereo Town” or any
 variation thereof; and 





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          (e)
 all unliquidated warranty claims which Seller may have against any person or
 entity arising out of, or related to, the Appliances.





          “Permits”
means those federal, state, local or other governmental licenses, permits,
consents, approvals and authorizations listed or described on Schedule
2.1(c).


          2.2
Leases. (a) Subject to the terms and conditions of this Agreement, at
Closing, Purchaser shall execute and deliver counterparts of a lease in
the form of Exhibit 2.2(a) attached hereto with Seller, as landlord, and
Purchaser (or its nominee or nominees), as tenant, for the Properties (each, a
“Lease”). The delineation of the Properties and which Property is owned
by Seller One, Seller Two and Seller Three is set forth in Exhibit 2.2
attached hereto. Each Lease shall be for an initial term of six and one quarter
(6.25) years with one (1) five (5) year option to renew. The lease rate shall
be $65,000, $75,000 and $85,000 annually for each Property in first through
third lease years, respectively, year four shall be at the rate of $75,000 and
subsequent years, including years 4, 5 and 6 shall include annual CPI
increases. The lease terms shall be triple net and include a cross default
provision for all the Properties. Each Lease shall grant Purchaser an option to
be exercised once to terminate the leases on up to ten (10) of the Properties,
with not less than six (6) months notice, without penalty, twenty-four (24)
months following commencement of the lease. Upon six (6) months notice prior to
the expiration of the initial terms of 6.25 years, Purchaser may exercise its
option to renew leases as to specific locations on a site by site basis without
limitation on quantity. Each Lease shall include an option for Purchaser to
purchase all of the Properties during the first two (2) years of the lease
term. During the initial six (6) months of the initial term, the option shall
be at a fixed price of $70.00 per square foot and during the following eighteen
(18) months of the initial term at $76.00 per square foot. Seller agrees to
provide Purchaser with financing of eighty percent (80%) loan to cost at an
interest rate equal to WSJ Prime, plus two percent (2%) with an annual interest
rate floor of 6.25% per annum and with an amortization period of twenty years.
Additionally, Seller financing provided herein shall have a balloon of all
unpaid principal at thirty-six (36) months from the closing of the purchase of
the Properties. Purchaser and Seller shall agree that all costs customarily
born by buyer/mortgagors and sellers/mortgagees shall be born by the respective
party based upon the custom of the county and state in which the real property
is located. Purchaser and Seller agree at the request of either party to record
in the applicable public records a memorandum of interest identifying
Purchaser’s option to purchase the Properties. 


          2.3
Leased Properties. Purchaser shall use good faith efforts to negotiate,
subject to the terms and conditions of this Agreement, either (i) an
assumption of Seller’s existing leases (“Assumption”) or (ii) new leases (“New
Lease”) for the properties identified on Exhibit 2.3 attached hereto
(the “Leased Properties”). If Purchaser is successful in negotiating
either an Assumption or a New Lease at Purchaser’s option, such sites shall be
added to the Implementation Schedule and the parties shall execute an amendment
to this Agreement reflecting the revised Implementation Schedule.
Notwithstanding the foregoing, Seller shall have the right, in its sole
discretion, on or after February 28, 2009, to cease operations of any or all of
the Leased Properties and terminate any or all of the employees at each of the
Leased Properties subsequent to February 27, 2009. 


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          2.4
Purchase Price. The aggregate price to be paid for the Assets shall be
the total wholesale cost of Seller’s Whirlpool Appliance inventory as of
the “Implementation Date” as hereinafter defined, as the same may be adjusted
as provided below plus One and 00/100 Dollar ($1.00) (collectively the “Purchase
Price”). Seller’s wholesale cost of its Whirlpool Appliance inventory shall
mean the lesser of (i) Seller’s manufacturer cost, net of all manufacturer
credits, including volume rebate, damage, advertising/co-op credit, etc. or
(ii) Purchaser’s manufacturer cost, net of all manufacturer credits, including
volume rebate, damage, advertising/co-op credit, etc, (the “Wholesale Cost
of Appliance Inventory”), provided, however, any Appliances held in
Seller’s inventory at the Site as of its Implementation Date which have been in
Seller’s inventory for greater than twelve (12) months shall at fifty percent
(50%) of the Wholesale Cost and any Appliance that is deemed “scrap” shall be
retained by Seller. The Wholesale Cost of Appliance Inventory shall be
calculated on behalf of Purchaser and Seller by the manufacturer by providing
the aggregate price to the parties as calculated based upon Seller’s inventory
of Appliance as of the Implementation Date and shall be paid to Seller by the
applicable manufacturer. Purchaser shall, prior to the Closing Date, arrange
any financing arrangements necessary to allow it to purchase the Appliances
directly with the respective manufacturers of such Appliances or through third
party financing such that Seller shall receive a credit or payment from the
respective manufacturers on the Implementation Date on terms acceptable to
Seller. Purchaser and Seller may reach an agreement following closing and
during implementation concerning the Purchaser’s potential purchase of Seller’s
Frigidaire Appliances remaining at each Property or Leased Property as of the
Implementation Date for each Site. Any Appliances held in Seller’s inventory at
the Site as of its Implementation Date which have been in Seller’s inventory
for greater than twelve (12) months shall be re-billed to Purchaser by
manufacture(s) at fifty percent (50%) of the Wholesale Cost. Any appliances in
Seller’s inventory at the Site as of its Implementation Date which are “scrap”
shall be re-billed to Purchaser by the respective manufacturer at a rate of
$0.01 for each scrap Appliance. 


          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, Seller’s profit in the Book Value of Seller’s
Frigidaire and Whirlpool appliances’ ESP for the Properties and Leased Properties (“Seller’s Profit”).
Seller’s Profit shall be equal to Seller’s Book Value (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) less
Seller’s cost to transfer the ESP related to the Properties and Leased
Properties (the “ESP Credit”). Seller shall arrange for the transfer of
its entire ESP to a company of its selection. For the purposes of this
provision, Seller’s profit in the Book Value of Seller’s Frigidaire and
Whirlpool appliances shall be allocated on the profit of the overall Seller
portfolio. As of the Implementation Date for each Site, Purchaser shall
place into escrow, pursuant to
an agreement to be mutually acceptable to the parties, with Dinsmore &
Shohl LLP as escrow agent, an amount equal to forty percent (40%) of the ESP
Credit (the “Escrowed Funds”) applicable to that Site. The Escrowed
Funds shall be used to offset Purchaser’s obligation for rent under the Leases
as follows: beginning with the “Rent Commencement Date” as defined in each
Lease, the Escrow Agent shall transfer to Seller, as payment for Purchaser’s
rent obligation under the Lease, an amount equal to the then due monthly rent
for each Lease for which Purchaser’s obligation to pay rent has commenced;
provided that the total of all amounts drawn from the Escrowed Funds shall at
no time exceed that proportion of the Escrowed Funds determined by multiplying the
Escrowed Funds by a 


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fraction, the
numerator of which is all of the Properties which Purchaser has accepted
delivery and possession and the denominator of which is the total number of
Properties.


          2.6
Implementation Schedule. The Properties and Leased Properties shall be
turned over to Purchaser on the date specified (the “Implementation
Date”) on the implementation schedule attached as Exhibit 2.6 hereto
(the “Implementation Schedule”). 


          2.7
Rex Gift Cards. Seller agrees to reimburse Purchaser for those gift
cards issued by Seller which Purchaser honors after the Closing.
Purchaser shall forward to Seller invoices indicating the purchase and amount
of the gift card honored and Seller shall pay the amount of the gift card
honored within thirty (30) days of receipt of the request for reimbursement. 


SECTION 3 SELLER’S DELIVERIES; CONDITIONS
PRECEDENT


          3.1
Seller’s Deliveries.


          (a)
Seller has provided or will provide within five (5) Business Days prior to the
Implementation Date, to Purchaser, to the extent within Seller’s possession or
control, true, correct and complete copies of the following items relating to
the ownership and operation of the Properties being turned over as of such
Implementation Date (collectively, the “Delivery Items”):


	
 

	
 


	
 

	
(i) existing
 engineering or property condition reports; 


	
 

	
 


	
 

	
(ii) permits
 and licenses for the Property, including, without limitation, certificates of
 occupancy, if in Seller’s possession; 


	
 

	
 


	
 

	
(iii) all
 reciprocal easement agreements, operating agreements, development agreements
 and other similar agreements, declarations, deeds and instruments relating to
 the integrated use, operation and maintenance of the Properties and
 properties in the vicinity of, adjacent to, contiguous with, or peripheral to
 the Properties (each, an “REA”); 


	
 

	
 


	
 

	
(iv) copies
 of all notices, correspondence and files from governmental authorities
 relating to the Properties, including notices of building safety, health code
 or environmental violations, and all files related thereto in Seller’s
 possession or control (the “Governmental Notices”); 


	
 

	
 


	
 

	
(v) the
 latest real and personal property tax bills for the Properties and of any
 pending property tax complaints or proceedings; 


	
 

	
 


	
 

	
(vi) any and
 all notices, correspondence, files, pleadings or other documents relevant to
 Purchaser’s evaluation of pending or threatened claims or litigation by any
 Person relating to or affecting the Properties, including, without
 limitation, claims or litigation relating to the REAs and including, without
 limitation, 





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information
 regarding pending lawsuits affecting the Properties, even if covered by
 insurance;


	
 

	
 


	
 

	
(vii) all
 warranties or guarantees regarding major systems or structural items
 comprising part of the Properties; and 


	
 

	
 


	
 

	
(viii) all
 service, vendor, equipment leasing, management, development and other
 contracts relating to the operation or maintenance of the Real Property (the
 “Service Contracts”), each as identified on Schedule 3.1(a)(viii)
 attached hereto. 





          3.2
Inspections and Access. At any reasonable time and from time to time
prior to the close of business January __, 2009 (the “Due Diligence
Period”) or earlier termination of this Agreement, Purchaser and its
representatives shall be permitted (i) to enter upon the Properties or Leased
Properties to examine, inspect and investigate the same, and (ii) to access all
books, records, drawings and other documentation relating to the Properties or
the Leased Properties in the possession or control of Seller (collectively, the
“Inspections”). Purchaser agrees to use commercially reasonable efforts
to (1) keep the purpose of the Inspections confidential and (2) not disclose
the existence of or terms of this Agreement to any of Seller’s personnel
located at the retail operations at the Properties or Leased Properties;
provided, however, that the foregoing shall not prohibit any disclosure
required pursuant to any federal or state law or regulation or by governmental
authorities. Seller shall cooperate with Purchaser in conducting the
Inspections, which cooperation shall include, without limitation facilitating
interviews with Leased Property landlords. Seller agrees to respond promptly to
any inquiry which Purchaser may make from time to time, and shall instruct its
property manager and other agents and employees to give specific answers to
Purchaser’s inquiries from time to time relating to the condition and operation
of the Properties. Notwithstanding any other provision of this Agreement, no
Inspections shall constitute a waiver or relinquishment on the part of
Purchaser of its rights under any covenant, condition, representation, or
warranty of Seller under this Agreement. 


          Purchaser
agrees to indemnify, defend and hold Seller harmless from and against any and
all claims, losses or damages suffered or incurred by Seller to the extent
directly resulting from Purchaser’s or its agents’ negligence or willful
misconduct in connection with the Inspections, and Purchaser agrees to restore
any Property damaged by the Inspections to its condition prior to Purchaser’s
Inspections to the extent practicable; provided, however, that Purchaser’s
foregoing obligations shall specifically exclude any damages arising as a
result of Purchaser’s discovery of any condition existing on the Property prior
to Purchaser’s entry on the Property. The provisions of the immediately
preceding sentence of this Section 3.2 shall survive termination of this
Agreement for three hundred sixty five (365) days, if this Agreement shall be
terminated.


          3.3
Additional Conditions to Purchaser’s Obligation to Close. (a) In
addition to all other conditions set forth herein, the obligation of Purchaser
to consummate the transactions contemplated hereunder shall be contingent on
the following:


	
 

	
 


	
 

	
(i) Seller’s
 representations and warranties contained herein shall be true, correct and
 complete in all material respects as of the Closing Date;





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(ii) As of
 the Closing Date, the Seller shall have performed its obligations hereunder
 and all deliveries to be made by Seller at Closing have been tendered; 


	
 

	
 


	
 

	
(iii)
 Purchaser shall have negotiated acceptable leases or assignments of leases
 for the Leased Properties; 


	
 

	
 


	
 

	
(iv) At no
 time on or before the Closing Date shall any of the following have occurred
 with respect to Seller and/or REX Stores: (1) the commencement of a case
 under Title 11 of the U.S. Code, or under any other applicable federal or
 state bankruptcy or similar law; (2) the appointment of a trustee or receiver
 of any property interest; (3) an assignment for the benefit of creditors; (4)
 an attachment, execution or other judicial seizure of a substantial property
 interest; or (5) a dissolution or liquidation; 


	
 

	
 


	
 

	
(v) Approval
 by manufacturer(s) of Purchaser’s purchase of the Assets contemplated by this
 Agreement on terms and conditions acceptable to Purchaser in Purchaser’s sole
 and absolute discretion including the determination of the Wholesale Price; 


	
 

	
 


	
 

	
(vi)
 Confirmation by manufacturer(s) of the willingness and ability to supply
 inventory to Purchaser at quantities acceptable to Purchaser for the Sites. 


	
 

	
 


	
 

	
(vii)
 Assignment to Purchaser of all warranties provided by equipment vendors; 


	
 

	
 


	
 

	
(viii)
 Completion of a program in which employees of Purchaser are trained by Seller
 (or Seller’s designee) in the operation and recommended maintenance of
 Seller’s POS system; 


	
 

	
 


	
 

	
(ix) The
 absence of any condition that would render Purchaser incapable of operating a
 store or stores identified on Exhibit 2.2 and Exhibit 2.3; 


	
 

	
 


	
 

	
(x) Receipt
 of all consents and approvals required for the Seller’s sale and transfer to
 Purchaser of the Assets, if applicable; and 


	
 

	
 


	
 

	
(xi)
 Purchaser being satisfied with the level of employee retention at the sites
 sufficient to meet Purchaser’s needs in its sole discretion. 





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(b) If any of
the conditions set forth in Section 3.3(a)(i) through (xii) are not satisfied
on the Closing Date, Purchaser may elect either to (i) terminate this
Agreement, or (ii) to the extent such failure constitutes a default by Seller,
exercise its rights under Section 13. In the event of the termination of this
Agreement pursuant to this Section 3.3, each party shall pay any costs
theretofore incurred by it, whereupon neither party shall have any additional
liability hereunder and this Agreement shall be terminated, except for the
Surviving Obligations.


          3.4
Additional Conditions to Seller’s Obligations to Close. (a) In addition
to all other conditions set forth herein, the obligation of Seller to
consummate the transactions contemplated hereunder shall be contingent on the
following: 


	
 

	
 


	
 

	
(i)
 Purchaser’s representations and warranties contained herein shall be true,
 correct and complete in all material respects as of the Closing Date; and 


	
 

	
 


	
 

	
(ii) As of
 the Closing Date, Purchaser shall have performed its obligations hereunder
 and all deliveries to be made by Purchaser at Closing have been tendered. 





(b) If any of
the conditions set forth in Section 3.4(a)(i) or (ii) are not satisfied on the
Closing Date, Seller may elect either to (i) terminate this Agreement, or (ii)
to the extent such failure constitutes a default by Purchaser, exercise its
rights under Section 13. In the event of the termination of this Agreement
pursuant to this Section 3.4, Purchaser shall promptly return to Seller the
Delivery Items, and each party shall pay any costs theretofore incurred by it,
whereupon neither party shall have any additional liability hereunder and this
Agreement. 


