Annual-Transition Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-KT Atari, Inc 83 631K
2: EX-10.28.T Fourteenth Amendment to the Credit Agreement 3 15K
3: EX-10.57.A First Amendment and Consent to Credit Agreement 8 28K
4: EX-10.57.B Second Amendment and Consent to Credit Agreement 7 24K
5: EX-10.57.C Third Amendment and Waiver to Credit Agreement 8 31K
6: EX-10.59 Description of Registrant's Executive Bonus Plan 1 6K
7: EX-23.2 Consent of Deloitte & Touche LLP 1 6K
8: EX-24.1 Power of Attorney 2± 12K
9: EX-99.1 Miscellaneous Exhibit 1 7K
10: EX-99.2 Miscellaneous Exhibit 1 7K
EX-10.57.A — First Amendment and Consent to Credit Agreement
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Exhibit 10.57a
FIRST AMENDMENT AND CONSENT TO
CREDIT AGREEMENT
FIRST AMENDMENT AND CONSENT, dated as of March 28, 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 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 the Credit Agreement. As of the Amendment Effective
Date, the Credit Agreement is hereby amended as follows:
(a) Annex A of the Credit Agreement is amended by amending and
restating the definition of "Fiscal Year" in its entirety to read as
follows:
""Fiscal Year" means (a) for each annual accounting period ending on or
prior to June 30, 2002, any of the accounting periods of Borrower ending on
June 30 of each year, and (b) commencing on (and including) March 31, 2003
and thereafter, any of the annual accounting periods of Borrower ending on
March 31 of each year."
(b) Section 6.14(f) is amended by changing "June 30, 2004" to "March
31, 2004".
(c) Annex E(c) of the Credit Agreement is amended by amending and
restating Annex E(c) in its entirety to read as follows:
"(c) Operating Plan. To Agent and Lenders, as soon as available, but not
later than 75 days after the end of the Fiscal Year ended March 31, 2003
and not later than 45 days after the end of each Fiscal Year thereafter an
annual operating plan for Borrower and each Guarantor on a combined and
combining basis, reviewed by the Boards of Directors of Borrower and
Parent, (or approved by the Boards of Directors of Borrower and Parent, if
such approval was given) for the following Fiscal Year, which (i) includes
a statement of all of the material assumptions on which such plan is based,
(ii) includes monthly balance sheets (including allowances) and a monthly
budget for the following year and (iii) integrates sales, gross profits,
operating expenses, operating profit, cash flow projections and Borrowing
Availability projections, all prepared on the same basis and in similar
detail as that on which operating results are reported (and in the case of
cash flow projections, representing management's good faith estimates of
future financial performance based on historical performance), and
including plans for personnel, Capital Expenditures and facilities."
3. Consent. Requisite Lenders hereby consent, as of the Amendment
Effective Date, to the following:
(a) The change in Borrower's Fiscal Year end to March 31 of each year
from June 30 of each year commencing with the fiscal year ended March 31,
2003, and acknowledges and agrees that such change in Borrower's Fiscal
Year shall not constitute a breach under Section 6.15 of the Credit
Agreement.
(b) The transfer by Infogrames Interactive, Inc. ("Interactive") of all
of its interest in and to the shares of stock of, and receivables payable
to Interactive by, each of the following Excluded Credit Parties: Spectrum
Holobyte Japan KK, Hartland Trefoil Ltd. (UK), Microprose Ltd (UK),
Microprose Software Ltd (UK), Infogrames Interactive Asia Pacific Pty Ltd
(Australia) and Infogrames Interactive GmbH (Germany) (collectively, the
"Specified Excluded Credit Parties") to the Parent, in a form of dividends,
as more fully described in Annex I hereto (the "Excluded Credit Parties
Transfer"); provided that (i) as soon as practicable following such
transfer each of the Specified Excluded Credit Parties shall be dissolved,
(ii) none of the Credit Parties shall have any liability or obligation to
make any payments to any Person in respect of any receivables or payments
due from related parties of any Specified Excluded Credit Party as
reflected on the balance sheets attached hereto on Annex II, and (iii)
neither the Parent nor any Subsidiary thereof shall receive any payments in
respect of any receivables or payments due from related parties of any
Specified Excluded Credit Party as reflected on the balance sheets attached
hereto on Annex II nor shall Parent or any Subsidiary thereof in any way
benefit from any such payments. Subject to compliance with clauses (i),
(ii) and (iii) of the proviso to the immediately preceding sentence, the
Excluded Credit Parties Transfer shall not constitute a breach under
Section 6.8 or Section 6.14 of the Credit Agreement.
