exhibit10-4.htm


    Exhibit
10.4

     

    
      SECOND AMENDMENT TO SENIOR
SECURED, SUPER-PRIORITY,

      DEBTOR-IN-POSSESSION CREDIT
AGREEMENT

      


      This
Second Amendment to Senior Secured, Super-Priority Debtor-in-Possession Credit
Agreement (the “Second Amendment”) is made as of the 19th day of December, 2008
by and among

      


      CIRCUIT
CITY STORES, INC., as debtor and debtor-in-possession, a corporation organized
under the laws of the State of Virginia having a place of business at 9950
Mayland Drive, Richmond, Virginia, as Lead Borrower for the Borrowers,
being

       

      said
CIRCUIT CITY STORES, INC., as debtor and debtor-in-possession;

       

      CIRCUIT
CITY STORES WEST COAST, INC., as debtor and debtor-in-possession, a corporation
organized under the laws of the State of California having a place of business
at 680 S. Lemon Avenue, Walnut, California 91789;

       

      Circuit
City Stores PR, LLC, as debtor and debtor-in-possession, a limited liability
company organized under the laws of the Commonwealth of Puerto Rico having a
place of business at San Patricio Plaza 3369, Local C-02 St Ebano &
Tabonuco, Guaynabo, Puerto Rico;

       

      InterTAN
Canada Ltd., as a debtor company, a corporation organized under the laws of the
Province of Ontario, Canada, having its head office at 279 Bayview Drive,
Barrie, Ontario, Canada L4M 4W5;

       

      the
LENDERS party hereto;

       

      Bank of
America, N.A., as Administrative Agent and Collateral Agent for the Lenders and
the Issuing Bank, a national banking corporation, having its principal place of
business at 100 Federal Street, Boston, Massachusetts 02110;

       

      BANK OF
AMERICA (acting through its Canada branch), as Canadian Administrative Agent and
Canadian Collateral Agent for Lenders having a Canadian Commitment, a banking
corporation carrying on business under the Bank Act (Canada), having a
place of business at 200 Front Street West, Toronto; Ontario, Canada M5V
3L2;

       

      GENERAL
ELECTRIC CAPITAL CORPORATION, N.A., as Co-Collateral Agent;

       

      WELLS
FARGO RETAIL FINANCE, LLC, as Syndication Agent; and

       

      GENERAL
ELECTRIC CAPITAL CORPORATION and JPMORGAN CHASE BANK, N.A., as Co-Documentation
Agents;

       

      in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.

       

      WITNESSETH

      


      WHEREAS,
the Lead Borrower and the other Borrowers, the Agents, the Lenders, the Issuing
Bank, the Co-Collateral Agent, the Syndication Agent, the Co-Documentation
Agents have entered into a Senior Secured, Super-Priority Debtor-in-Possession
Credit Agreement dated as of November 12, 2008 (as amended, modified or
supplemented prior to the date hereof, the “DIP Credit Agreement”);

      


      WHEREAS,
the Lead Borrower and the other Borrowers, the Agents, the Lenders, the Issuing
Bank, the Co-Collateral Agent, the Syndication Agent, and the Co-Documentation
Agents have agreed to amend certain provisions of the Credit Agreement, on the
terms and conditions set forth herein; and

      


      WHEREAS,
the Agents, the Lenders, the Issuing Bank, the Co-Collateral Agent, the
Syndication Agent, and the Co-Documentation Agents have agreed to consent to (i)
terms and conditions of that certain stipulation (the “Stipulation”) amending
the Consumer Credit Card Program Agreement, dated as of January 16, 2004 by and
among Chase Bank USA, N.A. and the Lead Borrower and (ii) entry of the
Stipulation by the US Bankruptcy Court, on the terms and conditions set forth
herein.

      


      NOW
THEREFORE, it is hereby agreed as follows:

      


      
        	
                1.  

              	
                ­Definitions:
      All capitalized terms used herein and not otherwise defined shall have the
      same meaning herein as in the DIP Credit
  Agreement.

              


      

       

      
        	
                2.  

              	
                Amendments to Article
      I  The provisions of Article I of the DIP Credit
      Agreement are hereby amended as
follows:

              


      

       

      
        	
                a.  