          3.5
Covenants Regarding Property Condition. All materials, Equipment and
systems incorporated at each Property or Leased Property shall be
suitable for use under the normal operating conditions in existence at the Site
at which it is located, and otherwise consistent with and in compliance with
the ordinary use and purpose of the Equipment. The Equipment shall perform its
intended functions. If Purchaser notifies Seller in writing during the General
Warranty Period (as defined below), or no later than thirty (30) days after the
expiration of the General Warranty Period, that a breach of the foregoing
warranty has occurred during the General Warranty Period, Seller shall correct
(or cause to be corrected) the defects and deficiencies promptly at no cost to
Purchaser. The “General Warranty Period” shall be ninety (90) days from
the Implementation Date for the respective Property. The terms “defects” and
deficiencies” shall not include damage arising from Purchaser’s misuse or
negligence, acts of God or normal wear and tear. Seller shall enforce all
corresponding warranties provided by equipment vendors, and if Seller fails to
do so, Purchaser shall have the right to enforce such warranties directly
against the equipment vendors. At Purchaser’s election, Seller shall arrange
for (or enter into and assign to Purchaser at the Closing) long-term service
agreements with respect to major equipment on terms acceptable to Purchaser. 


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SECTION 4 CLOSING


          4.1
Time and Place. The Closing shall be held on the Closing Date in the offices
of counsel to Purchaser or counsel to Purchaser’s lender, or at any
other location mutually acceptable to the parties. 


          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 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) on the
 Implementation Date for each Site, the ESP Payment; 


	
 

	
 


	
 

	
(v) the
 Leases; 


	
 

	
 


	
 

	
(vi) 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 “Bill
 of Sale and Assignment”); and 


	
 

	
 


	
 

	
(vii)
 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) on the
 Implementation Date for each Site, the ESP Escrow; 


	
 

	
 


	
 

	
(ii)
 evidence of Purchaser’s authority to consummate the transactions described
 herein; 





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(iii) on the
 Implementation Date for each Property, evidence of insurance required under
 the Leases; 


	
 

	
 


	
 

	
(iv) the
 Leases; and 


	
 

	
 


	
 

	
(v) on the
 Implementation Date for each Site, the Bill of Sale and Assignment. 





          (c)
Possession. Seller shall deliver actual possession of the Properties to
Purchaser pursuant to the Implementation Schedule set forth in Schedule
2.6. 


SECTION 5 PRORATIONS/PAYMENT OF PURCHASE
PRICE


          5.1
Prorations and Adjustments.


          (a)
A statement of prorations and other adjustments shall be prepared by Seller for
each Property as of the Implementation Date for that Property in conformity
with the provisions of this Agreement and submitted to Purchaser for review and
approval not less than three (3) Business Days prior to the Implementation Date
for that Property (the “Closing Statement”). For purposes of prorations
and other adjustments under this Section 5, Purchaser shall be deemed the
tenant of a Property as of 12:00 a.m. on the Implementation Date for that
Property. Subject to the foregoing, and in addition to other adjustments that
may be provided for in this Agreement, the following items with respect to each
Property are to be prorated or adjusted, as the case may require, as of the
Implementation Date:


	
 

	
 


	
 

	
(i) With
 respect to each Property, except any Leased Property: 


	
 

	
 








	
 

	
 


	
 

	
        A.
 real estate taxes and assessments; 


	
 

	
 


	
 

	
        B.
 charges and payments to be made by Seller pursuant to any REA encumbering or
 benefiting the Property; 


	
 

	
 


	
 

	
        C.
 water, electric, telephone and all other utility and fuel charges; 


	
 

	
 


	
 

	
        D.
 assignable license and permit fees; and 


	
 

	
 


	
 

	
        E.
 other operating expenses and any other customarily apportioned items. 








	
 

	
 


	
 

	
(ii)
 Generally:


	
 

	
 








	
 

	
 


	
 

	
        A.
 Real estate taxes shall be initially prorated on the basis of 100% of the
 most recent ascertainable bill, but subject to reproration upon issuance of
 the actual bills therefor to effectuate the actual proration. Real estate
 taxes shall be apportioned on the basis of the fiscal period for which
 assessed. If as of the Implementation Date any of the Properties or any





-12-






	
 

	
 


	
 

	
portion
 thereof shall be affected by any special or general assessments which are or
 may become payable in installments of which the first installment is then a
 lien and has become payable, responsibility for the payment of any unpaid
 installments of such assessments which are due prior to the Implementation
 Date shall be allocated to Seller, and Purchaser shall be responsible to pay
 only the installments which are due on or after the Implementation Date, and
 Purchaser or Seller shall make a payment to the other to the extent necessary
 so that the total amount of such special or general assessment is apportioned
 as provided above. Except with respect to general real estate taxes (which
 shall be reprorated upon the issuance of the actual bills, if necessary), any
 proration which must be estimated as of the Implementation Date shall be
 reprorated and finally adjusted as soon as practicable after the
 Implementation Date, with any refunds payable to Seller or Purchaser to be
 made as soon as practicable. Seller shall have the right to prosecute and
 continue to prosecute subsequent to the Implementation Date any tax
 certiorari proceedings for the tax year in which the Implementation Date
 occurs and all prior tax years. Any refunds obtained, net of the reasonable
 expenses incurred in obtaining such refund, with any portion thereof
 allocable to periods subsequent to the date preceding the Implementation
 Date, shall be paid to Purchaser and the remainder to be paid to Seller.


	
 

	
 


	
 

	
          B.
 Water, electric, telephone and all other utility and fuel charges shall be
 prorated ratably on the basis of the last ascertainable bills (and reprorated
 upon receipt of the actual bills or invoices) unless final meter readings and
 final invoices can be obtained. To the extent practicable, Seller shall cause
 meters for utilities to be read not more than ten (10) Business Days prior to
 the Implementation Date.





          (b)
On the Implementation Date, the parties shall execute a Closing Statement for
each Property being turned over to Purchaser which will reflect the prorations
for that Property, including prorated rent under the Lease for that Property
and payment of that portion of the Purchase Price allocable to that Property’s
Whirlpool Appliances inventory as well as an amendment to the Lease specifying
the Rent Commencement date for that Property. 


          (c)
The provisions of this Section 5 shall survive the Closing. 


          5.2
Post Implementation Adjustments. All items to be adjusted, for which
figures are not available as of the Implementation Date, will be adjusted and payment
therefor will be made by Seller to Purchaser or by Purchaser to Seller, as the
case may be, as soon as figures are available after the Implementation Date.
Purchaser or Seller, as appropriate, will deliver simultaneously with such
payment any and all data, information or other backup it may have with respect
to such payment and/or such proration so as to fully indicate to the other
party the calculation of the amount of payment contained therewith. Further, in
the event either Seller or Purchaser determine that an item adjusted as of the
Implementation Date was adjusted incorrectly, Purchaser or Seller, as
appropriate, will deliver to the other party all data, information or other
backup it may have with respect to such incorrect adjustment and the parties


-13-






shall correct
the adjustment with the appropriate party making payment to the party entitled
to such payment.


SECTION 6 REPRESENTATIONS AND WARRANTIES


          6.1
Seller’s Representations and Warranties. Seller represents and warrants to Purchaser as follows:


          (a)
Seller has the legal power, right and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. Neither this Agreement
nor the transactions contemplated hereby will require any approval of the
shareholders of REX Stores. This Agreement and the transactions contemplated
hereby have been approved by the Board of Directors of REX Stores. 


          (b)
Neither the execution and delivery of this Agreement nor the consummation of
the transactions herein contemplated conflict with or result in the material
breach of any terms, conditions or provisions of or constitute a default under,
any bond, note or other evidence of indebtedness or any agreement to which
Seller is a party. 


          (c)
To Seller’s knowledge, no Person other than Purchaser has an option or right of
first refusal to purchase the Assets or any Property or any portion thereof,
except as set forth on Schedule 6.1(c)(i) (the “Purchase Option
Agreements”) and Schedule 6.1(c)(ii) (the “Right of First Refusal
Agreements”). The copies of the Purchase Option Agreements and Right of
First Refusal Agreements delivered by Seller to Purchaser are true,
correct and complete. 


          (d)
To Seller’s knowledge, there is no pending or threatened condemnation action
affecting any Property. 


          (e)
To Seller’s knowledge, except as set forth on Schedule 6.1(e) attached
hereto, there is no action, suit or proceeding pending or, to Seller’s
knowledge, threatened against Seller in any court or by or before any other
governmental agency or instrumentality which would affect any of the Assets,
the Properties or would materially and adversely affect the ability of Seller
to carry out the transactions contemplated by this Agreement. 


          (f)
To Seller’s knowledge, neither Seller nor any other party under any REAs is in
default under any REAs in any material respect. 


          (g)
To Seller’s knowledge after due inquiry, neither this Agreement nor the
transactions contemplated hereby will constitute a breach or violation of, or
default under, or will be modified, restricted or precluded by, the REAs or any
other agreement binding Seller or the Properties, provided that Seller obtains
the consents from the parties identified on Schedule 6.1(g) attached
hereto (the “Required Consents”) in form and substance satisfactory to Purchaser. Neither this Agreement nor the
transactions contemplated hereby
will constitute a breach or violation of, or default under, or will be
modified, restricted or precluded by, or any other agreement to which Seller is
a party or by which Seller or any Property is bound.


          (h)
Seller has obtained or will obtain prior to Closing the Required Consents.


-14-






          (i)
Seller is not required to make any filing with, or to obtain any permit,
authorization, consent or approval of, any governmental or regulatory authority
(including, without limitation, any securities exchange) as a condition to the
execution and delivery or performance of this Agreement and the consummation of
transactions contemplated hereby. 


          (j)
The Assets will be conveyed to Purchaser at Closing free and clear of any and
all liens, encumbrances, charges or adverse interests. 


          (k)
Neither Seller nor any of the entities constituting Seller: (i) is “insolvent”
or will be, after completion of the transactions contemplated hereby, rendered
“insolvent”, as the term “insolvent” is used in the Bankruptcy Code or in the
Uniform Fraudulent Conveyance Act as enacted in either any state in which any
Property is located or the state in which Seller’s principal office is located
(the “Creditors’ Rights Statutes”); (ii) has, or after completion of the
transactions contemplated hereby will be left with, an unreasonably small
capital within the meaning of the Creditors Rights Statutes; (iii) in entering
into and carrying out its obligations hereunder, intends to incur, or believes
that it will incur, debts beyond its ability to satisfy such debts as they
mature within the meaning of the Creditors Rights Statutes; (iv) has commenced
a case under Title 11 of the U.S. Code, or under any other applicable federal
or state bankruptcy or similar law; (v) appointed a trustee or receiver of any
property interest; (vi) made an assignment for the benefit of creditors; (vii)
suffered an attachment, execution or other judicial seizure of a substantial
property interest; (viii) suffered a dissolution or liquidation; or (ix)
suffered the discontinuation of trading of shares on the New York Stock
Exchange; 


          (l)
The representations and warranties of Seller set forth in this Agreement are
true, accurate and complete; and do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statement therein not misleading. 


Whenever in
this Agreement there is a reference to the “knowledge” of Seller, such term
refers to the actual (as opposed to the constructive or imputed) knowledge,
with no duty to undertake inquiries or investigations, of (i) Stuart Rose,
Chief Executive Officer of REX Stores, and (ii) Douglas Bruggeman, Chief
Financial Office of REX Stores. 


          6.2
Purchaser’s Representations and Warranties. Purchaser hereby represents
and warrants to Seller as follows: 


	
 

	
 


	
 

	
          (a)
 Purchaser has the legal power, right and authority to enter into this
 Agreement and to consummate the transactions contemplated hereby. 


	
 

	
 


	
 

	
          (b)
 Neither the execution and delivery of this Agreement nor the consummation of
 the transactions herein contemplated conflict with or result in the material
 breach of any terms, conditions or provisions of or constitute a default
 under, any bond, note, or other evidence of indebtedness or any agreement to
 which Purchaser is a party. 


	
 

	
 


	
 

	
          (c)
 This Agreement and all other documents and instruments executed by such
 Purchaser pursuant to this Agreement have been duly executed and constitute
 valid 





-15-






	
 

	
 


	
 

	
and binding
 obligations of such Purchaser, enforceable against such Purchaser in
 accordance with its respective terms.





          6.3
Survival. The representations and warranties of Seller and Purchaser set
forth in this Agreement shall be deemed remade as of Closing, and said
representations and warranties as so remade shall survive Closing for a period
of three hundred sixty five (365) days after the Closing Date (other than the
representations made in Sections 6.1(a) and 6.2(a), which shall have no
expiration date), after which all of the representations and warranties of
Seller and Purchaser set forth in this Agreement shall become void and of no
further force or effect. 


          6.4
Indemnification. Seller hereby indemnifies and agrees to defend, hold
harmless and protect Purchaser, each partner or shareholder, as the case
may be, in Purchaser, and their respective officers, directors, members,
shareholders, partners, employees, agents and consultants, from and against any
and all loss, costs, expenses (including reasonable attorneys’ fees),
obligations, liabilities, claims (including any claim for damage to property or
injury to death of any persons), liens, or encumbrances, but not consequential
damages, punitive damages or lost profits, arising from: (i) the Properties and
arising or accruing on or before the Closing Date, including, without
limitation, matters arising under Environmental Laws or relating to Hazardous
Materials; (ii) any act, conduct, omission, contract or commitment of Seller
occurring on or before the Closing Date; or (iii) any material inaccuracy in or
material breach of any representation or warranty of Seller resulting from any
breach or default by Seller under this Agreement, provided the claim for
indemnity was timely made during the survival period set forth in Section 6.3
above. The party claiming indemnification under this Section 6.4 or under
Section 3.2(c), Section 9 or Section 14.14 hereof (the “Indemnitee”)
shall notify the other party (the “Indemnitor”) of any such claim for
indemnification within forty-five (45) days after the Indemnitee receives
notice of the basis for such claim, but failure to notify the Indemnitor shall
in no case limit the obligations of the Indemnitor under this Section 6.4
except to the extent Indemnitor shall be prejudiced by such failure. Should
Indemnitor fail to discharge or undertake to defend against such claim upon
learning of the same, then the Indemnitee may litigate or settle such liability
or submit such liability to arbitration or other alternative dispute resolution
in its reasonable discretion and Indemnitor’s liability shall include, but not
be limited to, the amount of such settlement. The provisions of this Section
6.4 shall survive the Closing for a period of two (2) years, if the Closing
shall occur, and shall survive termination of this Agreement, if this Agreement
shall be terminated. 


SECTION 7 PURCHASE AS-IS


          EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN THIS
AGREEMENT, PURCHASER WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT
PURCHASER IS PURCHASING THE PROPERTIES IN THEIR “AS-IS, WHERE IS” CONDITION
“WITH ALL FAULTS” AS OF THE CLOSING DATE AND SPECIFICALLY AND EXPRESSLY WITHOUT
ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO
THEIR CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY
OTHER WARRANTY OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF
SELLER.


-16-






SECTION 8 CLOSING COSTS


          8.1
Seller’s Closing Costs. Seller shall pay the following expenses incurred
in connection with the transactions described herein Seller’s legal
fees. 


          8.2
Purchaser’s Closing Costs. Purchaser shall pay the following expenses
incurred in connection with the transactions described herein: (a)
Purchaser’s legal fees and expenses, (b) the cost to obtain new leases for the
Leased Properties, if any, and (c) the cost to complete any of Purchaser’s due
diligence. 


SECTION 9 BROKERAGE COMMISSIONS


          Seller
and Purchaser each warrant and represent to the other that neither has had any
dealings with any broker, agent or finder relating to the sale of any Property
or the other transactions contemplated hereby except Brown Gibbons Lang &
Company whose fee shall be paid by Seller. Each agrees to indemnify, defend and
hold the other harmless from and against any claim for brokerage commissions,
compensation or fees by any broker, agent or finder in connection the sale of
any Property or the other transactions contemplated hereby resulting from the
acts of the indemnifying party. This Section 9 shall survive the Closing, if
the Closing shall occur, and shall survive termination of this Agreement, if
this Agreement shall be terminated.


