EXHIBIT 10.4
FIRST AMENDMENT TO SECURED SUBSEQUENT NOTE
This First Amendment (this "First Amendment"), dated as of April 16, 2003,
is between The 3DO Company, a Delaware corporation ("Company"), The 3DO Company,
a California corporation ("Subsidiary") and Xxxxxxx X. Xxxxxxx, III
("Purchaser"). The parties, intending to be legally bound, hereby agree to amend
the Secured Subsequent Note, dated January 30, 2003 (the "Subsequent Note") from
Subsidiary payable to the order of Purchaser, as follows:
1. Definitions. As used in this First Amendment, all capitalized terms not
otherwise defined herein shall have the respective meanings given in the
Subsequent Note.
2. Subsequent Note Amendments.
(a) The first sentence of the Subsequent Note is hereby amended to
read in full as follows:
FOR VALUE RECEIVED The 3DO Company, a California corporation ("Company")
promises to pay to Xxxxxxx X. Xxxxxxx, III ("Investor"), or his registered
assigns, the principal sum of Four Million Dollars ($4,000,000), or such
lesser amount as shall equal the outstanding principal amount hereof,
together with interest from the date of this Note on the unpaid principal
balance at a rate equal to (i) the rate payable by Xxxx Xxxxxx Xxxxxxx
Revocable Trust Dated March 10, 2000 ("Trust Borrower") to Comerica Bank -
California ("Comerica") pursuant to the Variable Rate Single Payment Note
and related documents dated on or about April 16, 2003 (such documents as
they may be hereafter amended or replaced, the "Comerica Agreements") for
obligations outstanding under the Comerica Agreements, whether before or
after an event of default under the Comerica Agreements or (ii) if no
obligations are outstanding under the Comerica Agreements, a rate equal to
nine and one-half percent (9 1/2%) per annum, computed on the basis of the
actual number of days elapsed and a year of 365 days.
(b) Section 2 of the of the Subsequent Note is hereby amended to
read in full as follows:
Accrued interest on this Note shall be payable (i) when interest is payable
to Comerica pursuant to the Comerica Agreements for obligations outstanding
under the Comerica Agreements, or (ii) if no obligations are outstanding
under the Comerica Agreements, ten days after the last day of each calendar
quarter until the outstanding principal amount hereof shall be paid in
full, with the first such payment due ten days after March 31, 2003.
Interest shall be payable in cash.
(c) Section 14(a) of the of the Subsequent Note is hereby amended
to read in full as follows:
Indemnity. In consideration of Investor's purchase of this Note and in
addition to all of Company's other obligations under the Transaction
Documents, Company shall defend,
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protect, indemnify and hold harmless Investor and Trust Borrower and all of
their respective stockholders, officers, directors, employees, trustees,
beneficiaries, and direct or indirect investors and any of Investors' or
Trust Borrower's agents or other representatives (including those retained
in connection with the transactions contemplated by the Transaction
Documents) (collectively, the "Indemnitees") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective
of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys'
fees and disbursements (collectively, the "Indemnified Liabilities"),
incurred by any Indemnitee as a result of, or arising out of, or relating
to any matter or thing or action or failure to act by Indemnitees, or any
of them, arising out of or relating to the Transaction Documents, including
any use by Company of any proceeds from the sale of this Note, except to
the extent such liability arises from the gross negligence or willful
misconduct of the Indemnitees. To the extent that the foregoing undertaking
by Company may be unenforceable for any reason, Company shall make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
3. References in Transaction Documents. The parties acknowledge that all
references to the Subsequent Note in the Transaction Documents shall mean the
Subsequent Note as amended by this First Amendment.
4. Reimbursement of Expenses. Company shall pay on demand the following
fees and expenses: (i) the reasonable legal fees and expenses of Purchaser and
the Xxxx Xxxxxx Xxxxxxx Revocable Trust ("Trust Borrower") in connection with
the preparation, execution and delivery of this First Amendment and the Variable
Rate Single Payment Note and related documents with Comerica Bank - California
("Comerica") dated on or about April 16, 2003 (the "Comerica Agreements"), and
(ii) other expenses of Purchaser, Trust Borrower, or the Xxxxxxx X. Xxxxxxx III
Revocable Trust, dated March 10, 2000 in connection with the Comerica
Agreements. The parties acknowledge that the terms of the Subsequent Note are
intended to pass through the cost of interest to Trust Borrower under the
Comerica Agreements and are not intended to be reimbursed pursuant to this
section, but reimbursable expenses may include origination or loan fees payable
to Comerica under the Comerica Agreements and any other fees or expenses of
Comerica payable under the Comerica Agreements whether before or after an event
of default thereunder.
5. Other Provisions of Agreement. Except as amended in this First
Amendment, all other provisions of the Subsequent Note and the other Transaction
Documents shall remain in full force and effect.
6. Counterparts. This First Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
THE 3DO COMPANY
a Delaware corporation Xxxxxxx X. Xxxxxxx, III
By: /s/ Xxxxx Xxxx Xxxx /s/ Xxxxxxx X. Xxxxxxx, III
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Name: Xxxxx Xxxx Xxxx
Title: Secretary
THE 3DO COMPANY
a California corporation
By: /s/ Xxxxx Xxxx Xxxx
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Name: Xxxxx Xxxx Xxxx
Title: Executive Vice President
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