Exhibit 10.57b
SECOND AMENDMENT AND CONSENT TO
CREDIT AGREEMENT
SECOND AMENDMENT AND CONSENT, dated as of April 15, 2003 (this
"Amendment"), to the Credit Agreement referred to below among 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, Borrower and Agent have agreed to consent to certain
transactions described herein and to amend the Credit Agreement, 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. Amendment to the Credit Agreement. As of the Second Amendment
Effective Date, the Credit Agreement is hereby amended as follows:
(a) Annex A of the Credit Agreement is amended by adding the following
new definitions in order to read as follows:
""Matrix Release Period" shall mean the period beginning on the date
that Parent issues or causes to be issued a letter of credit in an amount
not less than $5,000,000 for the account of Parent to Sony to support the
release of Borrower's video game and related product based on the Matrix II
motion picture, and ending on the sixtieth day following the Second
Amendment Effective Date.
"Second Amendment Effective Date" shall have the meaning assigned to it
in that certain Second Amendment and Consent to Credit Agreement dated as
of April 15, 2003"
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(b) Annex G of the Credit Agreement is amended by amending and
restating clause (e) in its entirety to read as follows:
"(e) Minimum Borrowing Availability. Borrower shall at all times with
the exception of the Matrix Release Period maintain Borrowing Availability
of no less than $5,000,000."
3. Consent. As of the Second Amendment Effective Date, Agent and
Lenders hereby (i) consent to the creation of a wholly-owned Delaware subsidiary
of Borrower ("Newco") and the subsequent merger of Newco into Borrower, with
Borrower as the surviving entity (the "Borrower Merger"), and acknowledge that
such transactions shall not constitute a breach under either Section 6.1(a) or
Section 6.1(b) of the Credit Agreement; (ii) consent to, simultaneously with the
Borrower Merger the amendment of Borrower's Certificate of Incorporation to
change its name to "Atari, Inc." and acknowledge that such name change shall not
constitute a breach under either Section 6.15 (a) or Section 6.15 (b) of the
Credit Agreement, (iii) consent to the merger of Atari into Interactive, with
Interactive as the surviving entity, (the "Subsidiary Merger"), and acknowledge
that such transaction shall not constitute a breach under Section 6.1(a) of the
Credit Agreement, and (iv) consent to, simultaneously with the Subsidiary Merger
the change of Interactive's name to "Atari Interactive, Inc." and acknowledge
that such name change shall not constitute a breach under either Section 6.15
(a) or Section 6.15 (b) of the Credit Agreement, provided; that all mergers are
effective under Delaware law and Agent receives certified copies of all
documentation related to the Borrower Merger and the Subsidiary Merger,
certified as true, correct and complete by the Secretary or Assistant Secretary
of Borrower. Notwithstanding anything to the contrary set forth herein, the
foregoing consents are conditioned upon the completion of the Borrower Merger
and the Subsidiary Merger and all related transactions, in form and substance
satisfactory to Agent, no later than May 15, 2003.
4. Assignment of Collateral. Each Credit Party agrees to cause the
ownership of all Intellectual Property set forth on Disclosure Schedule 3.15 to
be reflected in the name of the correct owning Credit Party, including filing
any and all necessary assignment documentation with the Patent and Trademark
Office and the Library of Congress, on or before the thirtieth day following the
Borrower Merger or the Subsidiary Merger, as applicable. Each Credit Party
further agrees to provide copies of any documentation to Agent upon filing or
receipt thereof.
5. Further Assurances. Each Credit Party agrees, upon the written
request of Agent or any Lender, to execute and deliver to Agent, any additional
instruments or documents reasonably considered necessary by Agent to cause the
Loan Documents to become or remain valid and effective in accordance with their
terms, including any steps to maintain its perfected security interests in
Collateral.
6. Representations and Warranties. To induce Agent to enter into this
Amendment, each Credit Party hereby represents and warrants that:
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(a) The execution, delivery and performance by each Credit Party of
this Amendment and the performance of the Credit Agreement as amended by
this Amendment (the "Amended Credit Agreement"): (i) are within its
corporate powers; (ii) have been duly authorized by all necessary corporate
and shareholder action; and (iii) are not in contravention of any provision
of its certificate or articles of incorporation or by-laws or other
organizational documents.
(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).
(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 each Credit Party, threatened against any Credit Party, 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,
which challenges any Credit Party's 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.
(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 Second Amendment Effective Date
with the same effect as if such representations and warranties had been
made on and as of 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.
7. No Other Amendments. Except as expressly amended herein, the Credit
Agreement and the other Loan Documents shall be unmodified and shall continue to
be in full force and effect in accordance with their terms. In addition, except
as specifically provided herein, this Amendment shall not be deemed a waiver of
or consent with respect to any term or condition of any Loan Document and shall
not be deemed to prejudice any right or rights which Agent or any Lender may now
have or may have in the future under or in connection with any Loan Document or
any of the instruments or agreements referred to therein, as the same may be
amended from time to time. This
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Amendment constitutes a Loan Document for all purposes of the Credit Agreement
and the other Loan Documents.
8. Outstanding Indebtedness; Waiver of Claims. Each of Borrower and the
other Credit Parties hereby acknowledges and agrees that as of April 14, 2003
the aggregate outstanding principal amount of the Revolving Credit Loan is
$12,702,200.00 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
(each, a "Claim") 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 Second
Amendment Effective Date.
9. 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.
10. Effectiveness. This Amendment shall become effective as of April
15, 2003 (the "Second 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 15, 2003:
(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) Certified Merger Documents. Agent shall have received a copy of the
Borrower Merger and the Subsidiary Merger documents along with a
certificate of the Secretary or Assistant Secretary of Borrower certifying
the same as true, correct and complete.
(d) Amendment Fee. Borrower shall have paid to Agent an amendment fee
in the amount of one hundred fifty thousand dollars ($150,000).
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(e) Representations and Warranties. All representations and warranties
contained in this Amendment shall be true and correct on and as of the
Second Amendment Effective Date.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12. 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.
INFOGRAMES, INC.
By:
-------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:
-------------------------------
Name:
Its: Duly Authorized Signatory
[SIGNATURES CONTINUED ON NEXT PAGE]
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The undersigned Credit Parties hereby (i)
acknowledge, agree and consent to the
amendment to the Credit Agreement effected
by this Amendment 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 Amendment.
ACKNOWLEDGED, CONSENTED and AGREED to as of
the date first written above.
INFOGRAMES INTERACTIVE, INC.
By:
--------------------------
Name:
Title:
ATARI INTERACTIVE, INC.
By:
--------------------------
Name:
Title:
PARADIGM ENTERTAINMENT, INC.
By:
--------------------------
Name:
Title:
REFLECTIONS INTERACTIVE LIMITED
By:
--------------------------
Name:
Title:
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