SECTION 10 NOTICE


          All
notices, demands and communications (a “Notice”) under this Agreement
shall be delivered or sent by: (a) first class, registered or certified mail,
postage prepaid, return receipt requested, (b) nationally recognized overnight
courier, or (c) facsimile with confirmation of receipt of such facsimile,
addressed to the address of the intended recipient set forth below or to such
other address as either party may designate by notice pursuant to this Section.
Notices shall be deemed given upon receipt or refusal. Any notice may be given
by counsel to the party giving such notice.


	
 

	
 

	
 


	
 

	
Notices to
 Seller:

	
Rex Radio and Television,
 Inc.


	
 

	
 

	
Kelly &
 Cohen Appliances, Inc.


	
 

	
 

	
Stereo Town,
 Inc.


	
 

	
 

	
Rex Alabama,
 Inc.


	
 

	
 

	
2875
 Needmore Road


	
 

	
 

	
Dayton, OH
 45414


	
 

	
 

	
Attn:
 Douglas Bruggeman


	
 

	
 

	
Ph.
 (937)279-3931


	
 

	
 

	
Fax.
 (937)279-8643


	
 

	
 

	
 


	
 

	
With a copy
 to:

	
Dinsmore & Shohl LLP


	
 

	
 

	
10
 Courthouse Plaza SW, Suite 1100


	
 

	
 

	
Dayton, Ohio
 45402


	
 

	
 

	
Attn: Edward
 M. Kress and Karen R. Adams


	
 

	
 

	
Ph.
 (937)449-2830 and (937)449-2825


	
 

	
 

	
Fax.
 (937)463-4947





-17-






	
 

	
 

	
 


	
 

	
Notices to
 Purchaser:

	
Appliance
 Direct, Inc.


	
 

	
 

	
397 N.
 Babcock


	
 

	
 

	
Melbourne,
 Florida 32935


	
 

	
 

	
Attn: Sam
 Pak


	
 

	
 

	
Ph. (321)
 255-3200


	
 

	
 

	
Fax. (321)
 255-5866


	
 

	
 

	
 


	
 

	
With a copy
 to:

	
Schillinger
 & Coleman, P.A.


	
 

	
 

	
1311 Bedford
 Drive, Suite 1


	
 

	
 

	
Melbourne,
 FL 32940


	
 

	
 

	
Christopher
 J. Coleman


	
 

	
 

	
Ph:
 (321)255-3737


	
 

	
 

	
Fax:
 (321)255-3141





SECTION 11 CASUALTY AND CONDEMNATION


          11.1
Casualty. If any Property is damaged by fire or other casualty prior to
the Implementation Date and the cost to repair would exceed twenty-five
percent (25%) of the value of the retail space for such Property, then either
Seller or Purchaser may terminate this Agreement, but only with respect to the
Property that is affected by such casualty, by written notice to Seller given
on or before the earlier of (i) twenty (20) days following such casualty or (ii)
the Implementation Date. In the event of such termination, all exhibits and
schedules hereto and definitions herein shall be deemed modified to remove such
affected Property. If neither Seller or Purchaser are entitled to terminate
this Agreement with respect to the affected Property pursuant to the foregoing
(or otherwise under this Agreement) or, either Seller or Purchaser are so
entitled to terminate this Agreement, but do not elect to do so, then the
Property shall be delivered to Purchaser on the Implementation Date, including,
without limitation, without abatement of the Purchase Price and with Seller’s
delivery of the Lease, executed by Seller, for the affected Property, and
Seller shall assign and transfer to Purchaser on the Implementation Date, without
warranty or recourse, (A) all of Seller’s right, title and interest in and to
all insurance proceeds paid or payable to Seller on account of such fire or
casualty (less Seller’s reasonable costs of collection thereof and, provided
that Seller obtained Purchaser’s prior written approval therefor, the
reasonable amounts spent by Seller toward the restoration or repair of the
Property, as supported by reasonable evidence of such expenditures provided to
Purchaser), and (B) all of Seller’s rights under any contract with respect to
any restoration or repair. Seller shall credit Purchaser the amount of the
deductible except to the extent that Seller has already expended the deductible
on the aforementioned restoration or repair costs, as supported by reasonable
evidence of such expenditures provided to Purchaser. 


          11.2
Condemnation. If a Property or any portion thereof is taken in eminent
domain proceedings prior to the Implementation Date, and if such taking
materially adversely interferes with the value or operation of such Property,
Purchaser may, as its sole and exclusive right and remedy, terminate this
Agreement, but only with respect to the Property that is affected by such
taking, by notice to Seller given on or before the earlier of (a) twenty (20)
days after such taking or (b) the Implementation Date. In the event of such
termination, all exhibits and schedules 


-18-






hereto and
definitions herein shall be deemed modified to remove such affected Property.
If Purchaser is not entitled to or does not elect to so terminate, the Property
shall be delivered to Purchaser on the Implementation Date, including, without
limitation, and Seller shall assign and transfer to Purchaser on the
Implementation Date, without warranty or recourse, all of Seller’s right, title
and interest in and to all condemnation awards paid or payable to Seller on
account of such eminent domain proceedings (if any) less Seller’s reasonable
costs of collection thereof and, provided that Seller obtained Purchaser’s
prior written approval therefor, the reasonable amounts spent by Seller toward
the restoration or repair of the Property, as supported by reasonable evidence
of such expenditures.


SECTION 12 OPERATIONS PRIOR TO CLOSING OR
TERMINATION


          Seller
covenants and agrees with Purchaser that after the date hereof until the
Implementation Date for each Site or termination of this Agreement, Seller
shall conduct its business involving the Properties as follows:


          (a)
Seller shall not transfer title to any Property or create any easements or
mortgages encumbering any Property that will survive past the Implementation
Date. 


          (b)
Subject to 12(c)-(d) below, Seller shall not enter into or amend the Service
Contracts or any other contracts affecting the Properties, other than contracts
entered into in the ordinary course of business and which are cancelable by the
owner of such Property without penalty or fee at or prior to the Implementation
Date. 


          (c)
Seller shall not amend or agree to amend any REA without Purchaser’s prior
written consent, which Purchaser shall not unreasonably withhold or delay, and
Seller shall pay and perform or cause to be paid and performed Seller’s
obligations under the REAs and otherwise comply with the requirements of the
REAs. 


          (d)
Seller shall maintain or cause to be maintained the Properties in the same
condition and repair as existed as of the date Purchaser completes its due
diligence, normal wear and tear and damage by fire or other casualty excepted,
in which case Section 11 of this Agreement shall control. 


          (e)
Seller shall maintain or cause to be maintained the existing casualty,
liability and other insurance policies relating to the Properties that are
currently maintained by Seller as evidenced by the certificate attached hereto
as Exhibit 12(e).


          (f)
Seller shall promptly deliver to Purchaser copies of any (i) notices received
by Seller from any governmental authority alleging any violation of any
applicable law or ordinance with respect to any Property; (ii) notices from the
parties under the REAs alleging any default or default with the giving of
notice or passage of time, or both, on the part of Seller received by Seller;
or (iii) notices from Seller alleging any default or any event which with the
giving of notice or passage of time, or both, constitutes a default on the part
of any party to the Space Leases or REAs; provided, however, that no such
notice alleging a default on the part of any party to the REAs shall be given
by Seller without Purchaser’s prior consent, which Purchaser may withhold in
its sole discretion. 


-19-






          (g)
Seller shall not institute any zoning proceeding affecting any Property without
Purchaser’s prior written consent, which Purchaser may withhold in its sole
discretion. Seller shall regularly communicate with Purchaser regarding the
status of and developments in any pending property tax complaints or
proceedings. Seller shall deliver written notice to Purchaser prior to
instituting any additional property tax complaints or proceedings.


SECTION 13 DEFAULTS AND REMEDIES


          13.1
Seller Defaults. In the event that Seller, on or prior to the Closing
Date, shall default in the performance of its obligations hereunder (other than
de minimis obligations that do not affect the use or value of the transactions
contemplated hereunder in any material respect), Purchaser, as its sole and
exclusive remedy and in lieu of all other rights or remedies otherwise provided
at law or in equity, may either (a) seek specific performance of Seller’s
obligations hereunder, or (b) terminate this Agreement.


          13.2
Purchaser Defaults. In the event that Purchaser, on or prior to the
Closing Date, shall default in the performance of its obligations under
this Agreement (other than de minimis obligations that do not affect the value
of the transactions contemplated hereunder in any material respect), then
Seller, as its sole and exclusive remedy and in lieu of all other rights or
remedies otherwise provided at law or in equity, may terminate this Agreement
and receive and retain the Earnest Money as full and complete liquidated
damages for such default of Purchaser. The parties hereto acknowledge that it
is impossible to estimate more precisely the damages which might be suffered by
Seller upon Purchaser’s default. Seller’s receipt of the Earnest Money is
intended not as a penalty, but as full liquidated damages. The right to retain
such sums as full liquidated damages is Seller’s sole and exclusive remedy in
the event the purchase and sale of the Property is not consummated because of a
default hereunder by Purchaser, and, upon receipt of such sums, Seller hereby
waives and releases any right to (and hereby covenants that it shall not) sue
Purchaser: (i) for specific performance of this Agreement, or (ii) to recover
actual, punitive, consequential, special or exemplary damages in excess of such
sums in connection with any such default. 


          13.3
Dispute Resolution. All disputes that cannot be resolved between the
respective chief executive officers of the Seller and Purchaser shall be
referred to mediation prior to commencement of litigation. Mediation shall be
held in Brevard County, Florida and shall be conducted by a mediator mutually
acceptable by the parties. If the parties are unable to agree on a mediator,
each party shall nominate a Florida Supreme Court Certified Mediator who shall
jointly select the mediator to be appointed as the mediator for the parties. 


SECTION 14 MISCELLANEOUS


          14.1
Entire Agreement; Amendments. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement of the parties hereto
regarding the purchase and sale of the Properties, and all prior agreements,
understandings, representations and statements, oral or written, including any
so-called offer letters or letters of intent, are hereby merged herein and
superseded hereby. This Agreement may be amended or modified only by an
instrument in writing, signed by the party or parties intended to be bound
thereby.


-20-






          14.2
Time. All parties hereto agree that time is of the essence in the
performance of the provisions of this Agreement. 


          14.3
Counterpart Execution. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an
original. The execution of
this Agreement by facsimile signature or other electronic means shall be
binding and enforceable as an original. 


          14.4
Governing Law. This Agreement shall be deemed to be a contract made under the internal laws of the State of Ohio and for all
purposes shall be
governed by and interpreted in accordance with the laws of the State of Ohio. 


          14.5
Assignment; Third Party Beneficiaries. Neither Purchaser or Seller shall
assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of the other party. Notwithstanding
this foregoing, without the prior written consent of Seller, Purchaser shall
have the right to designate a nominee or nominees to enter into the Leases,
which nominee shall be an affiliate of Purchaser. Subject to the foregoing,
this Agreement shall inure to the benefit of, and shall be enforceable by and
binding upon, the parties hereto and their respective successors and assigns.
Nothing in this Agreement, expressed or implied, is intended to confer any
rights or remedies upon any Person, other than the parties hereto and, subject
to the restrictions on assignment herein contained, their respective successors
and assigns. 


          14.6
Section Headings. The Section headings contained in this Agreement are
for convenience only and shall in no way enlarge or limit the scope or
meaning of the various and several Sections hereof. 


          14.7
Severability. If any portion of this Agreement is held to be
unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall remain in full force and effect. 


          14.8
WAIVER OF TRIAL BY JURY. SELLER AND PURCHASER, TO THE EXTENT THEY
MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING ARISING UNDER OR WITH
RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR
INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS
AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, SELLER AND
PURCHASER HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO
TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY. 


-21-






          14.9
No Waiver. No covenant, term or condition of this Agreement, other than
as expressly set forth herein, shall be deemed to have been waived by
Seller or Purchaser unless such waiver is in writing and executed by Seller or
Purchaser, as the case may be. 


          14.10
Time of Performance. Whenever the time for performance of an obligation
under this Agreement occurs or expires on a day other than a Business
Day, the time for performance thereof shall be extended to the next Business
Day. For the purpose of this Agreement, “Business Day” shall mean any
day other than a Saturday, Sunday, U.S. national holiday or holiday in the
State of Ohio. 


          14.11
Commercially Reasonable Efforts. Between the date of this Agreement and
the Closing Date, REX Stores, Seller and Purchaser shall cooperate with
each other and use commercially reasonable efforts to perform their respective
obligations hereunder and cause to be made the respective deliveries required
to be made by them. 


          14.12
Further Assurances. If at any time any of the parties hereto reasonably
determine that any further assignments, conveyances or assurances are
reasonably necessary or desirable to carry out the provisions hereof and the
transactions contemplated herein, the appropriate parties hereto shall execute
and deliver, or cause to be executed and delivered, any and all proper deeds,
assignments and assurances and to do, or cause to be done, all things
reasonably necessary or proper to carry out fully the provisions hereof. 


          14.13
Non-Solicitation. Seller agrees not to market for a sale, debt
financing, joint venture or other direct or indirect disposition of any
Property or the Properties (each, a “Prohibited Transaction”), negotiate
for any Prohibited Transaction, or accept any offers for a Prohibited
Transaction until the earliest to occur of (a) this Agreement is terminated
with respect to the affected Property pursuant to the terms hereof, or (b) the
termination of this Agreement in its entirety.


          14.14
Joint and Several Liability. The obligations and undertakings of Seller
One, Seller Two and Seller Three and REX Stores under this Agreement are
joint and several. 


          14.15
Press Releases/Announcement to Seller’s Employees. Seller and Purchaser covenant and agree to coordinate press releases
and announcements to
Seller’s employees and third parties regarding this Agreement. 


[signatures on following page]


-22-






          IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the day and year first above written.