4. 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 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.
(g) Annex I hereto accurately describes the Excluded Credit Parties
Transfer . None of the Specified Excluded Credit Parties (i) conducts any
business or operations, (ii) owns any assets or properties except as
reflected on the balance sheets attached hereto on Annex II, or (iii) owns
or has rights to use any Intellectual Property (excluding any such rights
which in the aggregate for all Specified Excluded Credit Parties has a fair
market value of less than $50,000) or is a party to any contract relating
to the development of any Intellectual Property. The balance sheets for
each Specified Excluded Credit Party attached hereto as
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Annex II present in all material respects the financial position of such
Specified Excluded Credit Party as of June 30, 2002 and there has been no
material change in such financial position since June 30, 2002 (except for
the reduction of cash of Infogrames Interactive Asia Pacific Pty Ltd
(Australia) and Infogrames Interactive GmbH (Germany) as of November 30,
2002.
(h) None of the Credit Parties have as of the Amendment Effective Date,
nor shall any of the Credit Parties have in the future, any liability or
obligation to make any payments to any Person in respect of any receivables
or payments due from related parties of any Specified Excluded Credit Party
as reflected on the balance sheets attached hereto on Annex II. Neither the
Parent nor any Subsidiary thereof shall receive any payments in respect of
any receivables or payments due from related parties of any Specified
Excluded Credit Party as reflected on the balance sheets attached hereto on
Annex II nor shall Parent or any Subsidiary thereof in any way benefit from
any such payments.
5. 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 Amendment constitutes a Loan Document for all
purposes of the Credit Agreement and the other Loan Documents.
6. Outstanding Indebtedness; Waiver of Claims. Each of Borrower and the
other Credit Parties hereby acknowledges and agrees that as of March 27, 2003
the aggregate outstanding principal amount of the Revolving Credit Loan is
$6,677,700 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
Amendment Effective Date.
7. 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
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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.
8. Effectiveness. This Amendment shall become effective as of March __,
2003 (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 March
__, 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) Board Resolutions. Agent shall have received a certificate of the
Secretary or Assistant Secretary of Borrower certifying as to the
resolutions adopted by the Board of Directors of Borrower approving this
amendment.
(d) Representations and Warranties. All representations and warranties
contained in this Amendment shall be true and correct on and as of the
Amendment Effective Date.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10. 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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Annex I
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Infogrames Interactive, Inc. ("Interactive"), a wholly-owned subsidiary of
Infogrames Entertainment S.A. ("IESA"), is the sole shareholder of the following
Specified Excluded Credit Parties:
o Spectrum Holobyte Japan KK
o Hartland Trefoil Ltd.
o Microprose Ltd.
o Microprose Software Ltd.
o Infogrames Interactive Asia Pacific Pty Ltd.
o Infogrames Interactive GmbH
Interactive will transfer all of its interest in and to the shares of stock of
and receivables payable by each of the Specified Excluded Credit Parties to
IESA, its sole shareholder, in a form of dividends. Such declaration of
dividends has been duly approved by the board of directors of Interactive.
Subsequent to the completion of the transfer of stock of and receivables payable
by the Specified Excluded Credit Parties and as soon as practicable, each of the
Specified Excluded Credit Parties will be dissolved in accordance with the laws
of its respective country of formation.
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Dates Referenced Herein and Documents Incorporated by Reference
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