THIRD AMENDMENT TO AGREEMENT
Exhibit 10(a)
THIRD AMENDMENT TO AGREEMENT
THIS THIRD AMENDMENT TO AGREEMENT (this Amendment) is made effective as of the 31st day of July, 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, under the following circumstances:
A. By Agreement dated as of January 29, 2009 (the Original Agreement), Seller agreed to sell and Purchaser agreed to purchase certain Assets of Seller being more particularly described in Agreement.
B. By First Amendment to Agreement dated as of February 27, 2009, Seller and Purchaser amended the Original Agreement (the First Amendment).
C. By Second Amendment to Agreement dated as of June 30, 2009, Seller and Purchaser amended the Original Agreement (the Second Amendment, and together with the Original Agreement and the First Amendment, the Agreement).
D. Seller and Purchaser have agreed that Purchaser will not proceed with the lease of all of the locations and the parties desire to amend the Agreement as set forth below to conform the Agreement accordingly.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser amend the Agreement as follows:
1. Schedule 2.2 of the Agreement is hereby deleted in its entirety and the Schedule 2.2 attached to this Amendment inserted in lieu thereof.
2. Sections 2.5 of the Agreement is hereby deleted in its entirety and the following inserted in lieu thereof:
2.5 Extended Service Plan (ESP) Payment. Purchaser agrees to accept Sellers customer ESP for Sellers Frigidaire and Whirlpool appliances (excluding air conditioners and dehumidifiers). Seller shall pay to Purchaser, in connection with such assumption as of the Implementation Date, fifty-five percent (55%) of Sellers Book Value of Sellers Frigidaire and Whirlpool appliances ESP for the Properties and Leased Properties (the ESP Credit). Sellers Book Value shall be equal to Sellers reported liability related to ESP less Sellers reported commissions as both are shown on the books and records of Seller in the ordinary course of its business. Seller and Purchaser acknowledge that the ESP Credit for the sites which have been opened by Purchaser as of June 30, 2009 has been applied to pay part of the rent due on such
sites from the Rent Commencement Date (as defined in each Lease) through rent due and outstanding as of June 30, 2009 and Purchaser is not entitled to any additional ESP Credit..
3. Exhibit 2.6 to the Agreement shall be deleted in its entirety and the Exhibit 2.6 attached to this Amendment inserted in lieu thereof.
4. Section 4.2 of the Agreement shall be deleted in its entirety and the following inserted in lieu thereof:
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 or the Escrow Agent, as applicable, through escrow each of the following at Closing:
(i) evidence of Sellers 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) the Leases;
(v) on the Implementation Date for each Site, one or more bills of sale and assignment conveying to Purchaser all of Sellers 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
(vi) 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) evidence of Purchasers authority to consummate the transactions described herein;
(ii) on the Implementation Date for each Property, evidence of insurance required under the Leases;
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(iii) the Leases; and
(iv) on the Implementation Date for each Site, the Bill of Sale and Assignment.
5. Schedule 5.1 of the Agreement shall be deleted in its entirety and the Schedule 5.1 attached to this Amendment inserted in lieu thereof.
6. Section 5.3 of the Agreement shall be deleted in its entirety.
7. Seller has performed all of its obligations under the Agreement as of the date of this Amendment.
8. Except as modified by this Amendment, the Agreement remains in full force and effect.
9. The Agreement, as modified by this Amendment, is ratified and confirmed.
EXECUTED as of the date first written above.
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: |
3
STEREO TOWN, INC., |
a Georgia corporation |
By: |
Name: |
Title: |
REX ALABAMA, INC., |
an Ohio corporation |
By: |
Name: |
Title: |
4
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 |
154 | Brunswick, Georgia | Seller Two |
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 |
Seller Key:
Seller One: Rex Radio and Television, Inc.
Seller Two: Kelly & Cohen Appliances, Inc.
Schedule 2.6
New | |||||
Addrs | Street Name | City | ST | Corporation Name | Start |
No. | Date | ||||
1349 | NW 23rd AVENUE | GAINESVILLE | FL | AD-Gainesville, Inc. | 3/20 |
3010 | ROSS CLARK CIRCLE | DOTHAN | AL | AD-Dothan, Inc. | 3/20 |
101 | TRADE STREET | BRUNSWICK | GA | AD-Brunswick, Inc. | 3/20 |
25297 | HIGHWAY 98 | DAPHNE | AL | AD-Daphne, Inc. | 3/27 |
1500 | RAINBOW DRIVE | GADSDEN | AL | AD-Gadsden, Inc. | 3/27 |
3990 | EASTERN BLVD | MONTGOMERY | AL | AD-Montgomery, Inc. | 3/27 |
1821 | BELTLINE RD. S.W. | DECATUR | AL | AD-Decatur, Inc. | 3/27 |
2095 | FLORENCE BLVD. | FLORENCE | AL | AD-Florence, Inc. | 3/27 |
2406 | HIGHWAY 45 NORTH | COLUMBUS | MS | AD-Columbus, Inc. | 4/3 |
3329 | HIGHWAY 90 | GAUTIER | MS | AD-Gautier, Inc. | 4/3 |
572 | BONITA LAKES DR | MERIDIAN | MS | AD-Meridian, Inc. | 4/3 |
2007 | HWY 1 SOUTH | GREENVILLE | MS | AD-Greenville, Inc. | 4/3 |
373 | JOHN R. JUNKIN DR. | NATCHEZ | MS | AD-Natchez, Inc. | 4/3 |
2101 | E. UNIVERSITY DR | AUBURN | AL | AD-Auburn-AL, Inc. | 4/10 |
7163 | AIRPORT BLVD. | MOBILE | AL | AD-Mobile, Inc. | 4/10 |
2314 | IOWA AVE. | VICKSBURG | MS | AD-Vicksburg, Inc. | 4/10 |
SCHEDULE 5.1
Store | ||
Number | Location | Date Rent is Due |
14 | 7163 Airport Boulevard | 1st |
Mobile, Alabama | ||
23 | Daphne, Alabama | 1st |
27 | Dothan, Alabama | 1st |
24 | Gadsden, Alabama | 1st |
29 | Auburn, Alabama | 1st |
102 | Florence, Alabama | 1st |
103 | Decatur, Alabama | 1st |
181 | Montgomery, Alabama | 1st |
154 | Brunswick, Georgia | 1st |
17 | Gautier, Mississippi | 1st |
25 | Greenville, Mississippi | 1st |
137 | Meridian, Mississippi | 1st |
138 | Columbus, Mississippi | 1st |
296 | Natchez, Mississippi | 1st |
127 | Vicksburg, Mississippi | 1st |