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
REX STORES:

	
 

	
PURCHASER:

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
REX STORES CORPORATION,

	
 

	
APPLIANCE DIRECT, INC.,

	
 


	
a Delaware
 corporation

	
 

	
a Florida
 corporation

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
By: 

	
 

	
 

	
 

	
By: 

	
 

	
 

	
 


	
 

	


	
 

	
 

	


	
 


	
 

	
Name:

	
 

	
 

	
Name:

	
 

	
 


	
 

	
 

	
 

	


	
 

	
 

	
 

	


	
 


	
 

	
Title:

	
 

	
 

	
Title:

	
 

	
 


	
 

	
 

	


	
 

	
 

	
 

	


	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
SELLER:

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
REX RADIO
 AND TELEVISION, INC.,

	
 

	
 

	
 

	
 

	
 


	
an Ohio
 corporation

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
By: 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	


	
 

	
 

	
 

	
 


	
 

	
Name:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	


	
 

	
 

	
 

	
 

	
 


	
 

	
Title:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
KELLY & COHEN
 APPLIANCES, INC.,

	
 

	
 

	
 

	
 

	
 


	
an Ohio
 corporation

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
By: 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	


	
 

	
 

	
 

	
 


	
 

	
Name:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	


	
 

	
 

	
 

	
 

	
 


	
 

	
Title:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
STEREO TOWN, INC.,

	
 

	
 

	
 

	
 

	
 


	
a Georgia corporation

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
By: 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	


	
 

	
 

	
 

	
 


	
 

	
Name:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	


	
 

	
 

	
 

	
 

	
 


	
 

	
Title:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
REX ALABAMA, INC.,

	
 

	
 

	
 

	
 

	
 


	
an Ohio
 corporation

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 


	
By: 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	


	
 

	
 

	
 

	
 


	
 

	
Name:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	


	
 

	
 

	
 

	
 

	
 


	
 

	
Title:

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	


	
 

	
 

	
 

	
 

	
 













Exhibit 2.2


Properties


	
 

	
 

	
 

	
 

	
 


	
Lease for

Store Number:

	
 

	
Location:

	
 

	
Landlord


	
 

	
 

	
 

	
 

	
 


	
14

	
 

	
7163 Airport
 Boulevard

	
 

	
 


	
 

	
 

	
Mobile,
 Alabama

	
 

	
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


	
103

	
 

	
Decatur,
 Alabama

	
 

	
Seller One


	
181

	
 

	
Montgomery,
 Alabama

	
 

	
Seller One


	
139

	
 

	
Springdale,
 Arkansas

	
 

	
Seller One


	
154

	
 

	
Brunswick,
 Georgia

	
 

	
Seller Two


	
208

	
 

	
Pocatello,
 Idaho

	
 

	
Seller One


	
228

	
 

	
Ammon, Idaho

	
 

	
Seller One


	
247

	
 

	
Danville,
 Illinois

	
 

	
Seller Two


	
82

	
 

	
Ottumwa,
 Iowa

	
 

	
Seller Two


	
290

	
 

	
Clinton,
 Iowa

	
 

	
Seller Two


	
11

	
 

	
Baton Rouge,
 Louisiana

	
 

	
Seller One


	
264

	
 

	
Monroe,
 Michigan

	
 

	
Seller One


	
17

	
 

	
Gautier,
 Mississippi

	
 

	
Seller One


	
25

	
 

	
Greenville,
 Mississippi

	
 

	
Seller One


	
137

	
 

	
Meridian,
 Mississippi

	
 

	
Seller One


	
138

	
 

	
Columbus,
 Mississippi

	
 

	
Seller One


	
296

	
 

	
Natchez,
 Mississippi

	
 

	
Seller One


	
127

	
 

	
Vicksburg,
 Mississippi

	
 

	
Seller One


	
293

	
 

	
Lumberton,
 North Carolina

	
 

	
Seller Two


	
12

	
 

	
Lima, Ohio

	
 

	
Seller One


	
170

	
 

	
Middletown,
 Ohio

	
 

	
Seller One


	
201

	
 

	
New
 Philadelphia OH

	
 

	
Seller One


	
298

	
 

	
Troy, Ohio

	
 

	
Seller One


	
318

	
 

	
Ponca City,
 Oklahoma

	
 

	
Seller Three


	
85

	
 

	
New Castle,
 Pennsylvania

	
 

	
Seller Two


	
84

	
 

	
Hermitage,
 Pennsylvania

	
 

	
Seller Two


	
62

	
 

	
Rapid City,
 South Dakota

	
 

	
Seller One


	
184

	
 

	
Chattanooga,
 Tennessee

	
 

	
Seller Two


	
207

	
 

	
Morristown,
 Tennessee

	
 

	
Seller Two


	
195

	
 

	
San Angelo,
 Texas

	
 

	
Seller One**


	
215

	
 

	
Manitowoc,
 Wisconsin

	
 

	
Seller One


	
321

	
 

	
Sheboygan,
 Wisconsin

	
 

	
Seller One












Seller Key:


Seller One:
Rex Radio and Television, Inc.


Seller Two:
Kelly & Cohen Appliances, Inc.


Seller Three:
Stereo Town, Inc. 


** Subject to
termination of existing contract to purchase which is anticipated to be
received on February 3, 2009. 


-2-







Exhibit 2.2(a)


Form of Lease


LEASE


          THIS
LEASE, entered into at Melbourne, Florida as of this _______ day of
_____________, 2009 (“Effective Date”) by and between [[Owner]], a[n]
__________________ (“Landlord”), and _________________________________, a
Florida corporation (“Tenant”). 


WITNESSETH:


          IN
CONSIDERATION of the mutual covenants hereinafter contained, and each act
performed hereunder by either of the parties, Landlord and Tenant agree as
follows: 


SECTION 1 BASIC LEASE PROVISIONS 


1.1 This Article I is an integral part
of this Lease and all of the terms hereof are incorporated into this Lease in
all respects. In addition to the other provisions which are elsewhere defined
in this Lease, the following, whenever used in this Lease, shall have the
meanings set forth in this Article I: 


	
 

	
 

	
 


	
 

	
          (a)
 Premises: Property described on Exhibit B attached hereto and made a part
 hereof, together with all buildings and improvements located thereon. The
 building(s) on the Premises contain _____ square feet of gross floor area.


	
 

	
 

	
 


	
 

	
          (b)
 Tenant’s Trade Name: Appliance Direct.


	
 

	
 

	
 


	
 

	
          (c)
 Permitted Use: the sale at retail of consumer appliances, including, but not
 limited to, refrigerators, freezers, vacuum cleaners, washers, dryers,
 dishwashers, stoves/ovens, microwaves, and such other items as determined by
 Tenant together with related accessories, including attendant warehouse space
 (Article VIII).


	
 

	
 

	
 


	
 

	
          (d)
 Lease Term or Term: Period commencing on Delivery of Possession Date and
 ending on six (6) years and three (3) months thereafter (Article III), plus,
 if and upon any exercise by Tenant of any Renewal Term, such Renewal Term(s)
 that has (have) been exercised.


	
 

	
 

	
 


	
 

	
          (e)
 Rent Commencement Date: The Delivery of Possession Date (Article III).


	
 

	
 

	
 


	
 

	
          (f)
 Expiration Date: Seventy Five months from Rent Commencement Date (Article
 III).


	
 

	
 

	
 


	
 

	
          (g)
 Minimum Rent during Lease Term: See Rent Schedule A (Article IV).





-3-






	
 

	
 


	
 

	
          (h)
 Delivery of Possession Date: [[Possession]] (Article VI).


	
 

	
 


	
 

	
          (i)
 Options to Renew: See Rent Schedule A. One (1) period containing five (5)
 lease years (“Renewal Term”); not less than one hundred eighty (180) days
 prior notice to exercise required.








	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
(j)

	
Tenant:

	
 

	
397 North
 Babcock Street


	
 

	
 

	
 

	
 

	
Melbourne, Florida
 32935


	
 

	
 

	
 

	
 

	
Attention:


	
 

	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
Federal I.D.
 #


	
 

	
 

	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
(k)

	
With Copies:

	
 

	
Schillinger
 & Coleman, P.A.


	
 

	
 

	
 

	
 

	
1311 Bedford
 Drive, Suite 1


	
 

	
 

	
 

	
 

	
Melbourne,
 FL 32940


	
 

	
 

	
 

	
 

	
Attention:
 Christopher J. Coleman


	
 

	
 

	
 

	
 

	
 


	
 

	
(l)

	
Landlord:

	
 

	
 


	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
2875
 Needmore Road


	
 

	
 

	
 

	
 

	
Dayton, Ohio
 45414


	
 

	
 

	
 

	
 

	
Federal I.D.
 #


	
 

	
 

	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
 


	
 

	
(m)

	
With Copies:

	
 

	
Dinsmore
 & Shohl LLP.


	
 

	
 

	
 

	
 

	
10
 Courthouse Plaza SW, Suite 1100


	
 

	
 

	
 

	
 

	
Dayton, Ohio
 45402


	
 

	
 

	
 

	
 

	
Attention:
 Edward M. Kress


	
 

	
 

	
 

	
 

	
 


	
 

	
(n)

	
With Copies:

	
 

	
Schillinger
 & Coleman, P.A.


	
 

	
 

	
 

	
 

	
1311 Bedford
 Drive, Suite 1


	
 

	
 

	
 

	
 

	
Melbourne,
 FL 32904


	
 

	
 

	
 

	
 

	
Christopher
 J. Coleman








	
 

	
 


	
 

	
          (o)
 Related Lease(s): Those leases between [each landlord entity] and [each
 tenant entity] identified on Schedule I(2115) attached hereto and made a part
 hereof.





SECTION 2 PREMISES 


2.1 Landlord leases to Tenant, and
Tenant leases from Landlord, the premises described in Article I(A), Section 1
(“Premises”). 


2.2 Landlord reserves the right to
maintain, repair, and replace utility lines under, over, upon or through the
Premises as may be reasonably necessary or advisable so long as Tenant’s use of
the Premises, including uninterrupted utility service, is not adversely
affected. 


-4-






SECTION 3 TERM 


          A.
The terms and provisions of this Lease (excluding specifically, payment of
Minimum Rent as hereinafter defined) shall become effective on the Effective
Date. The Lease Term shall commence upon the Rent Commencement Date and shall
expire on the Expiration Date, unless sooner terminated. The term “lease year”
shall mean a period of twelve (12) consecutive full calendar months, commencing
upon the Rent Commencement Date. If the Rent Commencement Date does not occur
on the first day of a calendar month, the first lease year shall include any
partial calendar month. 


SECTION 4 RENT 


          Minimum
Rent. Tenant agrees to pay to Landlord, at its office or other place as
Landlord may from time to time designate, as “Minimum Rent” for the Premises
during the Lease Term, without any deduction or setoff, the amount(s) set forth
in Schedule A, in advance, on the first day of each calendar month. Minimum
Rent and Additional Rent (as hereinafter defined) shall be prorated on a per
diem basis (based upon a thirty (30) day calendar month) for any partial month
included in the first lease year. 


          Notwithstanding
Tenant’s obligation to pay Minimum Rent and/or Additional Rent as of the first
day of each month during the Lease Term, in the event that an insolvency,
bankruptcy or similar proceeding is filed by or against Tenant, Tenant shall be
obligated to pay all such Minimum Rent and/or Additional Rent on a ratable
basis from the date of the commencement of any such proceeding through the end
of the month in which such proceeding is commenced. 


SECTION 5 TAXES 


5.1 Real Estate Taxes and Assessments.
Tenant agrees to pay all real estate taxes and assessments, both general and
special, levied and assessed against the land, buildings, and all other
improvements which may be added thereto, or constructed within the tax
parcel(s) comprising the Premises which are due and payable during the term of
this Lease (“Taxes”). The term Taxes shall be further defined as the amount set
forth on any invoice or statement issued by the taxing authority for the Premises
tax parcel(s) which is due and payable by Landlord in the calendar month prior
to the accrual of any penalties and/or interest. 


          Tenant
shall pay the Taxes to the taxing authority and, upon Landlord’s request,
provide Landlord with evidence that the Taxes have been. 


SECTION 6 CONSTRUCTION 


6.1 Landlord’s Work. Landlord shall have
no obligation to (i) perform or cause the performance of construction of any
improvements to the Premises or (ii) remove any of the existing improvements,
including, but not limited to, interior or exterior signage currently located
on the Premises. 


6.2 Delivery of Premises. Landlord shall
deliver possession of the Premises to Tenant on the date indicated on the
implementation schedule by and between Tenant and Rex Stores Corporation which
is attached hereto and made a part hereof as Implementation Schedule B. 


-5-






Tenant accepts
the Premises in an “as is” condition. Tenant hereby acknowledges that, except
as provided in Article VI(C), Landlord has made no representations or
warranties to Tenant with respect to the condition of the Premises or the
working order of any systems or improvements therein existing as of the date of
delivery. 


6.3 Landlord Warranty. Landlord
warrants, for ninety (90) days from the Rent Commencement Date (the “Warranty
Period”) that all materials, equipment and systems incorporated into the
Premises shall be suitable for use under normal operating conditions in
existence at the Premises. If Tenant notifies Landlord in writing during the
Warranty Period, or no later than thirty (30) days after the expiration of the
Warranty Period, that the warranty set forth herein has been breached (it being
acknowledged by Tenant that damage arising from Tenant’s misuse or negligence,
acts of God or ordinary wear and tear are not covered by Landlord’s warranty),
Landlord shall cause such defects or deficiencies to be promptly cured at
Landlord’s cost. 


SECTION 7 UTILITIES/ASSESSMENTS 


7.1 Utility Charges. Commencing on the
Delivery of Possession Date, Tenant shall pay for all utilities provided to or
for the benefit of the Premises, including but not limited to water/sewer,
demand or reservation fees, connection fees, tap fees, gas, electricity, fuel,
light, heat, power, telephone, cable, and trash and garbage removal, together
with all taxes levied or other charges on such utilities and governmental
charges based on utility consumption. Tenant shall, at its sole cost and
expense, pay for the cost of installation of meters for the Premises and any
and all related costs and expenses if such meters do not exist at the Premises
on the date possession of the Premises is made available to Tenant. 


7.2 No Landlord Liability. In no event
shall Landlord be liable for the quality, quantity, failure, or interruption of
the foregoing utility services to the Premises. 


7.3 Tenant shall pay, as Additional
Rent, any amounts invoiced to Landlord for common area, private road or other
similar assessments pursuant to covenants or restrictions of record. 


SECTION 8 USE OF PREMISES BY TENANT 


          Tenant’s
Use of Premises. Tenant shall use the Premises only for the uses set forth in
Article I(A), Section 3, of this Lease and for no other purpose. 


SECTION 9 TENANT’S COVENANTS WITH RESPECT TO
OCCUPANCY 


9.1 Tenant agrees: 


	
 

	
 


	
 

	
          (a)
 To occupy the Premises in a safe and careful manner and in compliance with
 all laws, ordinances, rules, regulations and orders of any governmental
 bodies having jurisdiction over the Premises, and without committing or
 permitting waste;


	
 

	
 


	
 

	
          (b)
 To neither do nor suffer anything to be done or kept in or about the Premises
 which contravenes Landlord’s insurance policies or increases the premiums
 therefor;





-6-






	
 

	
 


	
 

	
          (c) To keep its show or display
 windows, canopy and electric signs lighted until at least 9:00 P.M. local
 time of each day (except Sunday, in which event signs will be lighted until
 7:00 P.M. local time) or until thirty (30) minutes after the close of each
 business day, whichever is the later;


	
 

	
 


	
 

	
          (d) To permit no reproduction of sound
 which is audible outside the Premises nor permit odors to be unreasonably
 dispelled from the Premises;


	
 

	
 


	
 

	
          (e) To place no sign on the exterior
 of the Premises without Landlord’s prior written consent, which consent shall
 not be unreasonably withheld, and in accordance with the requirements of
 Exhibit “B” attached hereto; provided, however, that Landlord hereby consents
 to all such signs that are being displayed as of the Effective Date. Tenant
 shall maintain all signs placed upon the Premises by Tenant in good condition
 and repair. Landlord further agrees to permit Tenant to paint the exterior of
 the Premises Tenant’s trademarked colors as used in the majority of Appliance
 Direct retail stores provided (i) the exterior surface of the Premises is not
 brick, and (ii) Tenant obtains the written consent of any governmental entity
 or third party that may have a right to approve exterior finishes of the
 Premises. Upon vacating the Premises, Tenant agrees to remove all signs
 installed by Tenant and repair all damage caused by such removal in
 accordance with Article IX, Section D, of this Lease;


	
 

	
 


	
 

	
          (f) To place no merchandise, sign or
 other thing of any kind in the vestibule or entry of the Premises or on the
 sidewalks or other areas adjacent thereto;


	
 

	
 


	
 

	
          (g) To keep any rubbish, garbage and
 waste generated by Tenant from the Premises in proper dumpsters provided by
 Tenant adjacent to the Premises until such rubbish, garbage and waste is
 removed from the Premises and to permit no refuse to accumulate around the
 exterior of the Premises;


	
 

	
 


	
 

	
          (h) To permit Landlord free access to
 the Premises at all reasonable times for the purpose of examining or making
 repairs to the Premises that Landlord may deem necessary or desirable for the
 safety or preservation thereof;


	
 

	
 


	
 

