Exhibit 10.12E
AMENDMENT NUMBER FIVE
TO LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER FIVE TO LOAN AND SECURITY AGREEMENT
(this "Amendment") is entered into as of February 12, 2002, among the lenders
identified on the signature pages hereof (the "Lenders"), FOOTHILL CAPITAL
CORPORATION, a California corporation, as the arranger and administrative agent
for the Lenders (the "Agent"), THE 3DO COMPANY, a California corporation
("Borrower"), THE 3DO COMPANY, a Delaware corporation ("Parent"), and 3DO
EUROPE, LTD., a company incorporated under the laws of England ("UK Sub"), with
reference to the following:
WHEREAS, the Obligors have previously entered into 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, by that certain Amendment Number Two to Loan and Security
Agreement, dated as of September 18, 2000, by that certain Amendment Number
Three to Loan and Security Agreement, dated as of December 1, 2000, and by that
certain Amendment Number Four to Loan and Security Agreement, dated as of August
14, 2001 (as so modified and as otherwise heretofore amended, modified or
supplemented from time to time, the "Agreement"), with the Lender Group,
pursuant to which the Lender Group has made certain loans and financial
accommodations available to the Obligors. Terms used herein without definitions
shall have the meanings ascribed to them in the Agreement;
WHEREAS, the Obligors have requested that Agent and the
Lenders amend the Agreement in accordance with the terms and conditions hereof;
and
WHEREAS, Agent and the Lenders are willing to amend the
Agreement in accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Amendments To The Agreement.
(a) Section 1.1 of the Agreement is hereby amended by
amending and restating the definition of "Tangible Net Worth" in its entirety to
read as follows:
"Tangible Net Worth" means, as of any date of
determination, the amount equal to (a) all assets of Parent and its
Subsidiaries, minus (b) all liabilities of Parent and its Subsidiaries, minus
(c) all Intangible Assets of Parent and its Subsidiaries, determined on a
consolidated basis according to GAAP.
(b) Section 7.19(a) of the Agreement is hereby
amended and restated in its entirety to read as follows:
(a) Tangible Net Worth. Fail to maintain
Tangible Net Worth of not less than the required amount set forth in the
following table for the applicable period set forth opposite thereto:
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Measurement Date Tangible Net Worth
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November 2001 $34,500,000
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December 2001 $26,500,000
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January 2002 $23,000,000
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February 2002 $20,500,000
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March 2002 $22,000,000
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2. Conditions Precedent to Amendment. The satisfaction of each of the
following, unless waived or deferred by Agent in its sole discretion, shall
constitute conditions precedent to the effectiveness of this Amendment and each
and every provision hereof:
(a) Agent shall have received this Amendment, duly executed by
the parties hereto, and the same shall be in full force and effect;
(b) Agent shall have received a certificate from the Secretary
of each Obligor attesting to the incumbency and signatures of authorized
officers of such Obligor and to the resolutions of such Obligor's Board of
Directors authorizing its execution and delivery of this Amendment, the
performance of its obligations under this Amendment and the Agreement as amended
by this Amendment, and authorizing specific officers of such Obligor to execute
and deliver the same;
(c) 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);
(d) After giving effect to this Amendment, no Default or Event
of Default shall have occurred and be continuing on the date hereof, or shall
result from the consummation of the transactions contemplated herein;
(e) 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 the Agent or any of the Lenders or Obligors;
(f) Agent shall have received, for the ratable benefit of the
Lenders, an amendment fee in the amount of $10,000.00; and
(g) 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.
3. Representations and Warranties. Each Obligor hereby represents and
warrants to the Lender Group that (a) the execution, delivery, and performance
of this Amendment and of the Agreement, as amended by this Amendment, are within
such Obligor's 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, and (b) this Amendment and the Agreement,
as amended by this Amendment, constitute such Obligor's legal, valid, and
binding obligation, enforceable against such Obligor in accordance with its
terms, and (c) this Amendment has been duly executed and delivered by such
Obligor.
4. Choice of Law. The validity of this Amendment, its construction,
interpretation and enforcement, and the rights of the parties hereunder, shall
be determined under, governed by, and construed in accordance with the laws of
the State of California.
5. Counterparts; Telefacsimile Execution. This Amendment may be
executed in any number of counterparts and by different parties and separate
counterparts, each of which when so executed and delivered, shall be deemed an
original, and all of which, when taken together, shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to this
Amendment by telefacsimile shall be 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.
6. Effect on Loan Documents.
(a) The Agreement, as amended hereby, and the other Loan
Documents shall be and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all respects. The
execution, delivery, and performance of this Amendment shall not, except as
expressly set forth herein, operate as a waiver of or, except as expressly set
forth herein, as an amendment of, any right, power, or remedy of Agent or any
Lender under the Agreement, as in effect prior to the date hereof. The waivers,
consents, and modifications herein are limited to the specifics hereof, shall
not apply with respect to any facts or occurrences other than those on which the
same are based, shall not excuse future non-compliance with the Agreement, and
shall not operate as a consent to any further or other matter, under the Loan
Documents.
(b) Upon and after 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, and each reference in the
other Loan Documents to "the Agreement", "thereunder", "therein", "thereof" or
words of like import referring to the Agreement, shall mean and be a reference
to the Agreement as modified and amended hereby.
(c) To the extent that any terms and conditions in any of the
Loan Documents shall contradict or be in conflict with any terms or conditions
of the Agreement, after giving effect to this Amendment, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the
terms and conditions of the Agreement as modified or amended hereby.
7. Further Assurances. The Obligors shall execute and deliver all
agreements, documents, and instruments, in form and substance satisfactory to
Agent, and take all actions as Agent may reasonably request from time to time,
to perfect and maintain the perfection and priority of Agent's or any Lender's
security interests in the Collateral and to fully consummate the transactions
contemplated under this Amendment and the Agreement, as amended by this
Amendment.
8. Entire Agreement. This Amendment, together with all other
instruments, agreements, and certificates executed by the parties in connection
herewith or with reference thereto, embody the entire understanding and
agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings,
and inducements, whether express or implied, oral or written.
[Signature page follows]
IN WITNESS WHEREOF, the parties have entered into this
Amendment as of the date first above written.
THE 3DO COMPANY,
a California corporation
By /s/ Xxxxx Xxxx Xxxx
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Title: Exec. Vice President
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THE 3DO COMPANY,
a Delaware corporation
By /s/ Xxxxx Xxxx Xxxx
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Title: Secretary
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3DO EUROPE, LTD.,
a corporation organized under the laws of England
By /s/ Xxxxx Xxxx Xxxx
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Title: Director
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FOOTHILL CAPITAL CORPORATION,
a California corporation
By Xxxxx Xxxxxxxxx
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Title: Vice President
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