Exhibit 10.57c
THIRD AMENDMENT AND WAIVER TO
CREDIT AGREEMENT
THIRD AMENDMENT AND WAIVER, dated as of July 11, 2003 (this
"Amendment"), to the Credit Agreement referred to below among ATARI, INC.,
successor in interest by merger to INFOGRAMES, INC., a Delaware corporation
("Borrower"), the other parties signatory thereto as Credit Parties, the Lenders
party thereto (the "Lenders"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, for itself, as a Lender, and as agent for the Lenders (in
such capacity, "Agent").
W I T N E S S E T H
WHEREAS, Borrower and Agent are parties to that certain Credit
Agreement, dated as of November 12, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"); and
WHEREAS, Borrower and Agent have agreed to amend the Credit
Agreement, and to waive certain violations of the Credit Agreement, all in the
manner, and on the terms and conditions, provided for herein;
NOW THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
2. Amendment to Annex A of the Credit Agreement. As of the
Amendment Effective Date, Annex A of the Credit Agreement is hereby amended by
inserting the following definition in order to read as follows:
"'Production Fund Closing" means the date on which the financing
contemplated by that certain Letter of Intent dated June 23, 2003
entered into among Borrower, Parent and Attaction GmbH is completed, on
terms and in form and substance satisfactory to Agent."
3. Amendment to Annex G of the Credit Agreement. As of the
Amendment Effective Date, Annex G of the Credit Agreement is amended by amending
and restating clauses (b) and (c) in their entirety to read as follows:
"(b) Minimum Fixed Charge Coverage Ratio. Borrower and Guarantors
shall have on a combined basis at the end of each Fiscal Quarter
beginning with the Fiscal Quarter ending March 31, 2003, a Fixed Charge
Coverage Ratio for the 12-month period then ended of not less than the
following:
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Fixed Charge
Fiscal Quarter Ending Coverage Ratio
--------------------- --------------
March 31, 2003 1.5:1.00
June 30, 2003 1.5:1.00
September 30, 2003 0.5:1.00
and for each Fiscal Quarter thereafter 1.5:1.00
provided, however, that if the Production Fund Closing occurs on or prior to
August 22, 2003, there shall be no minimum Fixed Charge Coverage Ratio
requirement for the Fiscal Quarter ending September 30, 2003.
(c) Minimum EBITDA. Borrower and Guarantors on a combined basis
shall have, at the end of each Fiscal Quarter set forth below, EBITDA
for the 12-month period then ended of not less than the following:
Period EBITDA
------ ------
Fiscal Quarter ending December 31, 2002 $(7,000,000)
Fiscal Quarter ending March 31, 2003 $20,000,000
Fiscal Quarter ending June 30, 2003 $20,000,000
Fiscal Quarter ending September 30, 2003 $10,500,000
for each Fiscal Quarter ending thereafter $20,000,000
provided, however, that if the Production Fund Closing occurs on or prior to
August 22, 2003, the EBITDA for the 12 - month period ending September 30, 2003
shall be no less than ($500,000)."
4. Waiver. As of the Amendment Effective Date, Agent and
Lenders hereby waive all Events of Default arising solely from Borrower's
failure to comply with the requirements set forth in paragraph (d) of Annex E to
the Credit Agreement for the Fiscal Year ended June 30, 2003 that Borrower
deliver to Agent and Lenders certain audited and unaudited Financial Statements
and related documents within 90 days of the end of such Fiscal Year, provided,
that (i) Borrower delivers such Financial Statements and related documents for
Borrower to Agent and Lenders prior to July 15, 2003 and (ii) Borrower delivers
such Financial Statements and related documents for Paradigm and Atari
Interactive Inc. (formerly known as Infogrames Interactive Inc.) to Agent and
Lenders prior to July 31, 2003.