	
          (i) Not to permit to be attached or
 recorded against the Premises any lien, encumbrance or charge arising out of
 any work performed or materials furnished by any contractor, mechanic,
 laborer, or materialman for or at the request of Tenant. Tenant will not
 enter into any mortgages, conditional sale, security agreement or like
 instrument nor suffer any other matter or thing whereby the estate, right and
 interest of Landlord in the Premises or any part thereof might be impaired or
 diminished. If any lien or notice of lien on account of an alleged debt of
 Tenant or any notice of contract by a party engaged by Tenant or Tenant’s
 contractor to work on the Premises is filed against the Premises, Tenant
 will, within ten (10) calendar days after notice of the filing thereof, cause
 the same to be discharged of record by payment, deposit, bond, order of a
 court of competent jurisdiction, letter of credit or other adequate security.
 If Tenant fails to cause such lien or notice of lien to be discharged within
 such period, Landlord, its managing agent, or Landlord’s lender, may, but
 shall not be obligated to, discharge the same either by paying the amounts
 claimed to be due or by procuring the discharge of such lien by deposit,





-7-






	
 

	
 


	
 

	
bond or
 otherwise, and Tenant shall, immediately upon demand, reimburse Landlord, its
 managing agent, or Landlord’s lender for any and all costs and expenses
 incurred by Landlord, its managing agent, or Landlord’s lender, to discharge
 such lien including, without limitation, all attorneys’ fees, court costs and
 similar expenses, plus an administrative fee equal to fifteen percent (15%)
 of all out of pocket costs incurred by Landlord, its managing agent, or Landlord’s
 lender. In addition, Tenant shall indemnify and hold Landlord, its managing
 agent, and Landlord’s lender, if any, harmless from and against all loss,
 cost, expense and liability whatsoever (including Landlord’s or its managing
 agent’s cost of defending against the foregoing, such cost to include
 attorneys’ fees) resulting or occurring by reason of any claims or causes of
 actions that may arise as a result of any lien, notice of lien or, claim
 relating to work and/or materials furnished to the Premises at the request of
 Tenant, its employees, agents or contractors;


	
 

	
 


	
 

	
          (j) To comply with all reasonable
 rules and regulations which Landlord may from time to time establish for the
 use and care of the Premises;


	
 

	
 


	
 

	
          (k) To permit Landlord or its agents,
 during the ninety (90) day period preceding the expiration of the Term of
 this Lease, to show the Premises to potential tenants, and to place on the
 Premises notices offering the Premises for lease or sale; and


	
 

	
 


	
 

	
          (l) That it shall make no
 installations upon nor any penetrations through the roof or the exterior
 walls of the Premises without the prior written consent of Landlord;
 provided, however, Landlord hereby consents to any existing installations of
 equipment on the roof or the exterior walls as of the date of Delivery of
 Possession Date. Any unauthorized roof installations or penetrations by
 Tenant shall be subject to immediate removal and repair, at Tenant’s sole
 cost and expense, upon notice from Landlord. Repairs shall be made with
 materials of equal or better quality and by contractors approved by Landlord.


	
 

	
 


	
9.2 Pest Control:


	
 

	
 


	
 

	
          Tenant
 shall, at its sole cost and expense, contract for termite and pest
 extermination services covering the Premises.


	
 

	
 


	
 

	
 





SECTION 10 REPAIRS AND ALTERATIONS 


10.1 Repairs by Landlord. This is a
triple net lease and Landlord has no obligation to maintain, repair or replace
any part or component of the Premises except structural components that affect
the structural integrity of the building’s major components including the roof.
Landlord shall commence or complete necessary repairs promptly and adequately
after written notice from Tenant. 


10.2 Repairs by Tenant. Tenant shall keep
the Premises and any fixtures, facilities, signs or equipment contained
therein, in good condition and repair, ordinary wear and tear excepted,
including, but not limited to, non-structural components, exterior and interior
portions of all doors, door checks and operations, windows, plate glass, and
showcases surrounding the Premises, the heating, air conditioning, electrical,
plumbing and sewer systems, the exterior doors, window frames, all portions of
the store front area, signage, sidewalks and the parking lot. 


-8-






Tenant shall
replace all broken and/or cracked plate and window glass which may become
necessary during the Term of this Lease, and any renewals thereof, excepting
any repairs to items of Landlord’s original construction made necessary by
reason of damage due to fire or other casualty covered by standard fire and
extended coverage insurance. If Tenant fails to commence or complete repairs
promptly and adequately after thirty (30) days prior written notice from
Landlord, Landlord may make or complete said repairs and Tenant shall pay the
cost thereof to Landlord upon demand, together with the sum of ten percent
(10%) of said costs for overhead. The provisions of this Article X, Section B,
shall not apply in the case of damage or destruction by fire or other casualty
or by eminent domain, in which events the obligations of the parties shall be
controlled by either Article XII or Article XIV hereof. 


10.3 Alterations or Improvements by
Tenant. Tenant shall not, without Landlord’s prior written consent, make, nor
permit to be made, any alterations, additions or improvements to the Premises,
which consent Landlord may withhold in its sole discretion. Any alterations
which may be permitted by Landlord shall be based upon plans and specifications
submitted by Tenant and approved by Landlord and upon the condition that Tenant
shall promptly pay all costs, expenses, and charges thereof, shall make such
alterations and improvements in accordance with applicable laws and building
codes and ordinances and in a good and workmanlike manner, and shall fully and
completely indemnify Landlord, its managing agent, and Landlord’s lender
against any mechanic’s lien or other liens or claims in connection with the
making of such alterations, additions, or improvements. Tenant shall promptly
repair any damages to the Premises, or to the buildings of which the Premises
are a part, caused by any alterations, additions or improvements to the
Premises by Tenant. 


10.4 Removal of Improvements and Trade
Fixtures. At the expiration or earlier termination of the Lease Term, all
improvements included in the Premises at the Delivery of Possession Date, all
heating and air conditioning equipment added by Tenant after the Delivery of
Possession Date, and all alterations, additions and other improvements by
Tenant shall become the property of Landlord and shall not be removed from the
Premises. Any trade fixtures, furniture, furnishings, and signs installed in
the Premises by Tenant which remain in the Premises after Tenant vacates the
Premises shall be deemed abandoned by Tenant and Landlord may dispose of such
items as Landlord deems necessary, at Tenant’s cost. Notwithstanding anything
contained to the contrary in this Lease, if Tenant removes such items from the
Premises but fails to repair any damage caused by such removal, Landlord may
make or complete said repairs without providing Tenant notice prior to the
commencement of said repairs. To the extent Landlord exercises self help under
this paragraph, Tenant shall reimburse Landlord the cost thereof upon demand,
together with the sum of ten percent (10%) of said costs for overhead. Tenant’s
obligations under this Article X. Section 4 shall survive the termination of
this Lease. 


SECTION 11 INDEMNITY AND INSURANCE 


11.1 Indemnification by Tenant. Tenant
will indemnify and hold Landlord, its managing agent, and Landlord’s lender
harmless from and against all loss, cost, expense, and liability whatsoever
(including Landlord’s cost of defending against the foregoing, such cost to
include attorney’s fees) resulting or occurring by reason of Tenant’s
construction, use or occupancy of the Premises. 


-9-






11.2 Tenant’s Insurance. Effective as of
the Delivery of Possession Date and continuing throughout the Lease Term and
any extensions or renewals thereof, including, without limitation, any holdover
with or without Landlord’s consent, Tenant shall procure, pay for and keep in
full force and effect, the following types of insurance: 


	
 

	
 


	
 

	
          (a) Commercial General Liability
 Insurance Policy insuring the Premises and Tenant’s use thereof, together
 with contractual liability endorsements covering Tenant’s obligations set
 forth in Article XI, Section A, above, in a form satisfactory to Landlord
 with companies having an A.M. Best Rating or its equivalent of A-VIII or
 better, and with a minimum limit of One Million and 00/100 Dollars
 ($1,000,000.00) on account of bodily injuries to or death or property damage
 for each occurrence and a minimum limit of Two Million Dollars
 ($2,000,000.00) annual general aggregate. The aggregate limit may be
 satisfied through a combination of primary and umbrella/excess liability
 insurance. Such insurance shall also provide that the general aggregate
 limits apply separately to each insured location, if applicable. The
 foregoing policy shall name Landlord and such other parties as Landlord may
 from time to time designate in writing to Tenant as additional insureds under
 Tenant’s insurance policy and shall bear endorsements to the effect that the
 insurer agrees to notify all additional insureds not less than thirty (30)
 days in advance of any modification or cancellation thereof; 


	
 

	
 


	
 

	
          (b) Special Form Cause of Loss Policy
 insuring against fire and such other risks as are, from time to time,
 included in standard extended coverage endorsements (including, but not
 limited to earthquake, flood, boiler and machinery, plate glass, power
 failure, mold, windstorm, terrorism, seepage or leakage), insuring all
 leasehold and building improvements in the Premises which were originally
 constructed by Tenant, Tenant’s stock-in-trade, trade fixtures, furniture,
 furnishings, special equipment, floor and wall coverings, and all other items
 of personal property of Tenant located on or within the Premises, such
 coverage to be in an amount equal to one hundred percent (100%) of the
 replacement cost thereof. The foregoing policy shall name Landlord and such
 other parties as Landlord may from time to time designate in writing to
 Tenant as loss payee under Tenant’s insurance policy and shall bear
 endorsements to the effect that the insurer agrees to notify all loss payees
 not less than thirty (30) days in advance of any modification or cancellation
 thereof; 


	
 

	
 


	
 

	
          (c) Workers’ compensation insurance
 (meeting the requirements of the state workers’ compensation laws) and
 employer liability insurance covering all of Tenant’s employees at the
 Premises. Tenant shall also use good faith efforts to ensure all contractors,
 sub-contractors, vendors, leased employees, and temporary employees are
 properly insured for workers’ compensation; 


	
 

	
 


	
 

	
          (d) Business interruption or loss of
 income insurance in an amount equal to the Minimum Rent, Percentage Rent, if
 any, and any other Additional Rent (hereunder defined) payable under this
 Lease for a minimum period of twelve (12) months; 


	
 

	
 


	
 

	
          (e) Plate glass insurance covering all
 plate glass on the Premises at full replacement value; and, 





-10-






	
 

	
 


	
 

	
          (f) Any insurance policies designated
 necessary by Landlord with regard to Tenant’s, or Tenant’s contractors’
 construction of Tenant’s Work, as well as with regard to the construction of
 alterations including, but not limited to, contingent liability and “all
 risk” builders’ risk insurance. 


	
 

	
 


	
 

	
          Tenant
 shall deposit with Landlord prior to the date of any use or occupancy of the
 Premises by Tenant certificates evidencing Tenant’s compliance with each of
 the required coverages. To the extent that any of the foregoing policies
 shall change in name and/or coverage due to general changes in the insurance industry,
 Tenant shall obtain and maintain the equivalent policies and coverages as are
 then recognized in the insurance industry. 





11.3 Landlord’s Liability. Landlord shall
not be liable (i) for any damage to Tenant’s property located in the Premises,
regardless of the cause of such damage, nor (ii) for any condition of the
Premises whatsoever. 


11.4 Landlord’s Insurance. Effective as
of the Delivery of Possession Date and continuing throughout the Lease Term and
any extensions or renewals thereof, including, without limitation, any holdover
with or without Landlord’s consent, Landlord shall procure and keep in full
force and effect, the following types of insurance: 


	
 

	
 


	
 

	
          (a)
 Landlord, at Tenant’s cost, shall carry insurance under a Special Form Cause
 of Loss Policy (or an equivalent policy that becomes the insurance industry
 standard in the future) on the Premises in an amount equal to at least eighty
 percent (80%) of the insurable value of such improvements, together with
 endorsements insuring against such other risks as Landlord reasonably deems
 appropriate (including, but not limited to, earthquake, flood, boiler and
 machinery, power failure, mold, windstorm, terrorism, seepage or leakage and
 loss of rent) and in such amounts as Landlord deems appropriate. Tenant shall
 pay to Landlord the costs for such insurance within ten (10) days of receipt
 of Landlord’s invoice to Tenant for the premium for such insurance. 


	
 

	
 


	
 

	
          (b)
 Landlord, at Tenant’s cost, shall carry commercial general liability
 insurance with respect to the Premises up to a maximum limit of Seventy-Five
 Million and 00/100 Dollars ($75,000,000). Tenant shall pay to Landlord the
 costs for such insurance, not to exceed Seven Hundred and 00/100 Dollars
 ($700.00) per year, within ten (10) days of receipt of Landlord’s invoice to
 Tenant for the premium for such insurance.





11.5 Mutual Waiver of Subrogation. All
insurance policies required to be carried by either party covering the
Premises, including but not limited to contents, fire, and casualty insurance,
shall to the extent permitted by law expressly waive any right on the part of
the insurer against the other party. The parties hereto agree that their
policies will include such waiver clause or endorsement so long as the same shall
be obtainable without extra cost, or if extra shall be charged therefor, so
long as the other party pays such extra cost. If cost shall be chargeable
therefor, each party shall advise the other thereof and of the amount of extra
cost, and the other party, at its election, may pay the same, but shall not be
obligated to do so. The failure of any insurance policy to include such waiver
clause or endorsement shall not affect the validity of this Lease. Tenant and
Landlord further agree to waive all claims, causes of action and rights 


-11-






of recovery
against the other, and their respective agents, officers, and employees, for
any injury to or death of persons or any damage or destruction of persons,
property or business which shall occur on or about the Premises originating
from any cause whatsoever including the negligence of either party and their
respective agents, officers, and employees to the extent such injury, death or
property damage is required to be covered by a policy or policies maintained by
either Landlord or Tenant pursuant to this Lease. Notwithstanding the above,
Landlord and Tenant agree and acknowledge that the waiver of subrogation herein
contained shall expressly extend to and include any uninsured loss paid by the
insured in the form of a deductible or self-funded retention cost. 


SECTION 12 DAMAGE AND DESTRUCTION 


          In
the event the Premises are damaged by any peril covered by standard policies of
fire and extended coverage insurance, the damage shall, except as hereinafter
provided, promptly be repaired by Landlord, at Landlord’s expense, but, in no
event shall Landlord be required to repair or replace Tenant’s leasehold and
building improvements in the Premises originally constructed by Tenant after
the Delivery of Possession Date, Tenant’s stock-in-trade, trade fixtures,
furniture, furnishings, equipment or personal property, which shall be the
obligation of Tenant to replace to at least equal condition immediately prior
to such damage. In the event (a) the Premises are damaged to the extent of
twenty-five percent (25%) or more of the cost of replacement of the Premises,
or (b) any damage to the Premises occurs during the last three (3) years of the
Term of this Lease, Landlord may elect either to repair or rebuild the Premises
or to terminate this Lease upon giving notice of such election in writing to
Tenant within ninety (90) days after the event causing the damage. If the
casualty, repairing, or rebuilding shall render the Premises untenantable, in
part, a proportionate abatement of the Minimum Rent in proportion to the sales
floor area of the Premises rendered untenantable shall be allowed until the
date Landlord completes the repairs or rebuilding. If the casualty, repairing,
or rebuilding shall render the Premises untenantable, in whole, an abatement of
the Minimum Rent of the Premises shall be allowed until the date Landlord
completes the repairs or rebuilding. 


SECTION 13 ASSIGNING AND SUBLETTING 


          Tenant
shall not assign this Lease nor sublet the Premises or any part thereof,
without in each case the prior written consent of Landlord, which consent
Landlord may withhold in its sole discretion. Notwithstanding the foregoing,
Tenant may assign or sublease this Lease to an affiliated entity provided
however such assignment or sublease shall not relieve Tenant from primary
liability for the performance of Tenant’s obligations under this Lease. Tenant
shall not permit any business to be operated in or from the Premises by any
concessionaire or licensee without the prior written consent of Landlord, which
consent Landlord may withhold in its sole discretion. In the event Tenant shall
request Landlord’s consent to an assignment of this Lease or subletting of the
Premises, Tenant shall pay Landlord, as a condition to obtaining Landlord’s
consent the reasonable costs and expenses incurred by Landlord to review and/or
prepare documents in connection with such assignment or sublease not to exceed
Five Hundred and 00/100 Dollars ($500.00) per request, regardless of whether such
assignment or sublease is consummated by Tenant. No consent by Landlord shall
operate to relieve Tenant from primary liability for the performance of
Tenant’s obligations under this Lease. 


