EXHIBIT 10.3
SEVENTH AMENDMENT
THIS SEVENTH AMENDMENT (this "Amendment") dated as of February 6, 2002,
to the Credit Agreement referenced below, is by and among Take-Two Interactive
Software, Inc., a Delaware corporation (the "Borrower"), certain Subsidiaries of
the Borrower identified as "Guarantors" on the signature pages hereto, the
Lenders identified herein and Bank of America, N.A., as Administrative Agent (in
such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, a $75 million credit facility has been extended to the Borrower
pursuant to the Credit Agreement (as amended, modified and supplemented, the
"Credit Agreement") dated as of December 7, 1999 among the Borrower, the
Guarantors identified therein, the Lenders identified therein and Bank of
America, N.A., as Administrative Agent;
WHEREAS, the Borrower has requested certain modifications to the Credit
Agreement; and
WHEREAS, the Required Lenders have agreed to the requested modifications
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Terms used herein but not otherwise defined herein
shall have the meanings provided to such terms in the Credit Agreement.
2. Amendments. The Credit Agreement is amended in the following
respects:
2.1 The definition of "Aggregate Revolving Committed Amount" in Section
1.1 of the Credit Agreement is amended to read as follows:
"Aggregate Revolving Committed Amount" means, at any time, FIFTY
MILLION DOLLARS ($50,000,000), as such amount may be reduced from time
to time in accordance with the provisions hereof.
2.2 The definition of "North American Borrowing Base" in Section 1.1 of
the Credit Agreement is amended to read as follows:
"North American Borrowing Base" means the sum of:
(a) the sum of seventy percent (70%) of U.S. Eligible Receivables plus
twenty-five percent (25%) of U.S. Eligible Inventory, plus
(b) the lesser of (A) $5,000,000 and (B) the sum of (x) seventy percent
(70%) of Canadian Eligible Receivables plus (y) twenty-five percent
(25%) of Canadian Eligible Inventory;
in each case as set forth in the most recent of North American
Borrowing Base Certificate delivered to the Administrative Agent and
the Lenders in accordance with the terms of Section 7.1(d);
provided, however, that (i) the North America Borrowing Base shall not
exceed $15,000,000 at any time during the period commencing on the
effective date of the Seventh Amendment to the Credit Agreement and
ending on the date six (6) Business Days after the Borrower (A)
delivers to the Administrative Agent and the Lenders the officer's
certificate required under Section 7.1(c) for the fiscal year ended
October 31, 2001 and (B) the Borrower files its annual financial
statements for the fiscal year ended October 31, 2001 on Form 10K with
the Securities and Exchange Commission (such ending date the "First End
Date"), (ii) the North America Borrowing Base shall not exceed
$22,500,000 at any time during the period commencing on the First End
Date and ending on ▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇▇) the North America Borrowing
Base shall not exceed $30,000,000 at any time during the period
commencing on March 1, 2002 and ending on the date sixty (60) days
after the effective date of the Seventh Amendment to the Credit
Agreement, and (iv) the sum of (a) twenty-five percent (25%) of U.S.
Eligible Inventory plus (b) twenty-five percent (25%) of Canadian
Eligible Inventory shall not at any time comprise more than an amount
equal to thirty percent (30%) of the North American Borrowing Base.
2.3 Effective December 7, 1999, the "North American Borrowing Base" in
Section 1.1 of the Credit Agreement is retroactively amended for any day prior
to the date hereof to increase the amount of the "North American Borrowing Base"
in effect on such day by $5 million. The amendments set forth in this Section
2.3 are intended to retroactively amend the definition of "North American
Borrowing Base" solely for any day prior to the date hereof and solely as
expressly set forth herein. The amendments set forth in this Section 2.3 do not
affect the North American Borrowing Base for any day from and after the date
hereof and in any other manner except as expressly provided herein.
