EXHIBIT 10.2
CONSENT TO
CREDIT AGREEMENT
CONSENT, dated as of July 15, 2004 (this "Consent"), 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 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, Agent has agreed to consent to certain transactions
described herein, 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. Consent. As of the Effective Date (as hereinafter defined), the
Requisite Lenders hereby (i) consent to (A) Borrower making, on behalf of
California U.S. Holdings, Inc. ("CUSH"), all payments to Xxxxxxxx Xxxxxxxx
("Chesnais"), the Executive Vice President and Chief Financial Officer of CUSH,
as are required pursuant to the terms of that certain employment letter dated
July 7, 2004 between Chesnais and CUSH, provided that the amounts of any such
payments are promptly set off by Borrower against any amounts owed by Borrower
to Parent or the Subsidiaries or Affiliates of Parent (collectively, the "Parent
Entities") or are promptly reimbursed by Parent, and (B) Borrower entering in to
that certain lease for an apartment to be used by Chesnais and his family until
July 31, 2006 (the "Lease"), and to making monthly lease payments under the
Lease in the amount of $13,995, provided that the amounts of any such lease
payments are promptly set off against any amounts owed by Borrower to the Parent
Entities or are promptly reimbursed by Parent, and (ii) agree that making the
payments contemplated by clause (i) of this paragraph 2 and entering into the
Lease will not violate any provision of the Credit Agreement or any Loan
Document, including, without limitation, Section 6.2, Section 6.4 and Section
6.14 of the Credit Agreement.
3. Representations and Warranties. To induce Agent to enter into
this Consent, each Credit Party hereby represents and warrants that:
(a) The execution, delivery and performance of this Consent 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 Consent has been duly executed and delivered by or on
behalf of each Credit Party.
(c) This Consent 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 Consent.
(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 Consent or, to the extent applicable,
perform any of its obligations under this Consent, the Credit Agreement or
any other Loan Document, or the validity or enforceability of this
Consent, the Credit Agreement or any other Loan Document or any action
taken under this Consent, the 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 the filings of the Borrower with the Securities
and Exchange Commission, which have been provided to the Agent and Lenders
pursuant to paragraph (g) of Exhibit E to 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.
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(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
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, 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.
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 Consent 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 Consent shall constitute a Loan Document. The breach by any
Credit Party of any representation, warranty, covenant or agreement in this
Consent shall constitute an immediate Event of Default hereunder and under the
other Loan Documents.
5. Outstanding Indebtedness; Waiver of Claims. The Borrower and the
other Credit Parties hereby acknowledge and agree that as of July 14, 2004 the
aggregate outstanding principal amount of the Revolving Credit Loan is
$9,343,170.28 and such principal amount is payable pursuant to the Credit
Agreement without defense, offset, withholding, counterclaim or deduction of any
kind. The Borrower and each other Credit Party hereby waive, release, remise and
forever discharge 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 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,
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preparation, execution and delivery of this Consent and all other documents and
instruments delivered in connection herewith. Borrower shall pay to Agent all
costs and expenses billed and owing in connection with this Consent and the
other Loan Documents and due to Agent (including reasonable legal fees and
expenses) on or before the 30th day following the date hereof.
7. Effectiveness. This Consent shall become effective as of July 15,
2004 (the "Effective Date") only upon satisfaction in full in the judgment of
the Agent of each of the following conditions:
(a) Consent. Agent shall have received on or prior to July 23, 2004
three (3) original copies of this Consent duly executed and delivered by
Agent, Lenders and Borrower and acknowledged and agreed to by each of the
Credit Parties.
(b) Representations and Warranties. All representations and
warranties contained in this Consent shall be true and correct on and as
of the Effective Date.
8. 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 CONSENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATING TO THIS CONSENT 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 CONSENT 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
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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.
9. Counterparts. This Consent 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 Consent to
be duly executed and delivered as of the day and year first above written.
ATARI, INC.
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Executive Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:/s/ X.X. Xxxx
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Name: X.X. Xxxx
Its: Duly Authorized Signatory
[SIGNATURES CONTINUED ON NEXT PAGE]
The undersigned Credit Parties hereby (i)
acknowledge, agree and consent to this
Consent 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 Consent.
ACKNOWLEDGED, CONSENTED and AGREED to as of
the date first written above.
REFLECTIONS INTERACTIVE LIMITED
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Director