-12-






          Any
sale, assignment, bequest, inheritance, transfer or other disposition of the
ownership of Tenant’s entity which shall result in a change in the effective
control of Tenant including, without limitation, the sale of (a) stock in a
corporate tenant, (b) partnership interests in a partnership tenant, or (c)
member interests in a limited liability company tenant shall be deemed an
assignment of this Lease requiring Landlord’s prior written consent. 


SECTION 14 EMINENT DOMAIN 


          In
the event the Premises or any part thereof shall be taken or condemned either
permanently or temporarily for any public or quasi-public use or purpose by any
authority in appropriate proceedings or by any right of eminent domain, the
entire compensation award thereof, including, but not limited to, all damages
as compensation for diminution in value of the leasehold, reversion and fee,
shall belong to Landlord, without any deduction therefrom for any present or
future estate of Tenant, and Tenant hereby assigns to Landlord all its right,
title, and interest to any such award. Tenant shall have the right to recover
from the condemning authority, but not from Landlord, such compensation as may
be separately awarded to Tenant. 


          In
the event of a taking under the power of eminent domain of (i) more than
twenty-five percent (25%) of the Premises, either Landlord or Tenant shall have
the right to terminate this Lease by notice in writing given within ninety (90)
days after the condemning authority takes possession, in which event all rents
and other charges shall be prorated as of the date of such termination. 


          In
the event of a taking of any portion of the Premises not resulting in a
termination of this Lease, Landlord shall use so much of the proceeds of
Landlord’s award for the Premises as is required therefor to restore the
Premises to a complete architectural unit and this Lease shall continue in
effect with respect to the balance of the Premises, with a reduction of Minimum
Rent in proportion to the portion of the Premises taken. 


SECTION 15 DEFAULT BY TENANT 


          If
(a) Tenant defaults in the payment of Minimum Rent or other charges and such
payment is not made within ten (10) days following Landlord’s written notice
that same is due, provided that in no event shall Landlord be obligated to
provide Tenant with written notice of any monetary default, more than once in
any twelve (12) month period, or (b) if Tenant shall default in the performance
of any other of Tenant’s obligations hereunder and Tenant fails to remedy such
default within thirty (30) days after written notice from Landlord, or such
longer time, but not to exceed an additional sixty (60) days, as may be
reasonably required to cure because of the nature of the default (provided, as
to such longer time, that within the thirty (30) day period Tenant has notified
Landlord that more time reasonably is needed and has undertaken procedures to
cure the default within such thirty (30) day period and that Tenant thereafter
diligently and continuously pursues such effort to completion and promptly responds
to any request from Landlord for updates on Tenant’s progress) or (c) if a
receiver of any property of Tenant on the Premises is appointed, or Tenant’s
interest in the Premises is levied upon by legal process, or Tenant be adjudged
bankrupt and Tenant fails within thirty (30) days to cause the vacation of such
appointment, levy or adjudication, or if Tenant files a voluntary petition in
bankruptcy, disposes of all or substantially all of its assets in bulk, or
makes an assignment for 


-13-






the benefit of
its creditors, or (d) Tenant vacates or abandons the Premises, then and in any
such instance, without further notice to Tenant, or (e) a default occurs under
any of the Related Leases, Landlord shall have the right to exercise any and
all rights or remedies available to Landlord at law, in equity or otherwise,
arising from such default, including but not limited to the right to (i)
terminate this Lease, or (ii) enter upon the Premises without terminating this
Lease and relet the Premises in Landlord’s name for the account of Tenant for
the remainder of the Term upon terms and conditions reasonably acceptable to
Landlord and immediately recover from Tenant any deficiency for the balance of
the Term, plus expenses of reletting. In addition to the foregoing, any time
after such default and the lapse of any applicable notice period, Landlord
shall have the right to make such payments in default or perform such act in
default for the account and at the expense of Tenant, and all unpaid Minimum
Rent, Percentage Rent or other charges which are not paid when due and all sums
paid by Landlord pursuant to this sentence, including reasonable attorneys’
fees as specifically provided below, shall accrue interest at the annual rate
of (i) fifteen percent (15%), or (ii) five percent (5%) above the prime lending
rate of JPMorgan Chase Bank, whichever is greater, which shall constitute
Additional Rent under this Lease and shall be payable upon demand. Landlord
shall use commercially reasonable efforts to mitigate the damages suffered by
Landlord rising from the default by Tenant of any of its obligations under this
Lease. If Tenant shall issue a check to Landlord which is dishonored by
Tenant’s depository bank and returned unpaid for any reason, including without
limitation, due to insufficient funds in Tenant’s checking account, Tenant
shall pay to Landlord in addition to any other rights or remedies available to
Landlord at law, the sum of Seventy-five and 00/100 Dollars ($75.00) for
Landlord’s administrative expense in connection therewith. 


          Tenant’s
failure to pay Rent, Additional Rent, or any other Lease costs when due under
this Lease may cause Landlord to incur unanticipated costs. The exact amount of
such costs is impractical or extremely difficult to ascertain. Such costs may
include, but are not limited to, processing and accounting charges and late
charges that may be imposed on Landlord by any ground lease, mortgage, or deed
of trust encumbering the Premises. Therefore, if Landlord does not receive the
Rent, Additional Rent, or any other Lease costs in full on or before the tenth
(10th) day of the month it becomes due, Tenant shall pay Landlord a late
charge, which shall constitute liquidated damages, equal to Fifty Dollars
($50.00) (“Late Charge”), which shall be paid to Landlord together with such
Rent, Additional Rent, or other Lease costs then in arrears. The parties agree
that such Late Charge represents a fair and reasonable estimate of the cost
Landlord will incur by reason of such late payment. All Late Charges and any
returned check charges shall then become Additional Rent and shall be due and
payable immediately along with such other Rent, Additional Rent, or other Lease
costs then in arrears. Money paid by Tenant to Landlord shall be applied to
Tenant’s account in the following order: (i) to any unpaid Additional Rent,
including, without limitation, Late Charges, returned check charges, legal fees
and/or court costs legally chargeable to Tenant, and then (ii) to unpaid
Minimum Rent. Nothing herein contained shall be construed so as to compel
Landlord to accept any payment of Rent, Additional Rent, or other Lease costs
in arrears or Late Charge or returned check charge should Landlord elect to
apply its rights and remedies available under this Lease or at law or equity in
the event of default hereunder by Tenant. Landlord’s acceptance of Rent,
Additional Rent, or other Lease costs in arrears or Late Charge or returned
check charge pursuant to this clause shall not constitute a waiver of Landlord’s
rights and remedies available under this Lease or at law or equity. 


-14-






          At
any time after the termination of this Lease, Landlord shall be entitled to
additional damages (“Liquidated Damages”), which, at the election of Landlord
shall be either: 


	
 

	
 


	
 

	
          (i) an amount equal to the Minimum
 Rent and Additional Rent (collectively “Rent”), which, but for the
 termination of this Lease, would have become due during the remainder of the
 Lease Term, less the amount of Rent, if any, which Landlord shall receive
 during such period from others to whom the Premises may be rented, in which
 case such Liquidated Damages shall be computed and payable in monthly
 installments, in advance, on the first day of each calendar month following
 termination of this Lease and continuing until the date on which the Lease
 Term would have expired but for such termination, and any suit or action
 brought to collect any such Liquidated Damages for any month shall not in any
 manner prejudice the right of Landlord to collect any Liquidated Damages for
 any subsequent month by a similar proceeding; or 


	
 

	
 


	
 

	
          (ii) an amount equal to the present
 worth (as of the date of such termination) of Rent which, but for the
 termination of this Lease, would have become due during the remainder of the
 Lease Term, less the fair rental value of the Premises in which case such
 Liquidated Damages shall be payable to Landlord in one lump sum on demand and
 shall bear interest of five percent (5%) until paid. For purposes of this
 clause (b), “present worth” shall be computed by discounting such amount to
 present worth at a discount rate equal to one percentage point above the
 discount rate then in effect at the Federal Reserve Bank nearest to the
 location of the Premises. 





          Tenant
agrees to pay to Landlord upon demand, as Additional Rent, a sum equal to all
costs and expenses (including reasonable attorney fees, professional fees,
costs of investigation and disbursements) incurred by Landlord in enforcing any
or all of its rights hereunder, specifically including the cost of collecting
sums due, whether or not an action or proceeding is commenced, or levying and
collecting on any judgment or arbitration award in Landlord’s favor. 


          All rights and
remedies of Landlord herein enumerated shall be cumulative, and none shall
exclude any other remedies allowed at law or in equity. 


	
 

	
 

	
 


	
 

	
(a)

	
Legal
 Expenses. 


	
 

	
 

	
 


	
 

	
          i) In the event that Landlord should
 retain counsel and/or institute any suit against Tenant for violation of or
 to enforce any of the covenants or conditions of this Lease, or should Tenant
 institute any action against Landlord for violation of any covenants or
 conditions of this Lease, or should either party institute a suit against the
 other for a declaration of rights hereunder, or should either party intervene
 in any suit in which the other is a party, to enforce or protect its
 interests or rights hereunder, the prevailing party in any such suit shall be
 entitled to its costs, expenses and reasonable fees to its attorney(s) in
 connection therewith. 


	
 

	
 


	
 

	
          ii) In the event that a bankruptcy
 proceeding is filed by or against Tenant under any chapter of the Bankruptcy
 Code, or Tenant makes an assignment for the benefit of creditors or commences
 or otherwise becomes the subject of any insolvency, receivership or similar
 proceeding, Landlord shall be entitled to recover its reasonable 





-15-






	
 

	
 


	
 

	
attorneys’
 fees and costs incurred in or in connection with any such proceeding from
 Tenant or any trustee, custodian, receiver, assignee or other representative
 acting on its behalf, all of which fees and expenses shall constitute, in
 addition to any other sums due and owing under this Lease (i) an obligation
 of Tenant hereunder, and (ii) a component of any cure claim assertable by
 Landlord under 11 U.S.C. § 365(b) or otherwise. 





SECTION 16 NOTICES 


          Any
notice or consent required to be given by or on behalf of either party to the
other shall be given in writing and mailed by certified mail or by overnight
courier service which provides a receipt, at the addresses stated on Article
I(A), Sections –11-14, of this Lease, or at such other address as may be
specified, from time to time, by notice in the manner herein set forth. Notices
shall be deemed given upon actual receipt or first rejection. 


SECTION 17 MORTGAGE
SUBORDINATION/NON-DISTURBANCE 


          This
Lease, and Tenant’s rights hereunder shall be subject and subordinate to the
lien of any mortgages, ground leases or deeds of trust or other similar
instrument that may now exist or may hereafter be placed upon the Premises and
all renewals, replacements, and extensions thereof without further notice or
action on the part of Landlord or Tenant. Tenant, Landlord and any mortgagee of
Landlord shall execute a Subordination, Non-Disturbance and Attornment
Agreement in recordable form) as a condition of such subordination. Tenant
shall execute and deliver to Landlord within fifteen (15) days from receipt of
Landlord’s request such instruments (including but not limited to a Memorandum
of Lease in recordable form) which may be required by Landlord’s mortgagee or
trustee to evidence such subordination. 


SECTION 18 ESTOPPEL CERTIFICATES 


          At
any time and from time to time, Tenant agrees, upon request in writing from
Landlord, to execute and deliver to Landlord, for the benefit of such persons
as Landlord names in such request, a statement in writing and in substance
satisfactory to Landlord certifying to such of the following information as
Landlord shall request: (i) that this Lease constitutes the entire agreement
between Landlord and Tenant and is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as
modified and stating the modifications); (ii) the dates to which the Minimum
Rent and other charges hereunder have been paid, and the amount of any security
deposited with Landlord; (iii) that all conditions precedent to this Lease
taking effect have been carried out; (iv) that Tenant has accepted possession,
that the Lease Term has commenced, that Tenant is occupying the Premises, that
Tenant knows of no default under the Lease by Landlord and that there are no
defaults or offsets which Tenant has against enforcement of this Lease by
Landlord; (v) the Rent Commencement Date of this Lease and the Expiration Date
of this Lease; and (vi) that Tenant’s store is open for business, provided such
facts are true and ascertainable. Tenant acknowledges and agrees that Tenant’s
failure to execute and deliver to Landlord any estoppel certificate(s)
requested by Landlord within fifteen (15) days from Tenant’s receipt of
Landlord’s request shall be deemed Tenant’s acknowledgement that the terms and
conditions contained in such estoppel certificate are true and correct and that
such terms and conditions may also be relied upon by any third party or parties
identified in such estoppel certificate. 


-16-






SECTION 19 QUIET ENJOYMENT 


          Landlord
hereby covenants and agrees that if Tenant shall perform all the covenants and
agreements herein stipulated to be performed on Tenant’s part, Tenant shall at
all times during the continuance hereof have the peaceable and quiet enjoyment
and possession of the Premises without any hindrance from Landlord or any
person or persons lawfully claiming the Premises. 


SECTION 20 LIABILITY OF LANDLORD 


          Notwithstanding
anything to the contrary provided in this Lease, it is specifically understood
and agreed, such agreement being a primary consideration for the execution of this
Lease by Landlord, that if Landlord shall fail to perform any covenant, term or
condition of this Lease upon Landlord’s part to be performed and, as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levy thereon against the right,
title, and interest of Landlord in the Premises, as the same may then be
encumbered, and neither Landlord nor any of its officers or shareholders shall
be liable for any deficiency. It is understood that in no event shall Tenant
have any right to levy execution against any property of Landlord other than
its interest in the Premises as hereinbefore expressly provided. In the event of
the sale or other transfer of Landlord’s right, title and interest in the
Premises, Landlord shall be released from all liability and obligations under
this Lease. 


SECTION 21 PURCHASE OPTION. 


          Landlord
grants to Tenant the option to purchase the Premises, simultaneously with the
purchase of all of the premises leased pursuant to the Related Leases (it being
a condition of the option granted herein that Tenant exercise its option to
purchase and in fact purchases all of the premises leased pursuant to the
Related Leases), during the first two (2) Lease Years of the Term of this Lease
as provided herein. Tenant shall exercise this option to purchase, if at all,
by giving written notice to Landlord, in the manner and at the address set
forth in Article XVI of this Lease, at least sixty (60) days prior to the
expiration of the second (2nd) Lease Year of the Term (the date
Tenant gives notice of exercise, if any, being referred to as the “Exercise
Date”). 


	
 

	
 

	
 


	
 

	
The purchase
 price of the Premises shall be as follows: 

	
 


	
 

	
 

	
 


	
 

	
If the
 Exercise Date is on or before July 31, 2009:

	
$70.00/square
 foot* 


	
 

	
 

	
 


	
 

	
If the
 Exercise Date is after July 31, 2009 but before January 31, 2011:

	
$76.00/square
 foot* 





* Square
footage of the Premises shall be determined pursuant to BOMA standards. 


