Exhibit 10.28t
FOURTEENTH AMENDMENT
THIS FOURTEENTH AMENDMENT (this "Amendment") is made and entered into
as of December 31, 2002 (the "Effective Date"), by and among Atari, Inc.
(formerly known as Infogrames, Inc.), a Delaware corporation (the "Borrower"),
and Infogrames Entertainment S.A., a French corporation (the "Lender").
Capitalized terms used herein and not otherwise defined shall have their
respective meanings set forth in the IESA Credit Agreement (as defined below).
Statement of Purpose
WHEREAS, the Borrower is a party to the Credit Agreement dated as of
September 11, 1998 (as heretofore amended, restated, supplemented or otherwise
modified, the "IESA Credit Agreement"), by and between the Borrower and the
Lender, as administrative agent (the "Administrative Agent") and as sole lender.
WHEREAS, on November 12, 2002, the Borrower entered into the Credit
Agreement (the "GECC Credit Agreement") with General Electric Capital
Corporation ("GECC"), as administrative agent and lender, and certain other
parties thereto, and GECC extended a $50 million senior credit facility to the
Borrower for a term of thirty months. Simultaneously with the execution of the
GECC Credit Agreement, the Borrower, the Lender and GECC executed the
Subordination and Intercreditor Agreement (the "Subordination Agreement"),
whereby all loans made under the IESA Credit Agreement will be subordinated to,
and extended until the termination of, the GECC Credit Agreement.
WHEREAS, the Lender acknowledges that, during the term of the GECC
Credit Agreement, payments which the Borrower can make to the Lender are
restricted under the Subordination Agreement.
WHEREAS, for avoidance of any doubt, the Borrower has requested the
Lender to explicit waive certain covenants contained in the IESA Credit
Agreement until April 1, 2004 as set forth more fully below and subject to the
terms and conditions hereof and the Lender is willing to agree to such requested
waivers.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENT.
1.1. Amendment to Section 2.6 (Termination of Credit Facility). Section
2.6 of the IESA Credit Agreement is hereby amended by deleting the reference to
"December 31, 2002" contained in said Section and by substituting therefore a
reference to "April 1, 2004."
SECTION 2. WAIVERS.
2.1. Waiver of Article VII (Financial Information and Notices).
Effective as of the Effective Date, the Lender and the Administrative Agent
hereby waive any Default or Event of Default that may arise by reason of the
failure of the Borrower to comply with Sections 7.1(d), 7.1(e), 7.1(f) and
7.2(b) of the IESA Credit Agreement for the period from the Effective Date until
April 1, 2004.
2.2. Waiver of Section 9.1 (EBITDA). Effective as of the Effective
Date, the Lender hereby waives any Default or Event of Default that may arise by
reason of the failure of the Borrower to comply with Section 9.1 of the IESA
Credit Agreement for the period through April 1, 2004.
2.3. Waiver of Section 9.2 (Capital Expenditure). Effective as of the
Effective Date, the Lender hereby waives any Default or Event of Default that
may arise by reason of the failure of the Borrower to comply with Section 9.2 of
the IESA Credit Agreement for the period through April 1, 2004.
2.4. Waiver of Section 10.9 (Certain Accounting Changes). Effective as
of the Effective Date, the Lender hereby waives any Default or Event of Default
that may arise by reason of the failure of the Borrower to comply with Section
10.9 of the IESA Credit Agreement for the period through April 1, 2004.
SECTION 3. MISCELLANEOUS.
3.1. Representations and Warranties; No Default. (a) After giving
effect to this Amendment, the Borrower hereby represents and warrants that (i)
all representations and warranties contained in the IESA Credit Agreement and
the other Loan Documents are true and correct on and as of the Effective Date
(unless stated to relate to a specific earlier date, in which case, such
representations and warranties shall be true and correct as of such earlier
date) and (ii) no Default of Event of Default shall have occurred and be
continuing or would result from the execution and delivery of this Amendment.
(b) The Borrower hereby further represents and warrants that it is
truly and justly indebted to the Administrative Agent and the Lender in respect
of the Obligations, without defense, counterclaim or offset of any kind.
3.2. Continuing Effect; No Other Amendments or Waivers. Except as
expressly amended pursuant to this Amendment, and as further amended by the
Subordination Agreement, the IESA Credit Agreement is and shall continue to be
in full force and effect in accordance with its terms, and this Amendment shall
not constitute the Lender's consent or indicate their willingness to consent to
any other amendment, modification or waiver of the IESA Credit Agreement or the
other Loan Documents, including, without limitation, any amendment, modification
or waiver of any Section amended or waived pursuant to this Amendment for any
other date or time period or in connection with any other transaction.
3.3. Integration. This Amendment represents the agreement of the
Borrower, the Administrative Agent and the Lender with respect to the subject
matter hereof, and there are no promises, undertaking, representations or
warranties by the Borrower, the Administrative Agent and the Lender relative to
the subject matter hereof not expressly set forth or referred to herein, or in
the IESA Credit Agreement, as amended through the date hereof.
3.4. Counterparts. This Amendment may be executed by the parties hereto
on one or more counterparts, and all of such counterparts shall be deemed to
constitute one and the same instrument. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
3.5. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE PRINCIPLES REGARDING CONFLICT LAW.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their representative duly authorized officers as of
the date first above written.
ATARI, INC.
By:
----------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
INFOGRAMES ENTERTAINMENT S.A.,
as Administrative Agent and Lender
By:
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman and Chief
Executive Officer
3
