Exhibit 10.64
AMENDMENT NO. 3 TO AGENCY AGREEMENT
This Amendment No. 3 to Agency Agreement (this "Amendment") is
made as of this 31st day of January, 2002, by and among: Quality Stores, Inc., a
Delaware corporation, with a principal place of business at 455 E. Ellis Road,
Muskegon, MI 49441 (the "Merchant"); Tractor Supply Company, a Delaware
corporation, with a principal place of business at 320 Plus Park Blvd.,
Nashville, TN 37217 ("TSC"); Great American Group, a California corporation,
with a principal place of business at One Parkway North Suite 520, Deerfield, IL
60015; Gordon Brothers Retail Partners, LLC, a Delaware limited liability
company, with a principal place of business at 40 Broad Street, Boston, MA
02109; and DJM Asset Management LLC, a Delaware limited liability company, with
a principal place of business located at 445 Broad Hollow Road, Melville, NY
11747 (collectively, the "Agent") (Merchant and Agent shall each be referred to
herein as a "Party" or collectively as the "Parties")
RECITALS:
WHEREAS, on December 31, 2001, Merchant and Agent entered into an
Agency Agreement which provides the Merchant and Agent with certain rights and
obligations as expressly set forth therein, which Agency Agreement was amended
by that certain Amendment No. 1 to Agency Agreement dated January 4, 2002 and
that certain Amendment No. 2 to Agency Agreement dated January 25, 2002 (as
amended, the "Agreement"); and
WHEREAS, Merchant and Agent desire to amend and modify the Agreement,
subject to the terms and conditions of this Amendment, to: (i) increase the
number of Stores over which TSC shall have Real Estate Designation Rights
(inclusive of the FF&E located therein), (ii) grant the Agent the right to
purchase all of Merchant's right, title and interest in and to the FF&E in the
Closed Stores pursuant to the Agreement, (iii) increase the Transaction
Consideration; and (iv) amend Exhibit 1A of the Agreement to include Store 457
in Massena, New York.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Agent and Merchant agree as
follows:
Section 1.Incorporation of Terms. All terms that are defined in the
Agreement shall have the same meaning herein, unless the same shall be expressly
amended and modified by the terms of this Amendment.
Section 2.Property Designation Rights; Transaction Consideration. Agent
shall have: (i) all rights granted under Section 15 of the Agreement with
respect to Stores 68, 148 and 149, in addition to all other Stores listed on
Exhibit 1A; provided, further, that in addition to the rights being granted
under Section 15 of the Agreement with regard to the subject Stores, TSC shall
also acquire all of the furniture, fixtures and equipment located at each such
Store. In return for Merchant's grant to Agent of these additional rights,
Section 2.1 of the Agreement shall be amended to provide that the Transaction
Consideration shall be increased by the total amount of One Hundred Thousand and
00/100 Dollars ($100,000.00), which amount shall be paid by TSC to Merchant in
immediately available funds promptly after approval of this Amendment by the
Bankruptcy Court.
Section 3. Purchase of Closed Stores' FF&E; Store 457.
Section 3.1. Section 14 of the Agreement shall be amended to
provide that the Closed Stores shall be included among the locations at
which Agent shall have been deemed to purchase Merchant's right, title
and interest in and to the FF&E located thereat, and all proceeds
generated from the sale of such Closed Stores' FF&E shall constitute
FF&E Proceeds under the Agreement. In return for Merchant's grant to
Agent of these additional rights, Section 2.1 of the Agreement shall be
amended to provide that the Transaction Consideration shall be
increased by the total amount of Ninety-One Thousand and 00/100 Dollars
($91,000.00), which amount shall be paid by Agent to Merchant in
immediately available funds promptly after approval of this Amendment
by the Bankruptcy Court. Agent shall vacate the following Closed Stores
no later than 11:59 p.m. on January 31, 2002: 427, 454, 464, 160, 405,
414, 420, 421, 448, 460, 582, 593 and 712; provided, however, Agent
shall be entitled to abandon any unsold FF&E in the subject Closed
Stores upon vacating same. Agent shall vacate the following Closed
Stores no later than 11:59 p.m. on February 28, 2002: 39, 91, 137, 138,
449, 452 and 465; provided, however, Agent shall be entitled to abandon
any unsold FF&E in the subject Closed Stores upon vacating same;
provided, further, however, that notwithstanding anything herein to the
contrary, Agent's obligation to pay any Expenses, including, but not
limited to, Occupancy Expenses, with regard to the subject Closed
Stores shall be limited to the period of time through and including the
applicable Vacate Date for each such location.
Section 3.2. Merchant and Agent agree and acknowledge that,
during the Sale Term, the (i) Sale has been and is being conducted in
Store 457 in Massena, New York ("Store 457"), (ii) merchandise in Store
457 was included in the Merchandise Count for purposes of Section 4 of
the Agreement, (iii) proceeds from the sale of the Merchandise in Store
457 have been and are being included in "Proceeds" for purposes of
Section 6 of the Agreement, and (iv) the expenses for Store 457 have
been and are being included in "Expenses" for purposes of Section 3 of
the Agreement, even though Store 457 is not listed on Exhibit 1A to the
Agreement. The Agreement shall be amended to list Store 457 on Exhibit
1A to the Agreement and to otherwise include Store 457 in the
definition of "Stores" as that term is used in the Agreement.
Section 4. Miscellaneous.
4.1 Entire Agreement. This Amendment, along with the
Agreement, contains the entire agreement between the parties hereto
with respect to the transactions contemplated hereby. Except as
expressly amended or modified by the provisions of the Amendment, the
Agreement shall remain in full force and effect between the Parties.
4.2 Amendments. This Amendment may not be modified except in a
written instrument executed by each of the Parties.
4.3 Execution in Counterparts. This Amendment may be executed
in two (2) or more counterparts, each of which shall be deemed an
original and all of which together shall constitute but one agreement.
This Amendment may be executed by facsimile, and such facsimile
signature shall be treated as an original signature hereunder.
IN WITNESS WHEREOF, Agent and Merchant hereby execute this
Amendment by their duly authorized representatives as of the day and year first
written above.
TRACTOR SUPPLY COMPANY
By: /s/ James F. Wright
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Name: James F. Wright
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Title: President and Chief Operating Officer
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GREAT AMERICAN GROUP
By: /s/ Benjamin L. Nortman
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Name: Benjamin L. Nortman
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Title:
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GORDON BROTHERS RETAIL PARTNERS LLC
By: /s/ James Schaye
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Name: James Schaye
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Title:
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DJM ASSET MANAGEMENT LLC
By: /s/ Andrew Graiser
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Name: Andrew Graiser
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Title:
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QUALITY STORES, INC.
By: /s/ Peter D. Fitzsimmons
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Name: Peter D. Fitzsimmons
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Title:
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