Exhibit 10.12B
AMENDMENT NUMBER TWO TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT (this "Amendment"), is
entered into as of August ___, 2000, among the lenders identified on the
signature pages hereof (individually and collectively, the "Lenders"), FOOTHILL
CAPITAL CORPORATION, a California corporation, as agent for the Lenders (in such
capacity, together with its successors in such capacity, "Agent"; together with
the Lenders, individually and collectively, the "Lender Group"), THE 3DO
COMPANY, a California corporation ("Borrower"), and THE 3DO COMPANY, a Delaware
corporation ("Parent"), and 3DO EUROPE, LTD., a company incorporated under the
laws of England ("UK Sub"; together with Borrower and Parent, individually and
collectively, jointly and severally, "Obligors"), with reference to the
following facts:
WHEREAS, the Lender Group and Obligors are parties to that certain Loan and
Security Agreement, dated as of April 6, 2000 (as amended by that certain
Amendment Number One to Loan and Security Agreement, dated as of June 9, 2000,
and as otherwise amended, restated, or modified from time to time, the
"Agreement");
WHEREAS, Obligors has requested that the Lender Group amend the Agreement to,
among other things, permit Borrower to incur Indebtedness to Mr. Xxxx Xxxxxxx in
an aggregate principal amount of up to $20,000,000; and
WHEREAS, the Lender Group is willing to so amend the Agreement in accordance
with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises
contained herein, the Lender Group and Obligors hereby agree as follows:
Defined Terms. All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the
Agreement, as amended hereby.
Amendments to the Agreement.
Section 1.1 of the Loan Agreement hereby is amended by adding the following
definitions thereto or amending and restating the following definitions in their
entirety, as applicable:
"Xxxxxxx" means Mr. Xxxx Xxxxxxx, an individual
residing in California.
"Xxxxxxx Subordination Agreement" means that certain
Subordination Agreement, dated as of August ___, 2000, among
Obligors, Agent, and Xxxxxxx.
"Xxxxxxx Subordinated Note" means that certain
[Convertible Promissory Note] dated August ___, 2000, issued
by Parent to Xxxxxxx.
"Second Amendment" means that certain Amendment
Number Two to Loan and Security Agreement, dated as of August
___, 2000, among Lenders, Agent and Obligors.
"Second Amendment Effective Date" means the date on
which all of the conditions to the effectiveness of the Second
Amendment set forth in Section 5 thereof have been fulfilled
to the satisfaction of Agent.
Section 7.1(f) of the Loan Agreement hereby is amended by (i) deleting the final
"and" in clause (iii) of such section, (ii) deleting the final ";" in clause
(iv) of such section and inserting ", and" in lieu thereof, and (iii) adding the
following to such section as a new clause (v):
(v) during the period from the Second Amendment
Effective Date to November 15, 2000, by Parent to Xxxxxxx in
an aggregate amount not to exceed $20,000,000 plus accrued
interest thereon, to the extent that such Indebtedness is
subject to the Xxxxxxx Subordination Agreement;
Section 8 of the Loan Agreement hereby is amended by (i) deleting the final "or"
in Section 8.11, (ii) deleting the final "." in Section 8.12 and inserting ";"
in lieu thereof, (iii) deleting the final "." in Section 8.13 and inserting ";
or" in lieu thereof, and (iv) inserting the following at the end of such section
as a new Section 8.14:
8.14 If, on or before November 15, 2000, the
Indebtedness of Parent under the Xxxxxxx Subordinated Note
shall have not been converted into common Stock of
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Parent in accordance with the terms thereof.Representations
and Warranties. Each Obligor hereby represents and warrants to
the Lender Group that:
the execution, delivery, and performance of this Amendment and of the Agreement,
as amended by this Amendment, are within its corporate powers, have been duly
authorized by all necessary corporate action, and are not in contravention of
any law, rule, or regulation, or any order, judgment, decree, writ, injunction,
or award of any arbitrator, court, or governmental authority, or of the terms of
its charter or bylaws, or of any contract or undertaking to which it is a party
or by which any of its properties may be bound or affected, this Amendment and
the Agreement, as amended by this Amendment, constitute Borrower's legal, valid,
and binding obligation, enforceable against Borrower in accordance with its
terms.
Reaffirmation of Guaranties. Parent hereby confirms and agrees that the Parent
Guaranty is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects. UK Sub hereby confirms and agrees that
the UK Sub Guaranty is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects.
Conditions Precedent to Amendment. The satisfaction of each of the following, on
or before August ___, 2000, shall constitute conditions precedent to the
effectiveness of this Amendment:
Agent shall have received the following documents, duly executed, and each such
document shall be in full force and effect:
this Amendment, and
the Xxxxxxx Subordination Agreement.
Agent shall have received a copy of the executed Subordinated Note, together
with all other instruments, documents, and agreements executed or entered into
in connection therewith, in each case, certified by an officer of Parent as
being true, correct, and complete, and the same shall be in form and substance
satisfactory to Agent.
The representations and warranties in this Amendment, the Agreement as amended
by this Amendment, and the other Loan Documents shall be true and correct in all
respects on and as of the date hereof, as though made on such date (except to
the extent that such representations and warranties relate solely to an earlier
date);
No Event of Default or event which with the giving of notice or passage of time
would constitute an Event of Default shall have occurred and be continuing on
the date hereof, nor shall result from the consummation of the transactions
contemplated herein;
No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
governmental authority against Borrower or the Lender Group;
Agent shall have received, for the ratable benefit of Lenders, an amendment fee
of $5,000, which fee shall be fully earned and non-refundable when paid, and
which Fee Borrower hereby directs and authorizes Agent to charge to Borrower's
Loan Account immediately upon execution of this Amendment; and
All other documents and legal matters in connection with the transactions
contemplated by this Amendment shall have been delivered or executed or recorded
and shall be in form and substance satisfactory to Agent and its counsel.
Miscellaneous.
Upon the effectiveness of this Amendment, each reference in the Agreement to
"this Agreement", "hereunder", "herein", "hereof" or words of like import
referring to the Agreement shall mean and refer to the Agreement as amended by
this Amendment.
Upon the effectiveness of this Amendment, each reference in the Loan Documents
to the "Loan Agreement", "thereunder", "therein", "thereof" or words of like
import referring to the Agreement shall mean and refer to the Agreement as
amended by this Amendment.
This Amendment shall be governed by and construed in accordance with the laws of
the State of California.
This Amendment may be executed in any number of counterparts and by different
parties on separate counterparts, each of which, when executed and delivered,
shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Amendment. Delivery of an executed counterpart
of this Amendment by telefacsimile shall be equally as effective as delivery of
a manually executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver a
manually executed counterpart of this Amendment but the failure to deliver a
manually executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
THE 3DO COMPANY,
a California corporation
By: _______________________________________________
Name: _____________________________________________
Title: ____________________________________________
THE 3DO COMPANY,
a Delaware corporation
By: _______________________________________________
Name: _____________________________________________
Title: ____________________________________________
3DO EUROPE, LTD., ,
a company incorporated under the laws of England
By: _______________________________________________
Name: _____________________________________________
Title: ____________________________________________
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and a Lender
By: _______________________________________________
Name: _____________________________________________
Title: ____________________________________________
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