5. Audited Financials. Agent and Lenders acknowledge that the
audited Financial Statements for the Fiscal Year ended March 31, 2003 required
pursuant to paragraph (d) of Annex E to the Credit Agreement for Atari
Interactive Inc. (formerly known as Infogrames Interactive Inc.) and Paradigm
Entertainment, Inc. are being issued with a disclaimer that the auditors of such
Financial Statements are unable to opine on such Financial Statements as a
result of such Credit Parties' failure to test, at least
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annually, goodwill and other intangibles for impairment as required by
Financial Accounting Board Opinion No. 142, and Agent and Lenders acknowledge
that such disclaimer shall not cause such Financial Statements to fail to
satisfy the requirement of such paragraph (d) of Annex E that audited Financial
Statements be certified without qualification.
6. Representations and Warranties. To induce Agent to enter
into this Amendment, each Credit Party hereby represents and warrants that:
(a) The execution, delivery and performance of this
Amendment and the performance of the Credit Agreement as amended by
this Amendment (the "Amended Credit Agreement") by Borrower and the
other Credit Parties: (i) are within their respective organizational
powers; (ii) have been duly authorized by all necessary corporate and
shareholder action; (iii) are not in contravention of any provision of
their respective certificates or articles of incorporation or by-laws
or other organizational documents; (iv) do not violate any law or
regulation, or any order or decree of any court or Governmental
Authority; (v) do not conflict with or result in the breach or
termination of, constitute a default under or accelerate or permit the
acceleration of any performance required by, any indenture, mortgage,
deed of trust, lease, agreement or other instrument to which any
Borrower or any Credit Party is a party or by which Borrower or any
Credit Party or any of its property is bound; (vi) do not result in the
creation or imposition of any Lien upon any of the property of Borrower
or any Credit Party other than those in favor of Agent pursuant to the
Loan Documents; and (vii) do not require the consent or approval of any
Governmental Authority or any other Person.
(b) This Amendment has been duly executed and delivered
by or on behalf of each Credit Party.
(c) Each of this Amendment and the Amended Credit
Agreement constitutes a legal, valid and binding obligation of each
Credit Party enforceable against each Credit Party in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
at law).
(d) No Default or Event of Default has occurred and is
continuing both before and after giving effect to this Amendment.
(e) No action, claim or proceeding is now pending or, to
the knowledge of Borrower and the other Credit Parties, threatened
against Borrower or the other Credit Parties, at law, in equity or
otherwise, before any court, board, commission, agency or
instrumentality of any federal, state, or local government or of any
agency or subdivision thereof, or before any arbitrator or panel of
arbitrators, (i) which challenges Borrower's or the other Credit
Parties' right, power, or competence to enter into this Amendment or,
to the extent applicable,
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perform any of its obligations under this Amendment, the Amended Credit
Agreement or any other Loan Document, or the validity or enforceability
of this Amendment, the Amended Credit Agreement or any other Loan
Document or any action taken under this Amendment, the Amended Credit
Agreement or any other Loan Document or (ii) which, if determined
adversely, is reasonably likely to have or result in a Material Adverse
Effect. To the knowledge of Borrower and each Credit Party, there does
not exist a state of facts which is reasonably likely to give rise to
such proceedings.
(f) The representations and warranties of Borrower and
the other Credit Parties contained in the Credit Agreement and each
other Loan Document shall be true and correct on and as of the date
hereof and the Amendment Effective Date with the same effect as if such
representations and warranties had been made on and as of each such
date, except that any such representation or warranty which is
expressly made only as of a specified date need be true only as of such
date.
7. Ratification of Credit Agreement; Remedies.
(a) Except as expressly provided for, and on the terms
and conditions set forth, herein, the Credit Agreement and the other Loan
Documents shall continue to be in full force and effect in accordance with their
respective terms and shall be unmodified. In addition, this Amendment shall not
be deemed a waiver of any term or condition of any Loan Document by the Agent or
the Lenders with respect to any right or remedy which the Agent or the Lenders
may now or in the future have under the Loan Documents, at law or in equity or
otherwise or be deemed to prejudice any rights or remedies which the Agent or
the Lenders may now have or may have in the future under or in connection with
any Loan Document or under or in connection with any Default or Event of Default
which may now exist or which may occur after the date hereof. The Credit
Agreement and all other Loan Documents are hereby in all respects ratified and
confirmed.
