EXHIBIT 10.1
AMENDMENT TO THE
NOTE AND WARRANT PURCHASE AGREEMENT AND
THE AMENDED AND RESTATED SECURITY AGREEMENT
This Amendment (the "Amendment"), dated as of January 30, 2003, to the
Note and Warrant Purchase Agreement, dated as of December 27, 2002 (the
"Agreement"), and the Amended and Restated Security Agreement, dated as of
December 27, 2002 (the "Security Agreement") by and among the same parties to
this Amendment, is entered into by and among The 3DO Company, a Delaware
corporation, (the "Company"), The 3DO Company, a California corporation
("Subsidiary") and Xxxxxxx X. Xxxxxxx, III (the "Purchaser"). The parties,
intending to be legally bound, hereby agree to amend the Agreement as follows:
1. Definitions. As used in this Amendment, all capitalized terms not
otherwise defined herein shall have the respective meanings given in the
Agreement.
2. Loan Commitment Amount. The Loan Commitment Amount set forth in
Section 2(a) of the Agreement shall be $12,000,000.
3. Subsequent Note. The term "Subsequent Note," defined in Section 2(f)
of the Agreement, shall hereafter mean a secured promissory note for a principal
amount equal to a Subsequent Draw Down Amount substantially in the form of
Exhibit E to the Agreement or substantially in the form of Exhibit A to this
Amendment. The parties acknowledge that upon execution of this Amendment,
Subsidiary shall issue a secured subordinated promissory note substantially in
the form attached hereto as Exhibit A in the principal amount of $4,000,000.
4. References in Transaction Documents. The parties acknowledge that
all references to the Agreement or the Security Agreement in the Transaction
Documents shall mean the Agreement or the Security Agreement as amended by this
Amendment.
5. Reimbursement of Expenses. Company shall pay on demand the following
fees and expenses (i) Purchaser's reasonable legal fees and expenses in
connection with the preparation, execution and delivery of this Amendment, the
Subsequent Note, and the Variable Rate Single Payment Note and related documents
with Comerica Bank - California ("Comerica") dated on or about January 28, 2003
(the "Comerica Agreements"), and (ii) other expenses of Purchaser or the Xxxxxxx
X. Xxxxxxx III Revocable Trust, dated March 10, 2000 in connection with the
Comerica Agreements. The parties acknowledge that terms of the Subsequent Note
in the form attached as Exhibit A are intended to pass through the cost of
interest to Purchaser under the Comerica Agreements and are not intended to be
reimbursed pursuant to this section, but reimbursable expenses may include
origination or loan fees payable to Comerica under the Comerica Agreements and
any other fees or expenses of Comerica payable under the Comerica Agreements
whether before or after an event of default thereunder.
6. Amended and Restated Security Agreement. The number "$8,000,000" in
recital C of the Security Agreement shall be "$12,000,000."
7. Other Provisions of Agreement. Except as amended in this Amendment,
all other provisions of the Agreement and other Transaction Documents shall
remain in full force and effect.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
COMPANY:
THE 3DO COMPANY
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Secretary
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SUBSIDIARY:
THE 3DO COMPANY
a California corporation
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Executive Vice President
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PURCHASER:
Xxxxxxx X. Xxxxxxx, III
/S/ Xxxxxxx X. Xxxxxxx, III
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EXHIBIT A
FORM OF SUBSEQUENT NOTE
