EXHIBIT 10.6
JOINDER TO LOAN AND SECURITY AGREEMENT
This Joinder to Loan and Security Agreement ("Joinder") is made this
___ day of June, 1998 by and among THE ELECTRONICS BOUTIQUE, INC. ("EB" or
the "Initial Borrower"), a Pennsylvania corporation and ELECTRONICS BOUTIQUE
OF AMERICA INC. ("EB America"), a Pennsylvania corporation and FLEET CAPITAL
CORPORATION ("Lender"), a Rhode Island Corporation.
BACKGROUND
A. EB and Lender are parties to a certain Loan and Security
Agreement dated March 16, 1998, as amended from time to time ("Loan
Agreement") pursuant to which the Initial Borrower established certain
financing arrangements with lender. The Loan Agreement and all instruments,
documents and agreements executed in connection therewith, or related
thereto, as amended from time to time, are referred to herein collectively as
the "Existing Loan Documents". All capitalized terms used herein without
further definition shall have the meanings ascribed thereto in the Loan
Agreement.
B. Pursuant to a certain Assignment, Xxxx of Sale and Assumption
Agreement dated as of May 31, 1998, all or substantially all of the assets of
EB were transferred to EB America. In recognition of the benefits and
privileges thereunder, EB America has requested that it be permitted to join
into the Existing Loan Documents as if it were an original signatory thereto
and the Initial Borrower and Lender have so consented subject to the terms
and conditions hereof.
NOW, THEREFORE, with the foregoing Background incorporated by
reference and made a part hereof and intending to be legally bound, the
parties agree as follows:
1. Joinder.
(a) Upon the effectiveness of this Joinder, EB America
joins in, assumes, adopts and becomes a Borrower under the Existing Loan
Documents. All references to Borrower contained in the Existing Loan
Documents are hereby deemed, for all purposes, to refer to and include EB
America as a Borrower and EB America hereby agrees to comply with all of the
terms, undertakings and conditions of the Existing Loan Documents as if it
was an original signatory thereto.
(b) Without limiting the generality of the provisions of
subparagraph (a) above, EB America is thereby liable, on a joint and several
basis, along with EB, for all Obligations incurred at any time by any one or
more Borrowers under the Existing Loan Documents, as amended hereby or as may
be hereafter amended, modified or supplemented.
2. Representations and Warranties. EB hereby reaffirms, and EB America
hereby represents and warrants that, except as set forth on Schedule "A" hereto,
as of the date hereof, all of the existing representations and warranties
contained in the Loan Agreement and the Existing Loan
Documents are true and correct as of the date hereof.
3. Collateral. As security for payment of the Obligations, and
satisfaction by Borrowers of all covenants and undertakings contained in the
Loan Agreement and the Existing Loan Documents, EB America hereby assigns and
grants to Lender a continuing first lien on and security interest in, upon
and to all of its now owned or hereafter acquired, created or arising
Collateral, as defined and described in the Loan Agreement.
4. Effectiveness Conditions. This Joinder shall be effective and EB
America shall be deemed a Borrower under the Loan Agreement and the Existing
Loan Documents upon completion of the following conditions precedent (all
documents to be in form and substance satisfactory to Lender and Lender's
counsel):
a. Execution of this Joinder to Loan and Security Agreement.
b. Execution and delivery of an Allonge to Revolving Credit
Note.
c. Execution and filing of UCC-1 financing statements by EB
America in all jurisdictions which Lender may deem appropriate.
d. Certification and delivery of (i) the resolutions of EB
American's board of directors authorizing the execution of this Joinder, the
Allonge to be issued hereunder, and each document required to be delivered by
any section hereof and (ii) EB America's articles of incorporation and by-laws.
e. Execution and delivery of an Incumbency Certificate by EB
America identifying all Authorized Officers with specimen signatures.
f. Delivery of written opinions by EB America's independent
counsel addressed to Lender.
g. Execution and delivery of an Officer's Certificate of EB
America.
5. Ratification of Existing Loan Documents. Except as expressly set
forth herein, all of the terms and conditions of the Loan Agreement and the
Existing Loan Documents are hereby ratified and confirmed and continue
unchanged and in full force and effect. Borrowers each hereby confirm and
agree that all security interests and Liens granted to Lender continue in
full force and effect and shall continue to secure the Obligations. All
Collateral remains free and clear of any Liens other than Permitted Liens or
Liens in favor of Lender. Nothing herein contained is intended to in any
manner impair or limit the validity, priority, and extent of Lender's
existing security interest in and Liens upon the Collateral. All references
to the Loan Agreement shall mean the Loan Agreement as modified by this
Joinder.
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IN WITNESS WHEREOF, the parties have executed this Joinder the day
and year first above written.
THE ELECTRONICS BOUTIQUE, INC.
BY:________________________________
ATTEST:____________________________
ELECTRONICS BOUTIQUE OF
AMERICA INC.
BY:________________________________
ATTEST:____________________________
FLEET CAPITAL CORPORATION
BY:________________________________
ATTEST:____________________________
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