EXHIBIT 10.28
SEVENTH AMENDMENT TO CREDIT AGREEMENT
SEVENTH AMENDMENT, dated as of March 31, 2004 (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 Section 6.2 of the Credit Agreement. As of the
Amendment Effective Date (as hereinafter defined), clause (a) of Section 6.2 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"(a) Borrower may hold investments comprised of (i) notes
payable, or stock or other securities issued by Account
Debtors to Borrower pursuant to negotiated agreements with
respect to settlement of such Account Debtor's Accounts in the
ordinary course of business, so long as the aggregate amount
of such Accounts so settled by Borrower does not exceed
$1,000,000, and (ii) (x) a note payable issued by Paradigm
dated as of March 31, 2004 in an original principal amount not
in excess of $1,500,000 pursuant to a negotiated settlement of
Paradigm's Accounts, and (y) a note payable issued by
Interactive dated as of March 31, 2004 in an original
principal amount not in excess of $5,200,000 pursuant to a
negotiated settlement of Interactive's Accounts;"
3. Amendment to Section 6.4 of the Credit Agreement. As of the
Amendment Effective Date (as hereinafter defined), clause (a) of Section 6.4 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"(a) No Credit Party shall enter into or be a party to any
transaction with any other Credit Party or any Affiliate
thereof except in the ordinary course of and pursuant to the
reasonable requirements of such Credit Party's business and
upon fair and reasonable terms that are no less favorable to
such Credit Party than would be obtained in a comparable arm's
length transaction with a Person not an Affiliate of such
Credit Party, (i) except as otherwise expressly permitted in
this Section 6 with respect to Credit Parties and their
Affiliates, and (ii) other than with respect to that certain
trade payable owing from Interactive to Borrower arising from
a credit taken by Toys "R" Us, Inc., provided, such trade
payable does not exceed $2,650,000. In addition, if any such
transaction or series of related transactions involves
payments in excess of $3,000,000 in the aggregate in any
Fiscal Year, the terms of these transactions must be disclosed
in advance to Agent and Lenders. All such transactions
existing as of the date hereof are described in Disclosure
Schedule (6.4(a))."
4. Amendment to Annex G of the Credit Agreement. As of the
Amendment Effective Date, Annex G of the Credit Agreement is amended by amending
and restating clauses (b), (c) and (e) in their entirety to read as follows:
"(b) Minimum Fixed Charge Coverage Ratio. Borrower and
Guarantors (which shall include Interactive and Paradigm
through and including September 30, 2003) shall have on a
combined basis at the end of each Fiscal Quarter beginning
with the Fiscal Quarter ending March 31, 2003, a Fixed Charge
Coverage Ratio for the 12-month period then ended of not less
than 1.5:1.00, provided, however, that there shall be no
minimum Fixed Charge Coverage Ratio requirement for the Fiscal
Quarters ending September 30, 2003, December 31, 2003, March
31, 2004 and June 30, 2004.
(c) Minimum EBITDA. Borrower and Guarantors (which shall
include Interactive and Paradigm through and including
September 30, 2003) on a combined basis shall have, at the end
of each Fiscal Quarter set forth below, EBITDA for the
12-month period then ended of not less than the following:
Period EBITDA
------ ------
Fiscal Quarter ending December 31,
2002 ($ 7,000,000)
Fiscal Quarter ending March 31, 2003 $20,000,000
Fiscal Quarter ending June 30, 2003 $20,000,000
Fiscal Quarter ending
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September 30, 2003 ($ 500,000)
Fiscal Quarter ending December 31,
2003 ($20,000,000)
Fiscal Quarter ending March 31, 2004 ($ 7,500,000)
Fiscal Quarter ending June 30, 2004 ($ 7,500,000)
for each Fiscal Quarter ending
thereafter $20,000,000
(e) Minimum Borrowing Availability. Borrower shall at all
times, other than during (i) the Matrix Release Period, (ii)
the period beginning on October 15, 2003 and ending on
December 15, 2003, and (iii) the period beginning on April 26,
2004 and ending on July 2, 2004, maintain Borrowing
Availability of no less than $5,000,000."
5. 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).
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(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) Exhibit 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, 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.
6. 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
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Amendment shall constitute an immediate Event of Default hereunder and under the
other Loan Documents.
7. Outstanding Indebtedness; Waiver of Claims. Each of
Borrower and the other Credit Parties hereby acknowledges and agrees that as of
March 30, 2004 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.
8. 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.
9. Amendment Fee. To induce Agent to enter into this
Amendment, Borrower hereby agrees to pay to Agent, for the benefit of Lenders,
an amendment fee in the amount of $200,000 in immediately payable funds, payable
on the Amendment Effective Date.
10. Pledge Amendment and Delivery of Notes. Borrower shall
deliver to Agent promptly (and in any event within five (5) Business Days) after
issuance of the notes payable issued by each of Paradigm and Interactive
permitted by Section 6.2(a) of the Credit Agreement, as amended hereby (the
"Affiliate Notes"), which shall be substantially in the form set forth in
Exhibit A hereto, a Pledge Amendment, duly executed by Borrower, in
substantially the form of Schedule II to the Pledge Agreement in respect of such
Affiliate Notes, pursuant to which Borrower shall pledge to Agent all of such
Affiliate Notes. Borrower shall promptly (and in any event within five (5)
Business Days of issuance of the Affiliate Notes) deliver the Affiliate Notes to
Agent together with duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to Agent.
11. 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 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
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shall continue without any diminution thereof and shall remain in full force and
effect on and after the date hereof.
12. Effectiveness. This Amendment shall become effective as of
March 31, 2004 (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
April 6, 2004:
(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) 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.
(d) Amendment Fee. Agent shall have received the
$200,000 Amendment Fee referred to in Section 9 hereof.
13. 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.
14. 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: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Executive Vice President
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: Xxxxx X. Xxxxx
Title: Director
EXHIBIT A
FORM OF AFFILIATE NOTES
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