              	
                The
      definition of “Availability Reserves” is hereby amended by deleting the
      parenthetical in the first line thereof and by substituting the following
      in its stead:

              


      

       

      “(including
the Directors’ Charge, the Administration Charge, the Professional Fee Carve Out
and the then amount of the Other Carve Out Amounts)”

       

      
        	
                b.  

              	
                The
      definition of “Borrowing Base” is hereby amended by adding the words “and
      the then amount of the Other Carve Out Amounts” at the end of clause (f)
      thereof.

              


      

       

      
        	
                c.  

              	
                The
      following new definition is hereby added in appropriate alphabetical
      order:

              


      

       

      “Other Carve Out
Amounts” means the “Carve Out” as defined in the Interim Borrowing Order
or Final Borrowing Order, as applicable, but without duplication of the
Professional Fee Carve Out.

       

      
        	
                3.  

              	
                Amendment to Article
      II.  The provisions of Article II of the DIP Credit
      Agreement are hereby amended by adding “and the then amount of the Other
      Carve Out Amounts” at the end of the first sentence of Section
      2.29(a).

              


      

       

      
        	
                4.  

              	
                Amendments to Article
      V.  The provisions of Article V of the DIP Credit
      Agreement are hereby amended as
follows:

              


      

       

      
        	
                a.  

              	
                Section
      5.15 of the DIP Credit Agreement is hereby deleted in its entirety and the
      following substituted in its stead:

              


      

       

      SECTION
5.15  Intentionally
Omitted.

       

      
        	
                b.  

              	
                Section
      5.18(d) of the DIP Credit Agreement is hereby deleted in its entirety and
      the following substituted in its
stead:

              


      

       

      (d)           The
Domestic Borrowers shall take the actions set forth in a certain side letter
dated as of December 19, 2008 by and among the Domestic Borrowers and the
Administrative Agent and submitted to the U.S. Bankruptcy Court, in each case on
or before the dates set forth in such side letter.

       

      
        	
                5.  

              	
                Amendments to Article
      VI.  The provisions of Article VI of the DIP Credit
      Agreement are hereby amended as
follows:

              


      

       

      
        	
                a.  

              	
                The
      provisions of Section 6.12 of the DIP Credit Agreement are hereby deleted
      in their entirety and the following substituted in their
      stead:

              


      

       

      SECTION
6.12  Intentionally
Omitted.

       

      
        	
                b.  

              	
                The
      provisions of Section 6.13 of the DIP Credit Agreement are hereby amended
      by adding “and the then amount of the Other Carve Out Amounts” after
      “Professional Fee Carve Out” in clauses (b) and (d)(i)
      thereof.

              


      

       

      
        	
                6.  

              	
                Amendment to Article
      VII.  The provisions of Article VII of the DIP Credit
      Agreement are hereby amended as
follows:

              


      

       

      
        	
                a.  

              	
                Section
      7.01 of the DIP Credit Agreement is hereby amended by deleting the
      parenthetical at the end of clause (s) thereof and by substituting the
      following in its stead:

              


      

       

      “(in each
case, other than the Professional Fee Carve Out, the then amount of the Other
Carve Out Amounts, the Administration Charge, the Directors’ Charge and the
claim of the lenders under the Term Loan)”

       

      
        	
                b.  

              	
                Section
      7.04(a) of the DIP Credit Agreement is hereby amended by adding “and the
      then amount of the Other Carve Out Amounts” at the end of clause FIRST
      thereof.

              


      

       

      
        	
                7.  

              	
                Amendment to DIP
      Orders.  The Borrowers and the Required Lenders hereby
      agree that the terms of the DIP Orders may be amended as
      follows:

              


      

       

      
        	
                a.  

              	
                to
      extend the Challenge Period Termination Date (as defined in the DIP
      Orders) until March 1, 2009.

              


      

       

      
        	
                b.  

              	
                to
      provide that fifty percent (50%) of the net proceeds, if any, received by
      the DIP Lenders under the DIP Lenders’ Charge set forth in clause six of
      Section 44 of the Initial Order (as amended and in effect) entered into
      the CCAA proceedings of InterTAN Canada Ltd. shall be paid to the Debtors’
      estates (to the extent allowed by the Canadian bankruptcy court) and not
      applied in reduction of the DIP Obligations or the Pre-Petition
      Debt.

              


      

       

      
        	
                c.  

              	
                to
      permit the proceeds from the Domestic Loan Parties’ furniture, Fixtures
      and Equipment to be retained by the estate and not applied in reduction of
      the Obligations.

