EXHIBIT 99.2
Execution Copy
ELEVENTH AMENDMENT TO CREDIT AGREEMENT
ELEVENTH AMENDMENT, dated as of January 12, 2005 (this "Amendment"),
to the Credit Agreement referred to below among ATARI, INC., formerly known as
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, Lenders 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, Agent and Requisite Lenders have agreed to amend
the Credit Agreement 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 (as hereinafter defined), Annex A of the Credit Agreement is
hereby amended by amending and restating clause (d) of the definition of "Change
of Control" to read in its entirety as follows:
"(d) Parent, Holdings and Interactive cease to collectively own and
control at least fifty-one percent (51%) of the economic and voting
rights associated with all of the outstanding capital Stock of
Borrower;"
3. Representations and Warranties. To induce Agent and Lenders to
enter into this Amendment, Borrower 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, 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, except those that have
been previously disclosed to Agent and Lenders in the Disclosure Schedules to
the Credit Agreement or in filings of the Borrower with the Securities and
Exchange Commission which have been provided to Agent and Lenders pursuant to
paragraph (g) of Annex E of the Credit Agreement. 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) After giving effect to this Amendment, 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,
subject to previously provided Disclosure Schedules and disclosures contained in
the Borrower's filings with the Securities and Exchange Commission which have
been provided to Agent and Lenders pursuant to paragraph (g) of Annex E of the
Credit Agreement, except that any such
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representation or warranty which is expressly made only as of a specified date
need be true only as of such date.
4. 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.
5. Outstanding Indebtedness; Waiver of Claims. Each of Borrower and
the other Credit Parties hereby acknowledges and agrees that as of January 12,
20052005 the aggregate outstanding principal amount of the Revolving Loan is $0
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 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.
6. 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.
7. Affirmation of Existing Loan Documents. After giving effect to
this Amendment, Borrower (a) confirms and agrees that its obligations under each
of the Loan Documents to which it is a party shall continue without any
diminution thereof and
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shall remain in full force and effect on and after the date hereof, and (b)
confirms and agrees that the Liens granted pursuant to the Collateral Documents
to which it is a party shall continue without any diminution thereof and shall
remain in full force and effect on and after the date hereof.
8. Effectiveness. This Amendment shall become effective as of
January 12, 2005 (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
January 14, 2005:
(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 Credit
Parties.
(b) 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).
(c) Representations and Warranties. All representations and
warranties contained in this Amendment shall be true and correct on and as
of the Amendment Effective Date.
9. 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 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
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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.
10. 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.
[SIGNATURE PAGES TO FOLLOW]
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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: /s/ Xxxxx X. Xxxxx
---------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ Xxxxxxxxxxx Xxx
---------------------------------
Name: Xxxxxxxxxxx Xxx
Its: Duly Authorized Signatory
[SIGNATURES CONTINUED ON NEXT PAGE]
The undersigned Credit Party hereby
acknowledges, agrees and consents to the
amendment to the Credit Agreement
effected by this Amendment.
ACKNOWLEDGED, CONSENTED and
AGREED to as of the date first written
above.
REFLECTIONS INTERACTIVE LIMITED
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name:
Title:
