EXHIBIT 10.3
FIRST AMENDMENT DATED AS OF MAY 16, 2003
This First Amendment dated as of May 16, 2003 (this "Amendment") is made by
and among MIDWAY GAMES INC., a Delaware corporation (the "Company"), the
financial institutions parties hereto (the "Banks"), and BANK OF AMERICA, N.A.,
as letter of credit issuing bank and as agent for the Banks (in its capacity as
agent, together with any successors and assigns, the "Agent"). Terms used but
not defined herein have the meanings specified in the Credit Agreement
referenced below.
W I T N E S S E T H:
WHEREAS, the Company, the Banks, the Issuing Bank and the Agent are parties
to that certain Amended and Restated Credit Agreement dated as of March 24, 2003
(the "Credit Agreement");
WHEREAS, the Company has requested that the Banks, agree to amend or modify
the Credit Agreement, so as to (i) provide for the issuance by the Company of
certain additional Preferred Stock, and (ii) extend the date by which certain
post closing items are to be furnished, all as more fully set forth herein; and
WHEREAS, the Agent, the Banks and the Issuing Bank are willing to amend and
modify the Credit Agreement, subject to the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration (the receipt,
adequacy and sufficiency of which are hereby acknowledged), the parties hereto,
intending legally to be bound, hereby agree as follows:
SECTION 1
AMENDMENT TO THE CREDIT AGREEMENT
(a) Section 5.2(e)(ii) of the Credit Agreement is amended to read as
follows:
(ii) except for the redemption/repurchase of the Company's
Preferred Stock (Series B), since the Restatement Closing Date the
Company has neither repurchased nor elected to repurchase any shares
of its capital stock.
(b) Section 7.16(b) of the Credit Agreement is amended by deleting
"within 30 days after the date hereof" and inserting "on or before June 16,
2003".
SECTION 2
WARRANTIES
The Company warrants to the Agent and the Banks as of the date hereof that:
(a) After giving effect to this Amendment, all representations and
warranties contained in the Credit Agreement are true and correct in all
material respects on and as of the date hereof with the same effect as if made
on the date hereof (except to the extent such representations and warranties
expressly refer to an earlier date).
(b) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing or will result from this Amendment.
(c) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable.
(d) The Credit Agreement as modified by this Amendment constitutes the
legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms as modified by the terms of this Amendment, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditor's rights generally or by equitable
principles relating to enforceability.
(e) Concurrently herewith the Company (i) is issuing its Preferred
Stock as more fully described in Exhibit A (the "Series C Preferred Stock"), the
cash proceeds of which shall not be less than $35,000,000, and (ii) is using $
13,171,232.88 of such proceeds to redeem all of its Preferred Stock (Series B)
(the "Series B Redemption").
SECTION 3
CONDITIONS PRECEDENT TO EFFECTIVENESS
The effectiveness of this Amendment is subject to the satisfaction of each
of the following conditions precedent:
(a) Receipt by the Agent of counterparts of this Amendment executed by
the Company, the Guarantors and the Banks;
(b) The Company shall have issued the Series C Preferred Stock and
shall have received not less than $35,000,000 of cash proceeds (before giving
effect to commissions or transaction expenses and the Series B Redemption, it
being understood that the cash proceeds actually wired to the Company will net
out certain expenses and the Series B Redemption price); and
(c) The Company shall have paid all fees and expenses of the Agent's
counsel, to the extent theretofore invoiced to the Company.
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SECTION 4
GENERAL
(a) As hereby modified, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified,
approved and confirmed in all respects.
(b) The Company acknowledges and agrees that the execution and
delivery by the Agent and the Banks of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Agent or the Banks to
execute similar modifications under the same or similar circumstances in the
future.
(c) Upon execution and delivery of this Amendment, this Amendment
shall be binding upon and shall inure to the benefit of the Company, the Agent
and the Banks and their respective successors and assigns.
(d) The Company agrees to pay all fees and out-of-pocket costs and
expenses of the Agent (including reasonable attorneys' fees and expenses of
counsel to the Agent and the Banks) in connection with the preparation and
execution of this Amendment.
(e) This Amendment may be executed in any number of counterparts and
by the different parties on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
Delivered at Chicago, Illinois, as of the date and year first above written.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused the execution and
delivery hereof by their respective representatives thereunto duly authorized as
of May 16, 2003.
COMPANY
MIDWAY GAMES INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
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Title: President and Chief Executive Officer
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AGENT
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
ISSUING BANK
BANK OF AMERICA, N.A., as Issuing Bank
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
BANKS
BANK OF AMERICA, N.A., as a Bank
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ Xxxxxx Xxxxxxxx, Jr.
-----------------------------------------
Name: Xxxxxx Xxxxxxxx, Jr.
---------------------------------------
Title: Vice President
--------------------------------------
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GUARANTOR ACKNOWLEDGMENT
The undersigned, each a guarantor or third party pledgor with respect to
the Company's obligations to the Agent and the Banks under the Credit Agreement,
each hereby (i) acknowledge and consent to the execution, delivery and
performance by the Company of the foregoing First Amendment to the Credit
Agreement ("Amendment"), and (ii) reaffirm and agree that the respective
guaranty, third party pledge or security agreement to which the undersigned is
party and all other documents and agreements executed and delivered by the
undersigned to the Agent and the Banks in connection with the Credit Agreement
are in full force and effect, without defense, offset or counterclaim.
Capitalized terms used herein have the meanings specified in the Amendment.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the undersigned guarantors have caused the
execution and delivery of the Guarantor's Acknowledgment by their respective
representatives thereunto duly authorized as of this May 16, 2003.
GUARANTORS
MIDWAY INTERACTIVE INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Executive Vice President - Finance,
--------------------------------------
Treasurer and Chief Financial Officer
--------------------------------------------
MIDWAY HOME ENTERTAINMENT INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Executive Vice President - Finance,
--------------------------------------
Treasurer and Chief Financial Officer
--------------------------------------------
MIDWAY GAMES WEST INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Executive Vice President - Finance,
--------------------------------------
Treasurer and Chief Financial Officer
--------------------------------------------
MIDWAY AMUSEMENT GAMES, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Executive Vice President - Finance,
--------------------------------------
Treasurer and Chief Financial Officer
--------------------------------------------
MIDWAY SALES COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Executive Vice President - Finance,
--------------------------------------
Treasurer and Chief Financial Officer
--------------------------------------------
MIDWAY HOME STUDIOS INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Executive Vice President - Finance,
--------------------------------------
Treasurer and Chief Financial Officer
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LIST OF OMITTED EXHIBITS
EXHIBIT A-Summary of Preferred Stock Terms