              


      

       

      
        	
                d.  

              	
                to
      provide that the Administrative Agent and the Required Lenders may agree
      in their discretion to amendments consisting of changes to the DIP Orders
      which are not material, including, without limitation, the granting of
      adequate protection to certain creditors which have filed objections to
      the DIP Orders.

              


      

       

      
        	
                8.  

              	
                Consent.  The
      Required Lenders hereby consent to the (i) terms and conditions of the
      Stipulation and (ii) entry of the Stipulation by the US Bankruptcy
      Court.

              


      

       

      
        	
                9.  

              	
                Conditions to
      Effectiveness.  This Second Amendment shall not be
      effective until each of the following conditions precedent have been
      fulfilled or waived to the satisfaction of the
  Agents:

              


      

       

      
        	
                a.  

              	
                This
      Second Amendment shall have been duly executed and delivered by the Loan
      Parties, the Agents and the Required Lenders.  The
      Administrative Agent shall have received a fully executed copy hereof and
      of each other document required
hereunder.

              


      

       

      
        	
                b.  

              	
                All
      action on the part of the Loan Parties necessary for the valid execution,
      delivery and performance by the Borrowers of this Second Amendment shall
      have been duly and effectively taken (including, without limitation, entry
      of the Final Borrowing Order).

              


      

       

      
        	
                c.  

              	
                No
      Default or Event of Default shall have occurred and be
      continuing.

              


      

       

      
        	
                d.  

              	
                All
      conditions to effectiveness of this Second Amendment shall have been
      satisfied on or before December 22,
2008.

              


      

       

      
        	
                10.  

              	
                Miscellaneous.

              


      

       

      
        	
                a.  

              	
                Except
      as provided herein, all terms and conditions of the DIP Credit Agreement
      and the other Loan Documents remain in full force and
      effect.  The Borrowers each hereby ratify, confirm, and reaffirm
      all of the representations, warranties and covenants therein
      contained.

              


      

       

      
        	
                b.  

              	
                The
      Borrowers shall pay all reasonable out-of-pocket costs and expenses
      incurred by the Agent in connection with this Second Amendment, including,
      without limitation, all reasonable attorneys’
  fees.

              


      

       

      
        	
                c.  

              	
                This
      Second Amendment may be executed in several counterparts and by each party
      on a separate counterpart, each of which when so executed and delivered,
      each shall be an original, and all of which together shall constitute one
      instrument.  Delivery of an executed counterpart of a signature
      page hereto by telecopy or electronic delivery shall be effective as
      delivery of a manually executed counterpart
  hereof.

              


      

       

      
        	
                d.  

              	
                This
      Second Amendment expresses the entire understanding of the parties with
      respect to the matters set forth herein and supersedes all prior
      discussions or negotiations hereon.

              


      

       

      IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
executed and their seals to be hereto affixed as the date first above
written.

       

      CIRCUIT
CITY STORES, INC.,

       

      (“Lead
Borrower”)

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      “The
Borrowers”

       

      CIRCUIT
CITY STORES WEST COAST,  INC.

       

      


       

      By_________________________________

       

      Print
Name:_________________________

       

      Title:_______________________________

       

      CIRCUIT
CITY STORES PR, LLC

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      BANK OF
AMERICA, N.A.

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      BANK OF
AMERICA, N.A. (acting through its Canada branch)

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      WACHOVIA
CAPITAL FINANCE CORPORATION (CENTRAL)

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      GENERAL
ELECTRIC CAPITAL CORPORATION

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      JPMORGAN
CHASE BANK, N.A.

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      NATIONAL
CITY BUSINESS CREDIT, INC.

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      GMAC
COMMERCIAL FINANCE, LLC

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      WELLS
FARGO RETAIL FINANCE, LLC

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      BURDALE
FINANCIAL, LTD.

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      FIFTH
THIRD BANK

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      TEXTRON
FINANCIAL CORPORATION

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      SUNTRUST
BANK

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      UPS
CAPITAL CORPORATION

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      WEBSTER
BUSINESS CREDIT CORPORATION

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      PNC BANK,
N.A.

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      UBS LOAN
FINANCE LLC

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      CAPITAL
ONE LEVERAGE FINANCE CORP.

       

      


       

      By_________________________________

       

      Print
Name:__________________________

       

      Title:_______________________________

       

      


      
 

      1122553.9