(b) This Amendment shall constitute a Loan Document. The
breach by any Credit Party of any representation, warranty, covenant or
agreement in this Amendment shall constitute an immediate Event of Default
hereunder and under the other Loan Documents.
8. Outstanding Indebtedness; Waiver of Claims. Each of
Borrower and the other Credit Parties hereby acknowledges and agrees that as of
July 10, 2003 the aggregate outstanding principal amount of the Revolving Credit
Loan is $9,199,137.70 and such principal amount is payable pursuant to the
Credit Agreement without defense, offset, withholding, counterclaim or deduction
of any kind. Borrower and each other Credit Party hereby waives, releases,
remises and forever discharges Agent, Lenders and each other Indemnified Person
from any and all suits, actions, proceedings, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) and
disbursements and other costs of investigation or defense, including those
incurred upon
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any appeal of any kind or character, known or unknown, which Borrower or any
other Credit Party ever had, now has or might hereafter have against Agent or
any Lender which relates, directly or indirectly, to any acts or omissions of
Agent or such Lender or any other Indemnified Person on or prior to the
Amendment Effective Date.
9. Amendment Fee; Additional Fee. To induce Agent to enter
into this Amendment, Borrower hereby agrees to pay to Agent (i) an amendment fee
in the amount of $25,000 in immediately payable funds, payable on the Amendment
Effective Date and (ii) if the Production Fund Closing does not occur on or
prior to August 22, 2003, an additional Fee in the amount of $25,000 in
immediately payable funds, payable on August 22, 2003.
10. Expenses. Each of Borrower and the other Credit Parties
hereby reconfirms its respective obligations pursuant to Section 11.3 of the
Credit Agreement to pay and reimburse Agent for all reasonable out-of-pocket
expenses (including, without limitation, reasonable fees of counsel) incurred in
connection with the negotiation, preparation, execution and delivery of this
Amendment and all other documents and instruments delivered in connection
herewith.
11. Effectiveness. This Amendment shall become effective as of
July 11, 2003 (the "Amendment Effective Date") only upon satisfaction in full in
the judgment of the Agent of each of the following conditions on or prior to
July 11, 2003:
(a) Amendment. Agent shall have received three
(3) original copies of this Amendment duly executed and delivered by
Agent, Requisite Lenders and Borrower and acknowledged and agreed to by
each of the Guarantors and Reflections.
(b) Amendment Fee. Agent shall have received the
$25,000 Amendment Fee referred in clause (i) of Section 9 hereof.
(c) Payment of Expenses. Borrower shall have
paid to Agent all costs and expenses billed and owing in connection
with this Amendment and the other Loan Documents and due to Agent
(including reasonable legal fees and expenses).
(d) Representations and Warranties. All
representations and warranties contained in this Amendment shall be
true and correct on and as of the Amendment Effective Date.
12. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
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AMERICA. EACH CREDIT PARTY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX XXXX SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
CREDIT PARTIES, AGENT AND LENDERS PERTAINING TO THIS AMENDMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND
THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE NEW YORK COUNTY AND; PROVIDED, FURTHER THAT
NOTHING IN THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS SHALL BE DEEMED OR
OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT.
EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY
WAIVES ANY OBJECTION THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN
ANNEX I OF THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR 3
BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
13. Counterparts. This Amendment may be executed by the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
ATARI, INC.
By:___________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:___________________________
Name:
Its: Duly Authorized Signatory
[SIGNATURES CONTINUED ON NEXT PAGE]
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The undersigned Credit Parties
hereby (i) acknowledge, agree
and consent to the amendment to
the Credit Agreement effected
by this Amendment and (ii)
other than with respect to
Reflections Interactive
Limited, confirm and agree that
their obligations under the
Guaranty shall continue without
any diminution thereof and
shall remain in full force and
effect on and after the
effectiveness of this
Amendment.
ACKNOWLEDGED, CONSENTED and
AGREED to as of the date
first written above.
ATARI INTERACTIVE, INC.
By:___________________________
Name:
Title:
PARADIGM ENTERTAINMENT, INC.
By:___________________________
Name:
Title:
REFLECTIONS INTERACTIVE LIMITED
By:___________________________
Name:
Title:
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