The purchase
price for the Premises shall be paid, at Tenant’s option, (i) in cash at the
closing or (ii) with Landlord financing of eighty percent (80%) of the purchase
price, evidenced by a promissory note accruing interest at the greater of (x)
prime rate plus two percent (2%) or (y) six and one-quarter percent (6.25%),
with a twenty (20) year amortization and a balloon payment 


-17-






payable in
three (3) years, and secured by a first mortgage lien on the Premises. At the
closing and upon payment of the purchase price, Landlord shall deliver to
Tenant a transferable and recordable limited or special warranty deed conveying
to Tenant marketable title to the Premises in fee simple, free and clear of all
encumbrances excepting (a) all easements, covenants, conditions and
restrictions of record that do not adversely affect Tenant’s use of the
property as a retail location, (b) all legal highways, (c) building, zoning and
other statutes, ordinances, codes and regulations, (d) real estate taxes not
yet due and payable, and (e) the rights of persons claiming by, through, or
under Tenant. Closing costs shall be paid by the parties in accordance with the
custom for the state where the Premises is located. The date for the closing
for the delivery of the deed by Landlord and the payment of the purchase price
by Tenant shall be within thirty (30) days of the Exercise Date or the first
business day thereafter if such date is a Saturday, Sunday or holiday (such
date being referred to as the “Closing Date”), at a place mutually agreed upon
by the parties. If on the Exercise Date Tenant is in default under this Lease,
or any of the Related Leases, or this Lease, or any of the Related Leases, has
been terminated and is not then in full force and effect, the attempted
exercise of the option shall be void and of no effect. If on the Closing Date,
Tenant is in default under this Lease, or any of the Related Leases, , Tenant
shall cure any such default at or before Closing. 


SECTION 22 MISCELLANEOUS PROVISIONS 


22.1 Accord and Satisfaction. No payment
by Tenant, or anyone occupying the Premises by, through or under Tenant, or
receipt by Landlord of a lesser amount than the rents or any other payment
stated herein or required hereunder shall be deemed to be other than on behalf
of Tenant and on account of the next due rent or any other payment, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord’s right to recover the balance of such
rent or other payment or pursue any other remedy provided for in this Lease or
available at law or in equity. 


22.2 Waiver. No waiver of any condition
or legal right or remedy shall be implied by the failure of Landlord to declare
a forfeiture, or for any other reason, and no waiver of any condition or
covenant shall be valid unless it be in writing signed by Landlord. No waiver
by Landlord with respect to a breach of any condition shall be claimed or
pleaded to excuse a future breach of the same condition or covenant. 


22.3 Broker’s Commission. Tenant warrants
that there are no claims for broker’s commissions or finder’s fees in
connection with its execution of this Lease, and Tenant agrees to indemnify and
save Landlord harmless from any liability that may arise from such claims,
including reasonable attorney’s fees. 


22.4 No Partnership. Landlord does not,
in any way or for any purpose, become a partner of Tenant in the conduct of its
business, or otherwise, or a joint venturer or a member of a joint enterprise
with Tenant. 


22.5 Lease Inures to the Benefit of
Assignees. This Lease and all of the covenants, provisions, and conditions
herein contained shall inure to the benefit of and be binding upon the heirs,
personal representatives, successors and assigns respectively, of the parties
hereto, 


-18-






provided,
however, that no assignment by, from, through, or under Tenant in violation of
the provisions hereof shall vest in the assigns any right, title, or interest
whatsoever. 


22.6 Entire Agreement. This Lease and the
exhibits attached hereto set forth the entire agreement between Landlord and
Tenant, and all prior promises and agreements, oral or written, between them
are merged into this Lease. No amendment to this Lease shall be binding upon
Landlord or Tenant unless in writing. 


22.7 Abandonment, Surrender and Holding
Over. Tenant shall deliver up and surrender to Landlord possession of the
Premises upon the expiration of the Lease Term, or its prior termination for
any reason, in as good condition and repair as the same shall be at the
commencement of said Term (damage by fire and other perils covered by standard
fire and extended coverage insurance and ordinary wear and decay only
excepted). If Tenant remains in possession of the Premises after any
termination of this Lease, Tenant shall be bound by the terms and provisions of
this Lease except that no tenancy or interest in the Premises shall result, but
such holding over shall be an unlawful detainer and all such parties shall be
subject to immediate eviction, and Tenant shall upon demand pay to Landlord, as
liquidated damages, a sum equal to one hundred fifty percent (150%) of the
Minimum Rent payable during the calendar month immediately preceding the
expiration or earlier termination of this Lease for any period during which
Tenant shall hold the Premises after the stipulated Term of this Lease shall
expire or may have terminated. 


22.8 No Option. The submission of this
Lease by Landlord for review by Tenant does not constitute a reservation of or
option for the Premises, and shall vest no right in Tenant. This Lease becomes
effective as a Lease only upon execution and delivery thereof by the parties
hereto. 


22.9 Additional Rent. Any amounts to be
paid by Tenant to Landlord pursuant to the provisions of this Lease, whether
such payments are periodic or recurring, shall be deemed to be “Additional
Rent” and otherwise subject to all provisions of this Lease and of law as to
the default in the payment of rent. 


22.10 Time is of the Essence. Time is of
the essence in the performance of the parties of their obligations hereunder. 


22.11 Severability. In the event that any
provision or section of this Lease is rendered invalid by the decision of any
court or by the enactment of any law, ordinance or regulation, such provision
of this Lease shall be deemed to have never been included therein, and the
balance of this Lease shall continue in effect in accordance with its terms. 


22.12 Option to Renew. Provided Tenant is
not in default under any of the terms and provisions herein contained or any of
the Related Leases, Landlord hereby grants to Tenant the option to renew the
Lease Term for the period(s) set forth in Article I(A), Section 14, commencing
on the day following the expiration of the initial Term. Any such Renewal Term
shall be upon all the terms and conditions as the initial Lease Term, except
that the Minimum Rent shall be increased as set forth on Schedule A. 


-19-






          The
foregoing option to renew shall be exercised by written notice to Landlord
given not less than the number of days set forth in Article I(A), Section 14,
above prior to the expiration of the original Term of this Lease. Tenant’s
option to renew the Term of this Lease is personal to Tenant and may not be
exercised by any other party other than Tenant, nor may Tenant’s option to
renew the Term of this Lease be assigned by Tenant without the prior written
consent of Landlord, which may be granted or withheld in Landlord’s sole
discretion. 


22.13 Option to Terminate. Tenant shall be
permitted a one time option to terminate this Lease and up to nine (9) of the
Related Leases, which option shall be exercised any time prior to January 31,
2011. If Tenant exercises its option, this Lease and the applicable Related
Leases shall terminate at the later of (i) twenty-four (24) months after the
Commencement Date or (ii) six (6) months after the date Tenant gives notice
that it is electing to terminate such Leases (the “Termination Date”). 


22.14 Net Rent. It is the intention of
Landlord and Tenant that the rent herein specified shall be net to Landlord in
each year of the Lease Term hereof, and that no costs, expenses and obligations
relating to the Premises (except as herein specifically provided) shall be paid
by Landlord. 


22.15 Counterparts. This Lease may be
executed in multiple counterparts, each of which shall constitute an original
and all of which taken together shall constitute one and same agreement binding
upon the parties, notwithstanding that all the parties are not signatories to
the same counterpart. In order to facilitate the agreements contemplated by
this Lease, signatures transmitted by facsimile machine or signatures
transmitted via e-mail in a “PDF” format may be used in place of original
signatures on this Lease. Each party intends to be bound by such party’s
facsimile or “PDF” format signature on this Lease, is aware that the other
parties are relying on such party’s facsimile or “PDF” format signature, and
hereby waives any defenses to the enforcement of this Lease based upon the form
of signature. Promptly following any facsimile transmittal or e-mail
transmittal of “PDF” format signatures, the parties shall deliver to the other
parties the original executed Lease by reputable overnight courier to the
addresses shown in Article I(A), Sections –11-14. 


22.16 Consents. With respect to any
provision of this Lease which provides or infers, in effect, that Landlord
shall not unreasonably withhold or unreasonably delay its consent or approval,
Tenant, in no event, shall be entitled to make, nor shall Tenant make, any
claim against Landlord for money damages, and Tenant hereby waives any claim or
assertion by Tenant that Landlord has unreasonably withheld or unreasonably
delayed any consent or approval, but Tenant’s sole remedy shall be an action or
proceeding to enforce any such provision of this Lease, or for specific
performance, injunction or declaratory judgment. 


22.17 Force Majeure. In the event Landlord
or Tenant is prevented or delayed in the performance of any improvement or
repair or fulfilling any other obligation required under this Lease due to
delays caused by fire, catastrophe, strikes or labor trouble, civil commotion,
acts of God, governmental prohibitions or regulation, inability or difficulty
to obtain materials or other causes beyond the performing party’s reasonable
control, the performing party shall, within ten (10) days of the event causing
such delay, provide written notice to the other party of the event causing the
delay and the anticipated period of delay, and the period of such delay shall
be added 


-20-






to the time
for performance thereof. The performing party shall have no liability by reason
of such permitted delays. In the event the performing party fails to provide
notice to the other party of the force majeure delay within such ten (10) day
period, the performing party shall not be excused from the timely performance
of such obligation regardless of the cause. This provision shall not excuse
Tenant from its obligation to pay Minimum Rent, Percentage Rent and Additional
Rent, except when such payment is excused pursuant to other provisions of this
Lease. 


22.18 Payment Under Protest. All rent and
other amounts payable hereunder shall be payable without demand, offset or
deduction. If at any time a dispute shall arise as to any amount or sum of
money to be paid by Tenant to Landlord under the provisions hereof, Tenant
shall make such payment “under protest” and under no circumstances shall Tenant
be entitled to withhold any payment due hereunder. If Tenant makes a payment
“under protest” and it is subsequently determined that Tenant was not obligated
to pay all or a portion of an amount paid “under protest,” Landlord shall
refund to Tenant the portion of the payment made “under protest” which Tenant
was not obligated to pay. 


22.19 Waiver of Trial By Jury. To the
extent permitted by applicable law Landlord and Tenant waive all right to trial
by jury in any claims, action, proceeding or counterclaim by either Landlord or
Tenant against each other or any matter arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant or Tenant’s use or
occupancy of the Premises. 


22.20 Hazardous Materials. Tenant shall
not permit or cause the presence of Hazardous Materials in, on or under the
Premises. Tenant shall defend, protect, indemnify and hold Landlord harmless
from and against any and all claims, causes of action, liabilities, damages,
costs and expenses, including, without limitation, attorney fees, arising
because of any alleged personal injury, property damage, death, nuisance, loss
of business or otherwise, by Landlord, any employee of Landlord, or from and
against any governmental act or enforcement, arising from or in any way
connected with conditions existing or claimed to exist with respect to
Hazardous Materials (as hereinafter defined) within the Premises which are the
result of Tenant’s use, occupancy or operation of the Premises. As used herein
the term “Hazardous Materials” shall be defined as any hazardous substance,
contaminant, pollutant or hazardous release (as such terms are defined in any
federal, state or local law, rule, regulation or ordinance, including without,
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended) and other said wastes. In the event Tenant
shall cause or permit the presence of Hazardous Materials in, on or under the
Premises, Tenant shall promptly, at Tenant’s sole cost and expense, take any
and all action necessary (as required by appropriate government authority or
otherwise) to return the areas affected thereby to the condition existing prior
to the presence of any such Hazardous Materials thereon, subject to Landlord’s
prior written consent. The foregoing covenants shall survive termination of
this Lease. 


22.21 Payment By Third Party. In no event
shall Landlord’s acceptance of the payment of Minimum Rent, Percentage Rent or
Additional Rent from any party other than Tenant constitute a release of
Tenant’s primary obligations under this Lease or Landlord’s acceptance of any
other party as an assignee or sublessee of Tenant, regardless of the number of
payments accepted by Landlord or the length of time that said party made such
payments. 


-21-






22.22 Recording. This Lease shall not be
recorded in any public records office or department by Landlord or Tenant. 


22.23 Interpretation. This Lease, and any
riders and exhibits hereto, have been mutually negotiated by Landlord and
Tenant. Any ambiguities will not be interpreted in favor of either party. The
captions contained herein are for convenience and reference only and will not
be deemed as part of this Lease or construed in any manner limiting or
amplifying the terms and provisions of this Lease to which they relate. 


22.24 Certification. Tenant represents and
warrants to Landlord that (i) Tenant is not acting, directly or indirectly, for
or on behalf of any person, group, entity, or nation, named by any Executive
Order or the United States Treasury Department as a “terrorist”, “Specially
Designated National and Blocked Person”, or other banned or blocked person,
group, or nation (collectively, “Banned Persons”) pursuant to any
anti-terrorism law; (ii) Tenant is not engaged in this Lease transaction, or
instigating or facilitating this Lease, directly or indirectly on behalf of any
Banned Person; (iii) Tenant currently does not appear, and throughout the Lease
Term, neither Tenant, nor any officer, director, shareholder, partner, member
or other owner of Tenant shall appear, on any list of Banned Persons; (iv) no
anti-terrorism law prohibits Landlord from doing business with Tenant; (v)
Tenant, its officers, directors, or principal shareholders, partner, member, or
other owner of Tenant, shall not, during the Lease Term, violate any
anti-terrorism laws; and (vi) Tenant, its officers, directors, principal
shareholders, partners or members shall not, during the Lease Term, do business
with any party, individual, or entity that has violated or will violate any
anti-terrorism laws. For purposes of this Lease, “anti-terrorism laws” shall
mean Executive Order 13224 and related regulations promulgated and enforced by
the Office of Foreign Assets Control, the Money Laundering Control Act, the
United States Patriot Act, or any similar law, order, rule or regulation
enacted in the future. Tenant hereby agrees to defend, indemnity, protect, and
hold harmless Landlord from and against any and all claims, damages, losses,
risks, liabilities, fines, penalties, expenses (including attorneys’ fees) and
costs arising from or related to a breach of the foregoing representations and
warranties. The foregoing indemnity obligations of Tenant shall survive the
termination or expiration of this Lease. 


22.25 Governing Law. This Lease will be
governed by the laws of the state in which the Leased Premises is located
without giving effect to principles of conflicts of law. 


22.26 Payment. All payments to be made to
Landlord or Tenant pursuant to the terms of this Lease shall be made in lawful
currency of the United States of America. 


22.27 Exhibits. The following Exhibits are
attached to this Lease and incorporated herein by reference: 


	
 

	
 


	
 

	
Exhibit “B”
 Legal Description of Premises 


	
 

	
 


	
 

	
Exhibit “C”
 Signage Criteria 





-22-






          IN
WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be signed, in
triplicate, as of the date and year first above written.


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
WITNESSES AS
 TO LANDLORD:

	
 

	
 

	
 

	
LANDLORD:


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
[[Owner-signature
 block]]


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
(Print Name)

	
 

	
By:

	
 

	
 

	
 


	


	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
WITNESSES AS
 TO TENANT:

	
 

	
 

	
 

	
TENANT:

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
[[Account
 Name]]


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
(Print Name)

	
 

	
By:

	
 

	
 

	
 


	


	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
By:

	
 

	
 

	
 


	


	
 

	
 

	



	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
(Print Name)

	
 

	
 

	
 

	
 

	
(Print Name)


	


	
 

	
 

	
 

	
 

	


	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Its:

	
 

	
 

	
 


	


	
 

	
 

	



	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
(Print Name)

	
 

	
 

	
 

	
 

	
(Print Name)


	


	
 

	
 

	
 

	
 

	


	
 

	
 








	
 

	
 


	
STATE OF
 OHIO

	
)


	
 

	
)  SS:


	
COUNTY OF
 MONTGOMERY 

	
)





          This
instrument was acknowledged before me this __________ day of ___________,
2009 by ___________________, ___________________ of
__________________________, a(n) __________ corporation, on behalf of the
corporation. 


	
 

	
 

	
 


	
 

	
 

	



	
 

	
 

	
Notary
 Public


	
 

	
 

	
 


	
STATE OF FLORIDA

	
)

	
 


	
 

	
)  SS:

	
 


	
COUNTY OF BREVARD

	
)

	
 





          This
instrument was acknowledged before me this __________ day of _____________,
2009 by Sei Hwan Pak a/k/a Sam Pak, Chief Executive Officer of
__________________________, a Florida corporation, on behalf of the corporation.



