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EXHIBIT 10.11
THIRD AMENDMENT TO LOAN AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT (this "Third Amendment") is
entered into as of March 16, 1999, by and among THE GOOD GUYS - CALIFORNIA,
INC., a California corporation ("Borrower"), each of the financial institutions
from time to time listed on Schedule I attached to the Loan Agreement defined
below, as amended from time to time (collectively, the "Lenders"), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION ("Xxxxx Fargo"), as agent for the Lenders (in
such capacity, the "Agent").
RECITALS
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WHEREAS, Borrower is currently indebted to the Lenders pursuant to the
terms and conditions of that certain Loan Agreement among Borrower, the Lenders
and the Agent dated as of September 29, 1997, as amended from time to time (the
"Loan Agreement").
WHEREAS, the Lenders, the Agent and Borrower have agreed to certain
changes in the terms and conditions set forth in the Loan Agreement and have
agreed to amend the Loan Agreement to reflect such changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to Section 2.2(b). The second sentence of Section 2.2(b)
of the Loan Agreement setting forth the maximum amount of Letter of Credit
Obligations is amended in its entirety to read as follows:
Except in the Agent's and the Required Lender's discretion, the
amount of all Letter of Credit Obligations shall not at any time
exceed $20,000,000.00.
2. Conditions Precedent. The effectiveness of this Third Amendment and
the Agent's and Lenders' agreements set forth herein are subject to the
satisfaction of each of the following conditions precedent on or before March
23, 1999:
1. Documentation. Borrower shall have delivered or caused to be
delivered to the Agent, at Borrower's sole cost and expense the
following, each of which shall be in form and substance
satisfactory to the Agent:
(1) Two (2) executed original counterparts of this Third
Amendment;
(2) executed counterparts of the Consent and Reaffirmation of
Guarantor attached hereto in the form of Annex I; and
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(3) such additional agreements, certificates, reports, approvals,
instruments, documents, consents and/or reaffirmations as the
Agent or any Lender may reasonably request.
2. Amendment Fee. Borrower shall have paid to the Agent, for the
benefit of the Lenders, a non-refundable, fully earned amendment
fee of $2,500.
3. Miscellaneous. Except as specifically provided herein, all terms and
conditions of the Loan Agreement remain in full force and effect, without waiver
or modification. All terms defined in the Loan Agreement shall have the same
meaning when used in this Third Amendment. This Third Amendment and the Loan
Agreement shall be read together, as one document.
4. Representations and Warranties. Borrower hereby remakes all
representations and warranties contained in the Loan Agreement and reaffirms all
covenants set forth therein. Borrower further certifies that as of the date of
this Third Amendment there exists no Default or Event of Default as defined in
the Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be executed as of the day and year first written above.
THE GOOD GUYS - CALIFORNIA, INC. XXXXX FARGO BANK,
a California corporation NATIONAL ASSOCIATION,
as Agent and Lender
By: _______________________ By: _______________________________
Xxxx Xxxxxx
Title: _______________________ Vice President
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ANNEX I
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CONSENT AND REAFFIRMATION OF GUARANTOR
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Reference is hereby made to the foregoing Third Amendment to Loan
Agreement ("Third Amendment") dated as of March 16, 1999, by and among The Good
Guys - California, Inc., a California corporation ("Borrower"), each of the
financial institutions from time to time listed on Schedule I attached to the
Loan Agreement described therein, as amended from time to time (collectively,
the "Lenders"), and Xxxxx Fargo Bank, National Association ("Xxxxx Fargo"), as
agent for the Lenders (in such capacity, the "Agent").
In order to induce the Agent and the Lenders to enter into the Third
Amendment, the undersigned hereby consents to the execution, delivery and
performance by Borrower, the Agent and the Lenders of the Third Amendment and
all other documents, instruments and agreements now or hereafter executed in
connection therewith (collectively, together with the Third Amendment, the
"Third Amendment Documents"). In connection therewith, the undersigned (a)
expressly and knowingly reaffirms its liability under the Continuing Guaranty
dated as of September 29, 1997 (the "Guaranty") and any and all security
agreements, pledge agreements, deeds of trust, mortgages and other collateral
documents (collectively, together with the Guaranty, the "Third Party
Documents"), heretofore executed and delivered by the undersigned from time to
time in favor of the Agent, for the benefit of the Lenders, (b) expressly agrees
to be and remain liable under the terms of such Third Party Documents for the
obligations of Borrower to the Agent and the Lenders and (c) acknowledges that
it has no defense, offset or counterclaim whatsoever against the Agent or the
Lenders with respect to the Third Party Documents to which it is a party.
The undersigned further agrees that the Third Party Documents to which
it is a party shall remain in full force and effect and are hereby ratified and
confirmed and shall guarantee payment and performance of, or continue to
constitute collateral security for, as the case may be, of all of Borrower's
obligations under the Loan Agreement and related Loan Documents, as any one or
more of the same may be amended by the Third Amendment Documents. The
undersigned acknowledges that (a) none of the Agent or the Lenders has any
obligation to inform it of the particulars of any modification or amendment to
the Loan Agreement or any other Loan Document executed in connection therewith,
and (b) it has established satisfactory means by which Borrower keeps it
informed with respect to any modification of or amendment to the Loan Agreement
and related Loan Documents.
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The undersigned further agrees that the execution of this Consent and
Reaffirmation is not necessary for the continued validity and enforceability of
the Third Party Documents to which it is a party, but is executed to induce the
Agent and the Lenders to enter into the Third Amendment Documents. The
undersigned further agrees that none of the Agent or the Lenders shall have any
obligation to notify it of any actions or omissions to act with respect to its
dealings with Borrower.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has caused this Consent and Reaffirmation to be executed as of March 16,
1999.
THE GOOD GUYS, INC.,
a Delaware corporation
By: _______________________________________
Title: _______________________________________