	
 

	
 

	
 


	
 

	
 

	



	
 

	
 

	
Notary
 Public












This
Instrument Prepared By: 


Karen R.
Adams, Esq.

Dinsmore & Shohl LLP 

10 Courthouse Plaza SW, Suite 1100

Dayton, Ohio 45402 


-2-






SCHEDULE A


Rent Schedule


	
 

	
 

	
 

	
 

	
 


	
Lease Year

	
 

	
$ Monthly

	
 

	
                     
    $ Annum


	
 

	
 

	
 

	
 

	
 


	
1

	
 

	
$5,416.67

	
 

	
$65,000.00


	
2

	
 

	
$6,250.00

	
 

	
$75,000.00


	
3

	
 

	
$7,083.33

	
 

	
$85,000.00


	
4
 through 6 plus 3 months)

	
 

	
$Annum Rent / 12

	
 

	
$75,000.00
plus applicable
 CPI





Commencing in
Lease Year 4 (the 37th month) and for the next 39 months of the
Primary Term, rent shall adjust as follows: rent shall be an amount per year
equal to the base rent for the immediately prior year multiplied by a fraction,
the numerator of which is the Consumer Price Index for the year immediately
preceding the applicable year of the Primary Term, and the denominator of which
is the Consumer Price Index for the year of the immediately prior year. For
example, if the Consumer Price Index on the immediately prior year was 2 and
the Consumer Price Index in the fourth year of the Primary Term was 2.5, base
rent shall be calculated by multiplying $75,000 by 1.25 (2.5 divided by 2) or
$93,750.00. In no event shall the rent in any year of the Primary Term be less
than the rent during the preceding year. As used in this Lease, the term
“Consumer Price Index” shall mean the “Consumer Price Index for All Urban
Consumers, U.S. City Average, All Items (1982-84 = 100)” as compiled and
published by the Bureau of Labor Statistics of the United States Department of
Labor, or any comparable successor index. Rent adjustments shall continue in
like manner during any Renewal Period with an annual cap of five percent (5%)
for any given annual increase. 


-3-






SCHEDULE I(2119)


Related Leases


	
 

	
 

	
 


	
14

	
 

	
7163 Airport
 Boulevard


	
 

	
 

	
Mobile,
 Alabama


	
23

	
 

	
Daphne,
 Alabama


	
24

	
 

	
Gadsden,
 Alabama


	
27

	
 

	
Dothan,
 Alabama


	
29

	
 

	
Auburn,
 Alabama


	
102

	
 

	
Florence,
 Alabama


	
103

	
 

	
Decatur,
 Alabama


	
181

	
 

	
Montgomery,
 Alabama


	
139

	
 

	
Springdale,
 Arkansas


	
154

	
 

	
Brunswick,
 Georgia


	
208

	
 

	
Pocatello,
 Idaho


	
228

	
 

	
Ammon, Idaho


	
247

	
 

	
Danville,
 Illinois


	
82

	
 

	
Ottumwa,
 Iowa


	
290

	
 

	
Clinton,
 Iowa


	
11

	
 

	
Baton Rouge,
 Louisiana


	
264

	
 

	
Monroe,
 Michigan


	
17

	
 

	
Gautier,
 Mississippi


	
25

	
 

	
Greenville,
 Mississippi


	
137

	
 

	
Meridian,
 Mississippi


	
138

	
 

	
Columbus,
 Mississippi


	
296

	
 

	
Natchez,
 Mississippi


	
127

	
 

	
Vicksburg,
 Mississippi


	
293

	
 

	
Lumberton,
 North Carolina


	
12

	
 

	
Lima, Ohio


	
170

	
 

	
Middletown,
 Ohio


	
201

	
 

	
New
 Philadelphia OH


	
298

	
 

	
Troy, Ohio


	
318

	
 

	
Ponca City,
 Oklahoma


	
85

	
 

	
New Castle,
 Pennsylvania


	
84

	
 

	
Hermitage,
 Pennsylvania


	
62

	
 

	
Rapid City,
 South Dakota


	
184

	
 

	
Chattanooga,
 Tennessee


	
207

	
 

	
Morristown,
 Tennessee


	
195

	
 

	
San Angelo,
 Texas


	
215

	
 

	
Manitowoc,
 Wisconsin


	
321

	
 

	
Sheboygan,
 Wisconsin





-4-






Exhibit 2.3


Leased Properties


[revise based on final list of sites at
closing] 


	
 

	
 

	
 


	
Store
 Number

	
 

	
Location


	
 

	
 

	
 


	
133

	
 

	
Naples,
 Florida


	
44

	
 

	
Ocala,
 Florida


	
68

	
 

	
Tallahassee,
 Florida


	
128

	
 

	
Merritt
 Island, Florida


	
147

	
 

	
Twin Falls,
 Idaho


	
238

	
 

	
Peru,
 Illinois


	
291

	
 

	
Freeport,
 Illinois


	
254

	
 

	
Bradley,
 Illinois


	
324

	
 

	
Tupelo,
 Mississippi


	
56

	
 

	
Great Fails,
 Montana


	
308

	
 

	
Kalispell,
 Montana


	
91

	
 

	
Lakewood,
 New York


	
276

	
 

	
Findlay,
 Ohio


	
202

	
 

	
Sandusky,
 Ohio


	
5

	
 

	
Centerville,
 Ohio


	
172

	
 

	
Defiance,
 Ohio


	
235

	
 

	
Wilkes-Barre,
 Pennsylvania


	
32

	
 

	
Sumter,
 South Carolina


	
273

	
 

	
N. Myrtle
 Beach, South Carolina


	
287

	
 

	
Texarkana,
 Texas


	
194

	
 

	
Odessa,
 Texas


	
196

	
 

	
Midland,
 Texas


	
283

	
 

	
Bristol,
 Virginia


	
233

	
 

	
Danville,
 Virginia


	
306

	
 

	
Walla Walla,
 Washington


	
219

	
 

	
Casper,
 Wyoming


	
218

	
 

	
Cheyenne, Wyoming


	
263

	
 

	
Lake City,
 Florida


	
161

	
 

	
St.
 Augustine, Florida


	
95

	
 

	
La Grange,
 Georgia


	
54

	
 

	
Cumberland,
 Maryland


	
249

	
 

	
Auburn, New
 York


	
257

	
 

	
Olean, New
 York


	
150

	
 

	
Springfield,
 Ohio


	
203

	
 

	
Marion, Ohio


	
166

	
 

	
Orangeburg,
 South Carolina


	
165

	
 

	
Greenwood,
 South Carolina


	
121

	
 

	
Lake
 Jackson, Texas












	
 

	
 

	
 


	
229

	
 

	
Union Gap,
 Washington


	
241

	
 

	
Bluefield,
 West Virginia


	
246

	
 

	
Bridgeport,
 West Virginia


	
240

	
 

	
Morgantown,
 West Virginia


	
46

	
 

	
Gainesville,
 Florida


	
213

	
 

	
Beavercreek,
 Ohio


	
13

	
 

	
Kingsport,
 Tennessee


	
315

	
 

	
Uniontown,
 Pennsylvania





-2-





Exhibit 2.6


Rex - Appliance Direct Implementation
Schedule: 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Lease for

 Store Number:

	
 

	
Location:

	
 

	
Landlord

	
 

	
Week of:*


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
14

	
 

	
7163 Airport
 Boulevard
Mobile, Alabama

	
 

	
Seller One

	
 

	
3


	
23

	
 

	
Daphne,
 Alabama

	
 

	
Seller One

	
 

	
3


	
24

	
 

	
Gadsden,
 Alabama

	
 

	
Seller One

	
 

	
2


	
27

	
 

	
Dothan,
 Alabama

	
 

	
Seller One

	
 

	
1


	
29

	
 

	
Auburn,
 Alabama

	
 

	
Seller One

	
 

	
3


	
102

	
 

	
Florence,
 Alabama

	
 

	
Seller One

	
 

	
2


	
103

	
 

	
Decatur,
 Alabama

	
 

	
Seller One

	
 

	
2


	
181

	
 

	
Montgomery,
 Alabama

	
 

	
Seller One

	
 

	
7


	
139

	
 

	
Springdale,
 Arkansas

	
 

	
Seller One

	
 

	
4


	
46

	
 

	
Gainesville,
 Florida

	
 

	
Seller Three

	
 

	
8


	
154

	
 

	
Brunswick,
 Georgia

	
 

	
Seller Two

	
 

	
6


	
208

	
 

	
Pocatello,
 Idaho

	
 

	
Seller One

	
 

	
5


	
228

	
 

	
Ammon, Idaho

	
 

	
Seller One

	
 

	
5


	
247

	
 

	
Danville,
 Illinois

	
 

	
Seller Two

	
 

	
7


	
82

	
 

	
Ottumwa,
 Iowa

	
 

	
Seller Two

	
 

	
5


	
290

	
 

	
Clinton,
 Iowa

	
 

	
Seller Two

	
 

	
5


	
11

	
 

	
Baton Rouge,
 Louisiana

	
 

	
Seller One

	
 

	
8


	
264

	
 

	
Monroe,
 Michigan

	
 

	
Seller One

	
 

	
7


	
17

	
 

	
Gautier,
 Mississippi

	
 

	
Seller One

	
 

	
3


	
25

	
 

	
Greenville,
 Mississippi

	
 

	
Seller One

	
 

	
4


	
137

	
 

	
Meridian,
 Mississippi

	
 

	
Seller One

	
 

	
3


	
138

	
 

	
Columbus,
 Mississippi

	
 

	
Seller One

	
 

	
4


	
296

	
 

	
Natchez,
 Mississippi

	
 

	
Seller One

	
 

	
4


	
127

	
 

	
Vicksburg,
 Mississippi

	
 

	
Seller One

	
 

	
4


	
293

	
 

	
Lumberton,
 North Carolina

	
 

	
Seller Two

	
 

	
7


	
213

	
 

	
Beavercreek,
 Ohio

	
 

	
Stuart

 Rose/Beavercreek, Inc. 

	
 

	
8


	
12

	
 

	
Lima, Ohio

	
 

	
Seller One

	
 

	
8


	
170

	
 

	
Middletown,
 Ohio

	
 

	
Seller One

	
 

	
8


	
201

	
 

	
New
 Philadelphia OH

	
 

	
Seller One

	
 

	
7


	
298

	
 

	
Troy, Ohio

	
 

	
Seller One

	
 

	
8


	
318

	
 

	
Ponca City,
 Oklahoma

	
 

	
Seller Three

	
 

	
4


	
85

	
 

	
New Castle,
 Pennsylvania

	
 

	
Seller Two

	
 

	
7


	
84

	
 

	
Hermitage,
 Pennsylvania

	
 

	
Seller Two

	
 

	
7


	
62

	
 

	
Rapid City,
 South Dakota

	
 

	
Seller One

	
 

	
5


	
184

	
 

	
Chattanooga,
 Tennessee

	
 

	
Seller Two

	
 

	
6


	
207

	
 

	
Morristown,
 Tennessee

	
 

	
Seller Two

	
 

	
6


	
195

	
 

	
San Angelo,
 Texas

	
 

	
Seller One**

	
 

	
7


	
215

	
 

	
Manitowoc,
 Wisconsin

	
 

	
Seller One

	
 

	
6


	
321

	
 

	
Sheboygan,
 Wisconsin

	
 

	
Seller One

	
 

	
6












Seller Key: 


Seller One:
Rex Radio and Television, Inc. 


Seller Two:
Kelly & Cohen Appliances, Inc. 


Seller Three:
Stereo Town, Inc. 


* First week of
implementation shall be February 23, 2009. 


** Subject to
termination of existing contract to purchase which is anticipated to be
received on February 3, 2009. 










Exhibit 4.2(a)(ii)


Form of Date-Down Letter


CLOSING CERTIFICATE


          __________________________,
a __________ limited liability company (“Seller”), hereby certifies and
confirms for the benefit of ___________________________ (“Purchaser”), that all
representations and warranties made by Seller in the Purchase and Sale
Agreement dated _______________, 2009, by and between Seller and Purchaser, are
true and correct in all material respects as of the date hereof. 


          DATED
as of the ____ day of ________________, 2009. 


	
 

	
 

	
 

	
 

	
 


	


	
 


	
 


	
By:


	
 

	


	
 


	
Name: 


	
 

	


	
 


	
Title:


	
 

	


	
 














Exhibit 4.2(a)(vi)


Form of Bill of Sale and Assignment


[see attachment]






BILL OF SALE AND ASSIGNMENT


          This
BILL OF SALE AND ASSIGNMENT (this “Bill of Sale”) is made and entered into as
of ________ __, 2009, by and between _______________________________, a
___________________ (“Assignor”), and ______________________ _____, a
_________________ (“Assignee”). 


          In
consideration of the sum of Ten Dollars ($10) and other good and valuable
consideration paid by Assignee to Assignor, the receipt and sufficiency of
which are hereby acknowledged, Assignor does hereby assign, transfer, convey
and deliver to Assignee, its successors and assigns, all of Seller’s right
title and interest in and to the Assets, as such terms are defined in the
Agreement, by and between Assignor and Assignee, dated as of ___________, 2009
(the “Purchase Agreement”). 


          Assignor
warrants to Assignee that Assignor owns all right, title and interest in the
Assets free and clear of any lien, security interest or adverse claim. 


[signatures on following page]






          IN
WITNESS WHEREOF, Assignor and Assignee have executed this Bill of Sale as of
the day and year first above written. 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
ASSIGNEE:

	
 

	
ASSIGNOR: 


	
 

	
 

	
 


	


	
 

	



	
 

	
 

	
 


	
By:

	
 

	
By:


	
 

	


	
 

	
 

	



	
 

	
Name:

	
 

	
      Name:


	
 

	
 

	


	
 

	
 

	



	
 

	
Title:

	
 

	
      Title:


	
 

	
 

	


	
 

	
 

	













Schedule 2.1(c)


Permits






Schedule 3.1(a)(viii)


Schedule of Service Contracts






Schedule 6.1(c)(i)


Schedule of Purchase Option Agreements


	
 

	
 

	
 

	
 

	
 


	
Store

 No.

	
 

	
Property Address

	
 

	
Purchase Option Agreement


	


	
 

	


	
 

	



	
201

	
 

	
331 Graft
 Road

 New Philadelphia, OH

 44663

	
 

	
General
 Warranty Deed, by Newtowne Mall Associates Limited Partnership, as grantor,
 to Rex, as grantee, dated August 25, 1993


	
 

	
 

	
 

	
 

	
 


	
207

	
 

	
2550 E.
 Morris Blvd. 

 Morristown, TN 37813

 

	
 

	
Special
 Warranty Deed, by CBL Morristown, Ltd., as grantor, to Kelly & Cohen
 Appliances, Inc., as grantee, dated October 15, 1993












Schedule 6.1(c)(ii)  


Schedule of Right of First Refusal Agreements  


	
 

	
 

	
 

	
 

	
 


	
Store 

 No.

	
 

	
Property Address

	
 

	
Right of First Refusal Agreements


	


	
 

	


	
 

	



	
207

	
 

	
2550 E.
 Morris Blvd.

 Morristown, TN 37813

 

	
 

	
Special
 Warranty Deed, by CBL Morristown, Ltd., as grantor, to Kelly & Cohen
 Appliances, Inc., as grantee, dated October 15, 1993


	
 

	
 

	
 

	
 

	
 


	
264

	
 

	
2313 N.
 Monroe 

 Monroe, MI 48162

 

	
 

	
Grant Deed
 from Frenchtown Square Partnership to Kelly & Cohen, dated c. December 7,
 1999, recorded in Liber 1872, Page 0009.












Schedule 6.1(e)


Schedule of Litigation


NONE






Schedule 6.1(g)


Schedule of Required Consents