2.4 Effective as of April 30, 2000, the definition of "Consolidated
EBITDA" in Section 1.1 of the Credit Agreement is amended by the addition of the
following sentence at the end of such definition:
Notwithstanding anything herein to the contrary, for the applicable
period ended April 30, 2000 and the applicable period ended October 31,
2000, "Consolidated EBITDA" shall be calculated without giving effect
to a one-time charge to earnings of up to $20 million relating to the
write-off of goodwill as an equity loss in an affiliate in connection
with the acquisition of Gathering of Developers, Inc.
2.5 Effective as of October 31, 2001, Section 7.11 of the Credit
Agreement is amended to read as follows:
(a) Consolidated Net Worth. As of the end of each fiscal quarter,
Consolidated Net Worth shall be not less than the sum of $67.1 million,
plus on the last day of each fiscal quarter to end after the Closing
Date, an amount equal to seventy-five percent (75%) of Consolidated Net
Income for the fiscal quarter then ending (but not less than zero),
such increases to be cumulative, plus an amount equal to one hundred
percent (100%) of the net proceeds received from any Equity
Transactions occurring after the Closing Date.
(b) Consolidated Leverage Ratio. As of the end of each fiscal
quarter set forth below, the Consolidated Leverage Ratio shall not be
greater than the ratio set forth below opposite such fiscal quarter:
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Maximum Consolidated
Quarter End Leverage Ratio
----------------------------- ----------------------------
October 31, 2001 4.70:1.00
----------------------------- ----------------------------
January 31, 2002 and each
fiscal quarter end thereafter 4.00:1.00
----------------------------- ----------------------------
(c) Consolidated Fixed Charge Coverage Ratio. As of the end of each
fiscal quarter set forth below, the Consolidated Fixed Charge Coverage
Ratio shall not be less than the ratio set forth below opposite such
fiscal quarter:
----------------------------- ----------------------------
Minimum Consolidated
Quarter End Fixed Charge Coverage Ratio
----------------------------- ----------------------------
October 31, 2001 0.50:1.00
----------------------------- ----------------------------
January 31, 2002 and each
fiscal quarter end thereafter 2.00:1.00
----------------------------- ----------------------------
(d) Consolidated Senior Leverage Ratio. As of the end of each fiscal
quarter set forth below, the Consolidated Senior Leverage Ratio shall
not be greater than the ratio set forth below opposite such fiscal
quarter:
----------------------------- ----------------------------
Maximum Consolidated
Quarter End Senior Leverage Ratio
----------------------------- ----------------------------
October 31, 2001 4.70:1.00
----------------------------- ----------------------------
January 31, 2002 and each
fiscal quarter end thereafter 3.00:1.00
----------------------------- ----------------------------
3. Certification as to Compliance with Financial Covenants. The
Borrower hereby represents and warrants that, after giving effect to this
Amendment, the Borrower was in compliance with each of the financial covenants
set forth in Section 7.11 as of the end of each fiscal quarter ended during the
period from the Closing Date to the date hereof.
4. Covenant to Deliver Financial Information. The Borrower covenants
and agrees that to furnish to the Administrative Agent and each Lender the
following (the financial statements described in clauses (a) through (f) below
are, collectively, the "Financial Statements"):
(a) on or before February 15, 2002, the annual financial statements
required under Section 7.1(a) for the fiscal year ended October 31,
2001 (and the auditor's opinion accompanying such financial statements
shall meet the requirements set forth in Section 7.1(a) (including,
without limitation, that such opinion shall not be limited as to the
scope of the audit or qualified as to the status of the members of the
Consolidated Group as a going concern or any other material
qualifications or exceptions));
(b) on or before February 22, 2002, the monthly financial statements
required under Section 7.1(b-1) for the calendar months ended October
31, 2001, November 30, 2001 and December 31, 2001;
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(c) on or before February 15, 2002, the officer's certificate
required under Section 7.1(c) for the fiscal year ended October 31,
2001;
(d) on or before February 15, 2002, the North America Borrowing Base
Certificates required under Section 7.1(d) for the period ended January
31, 2002;
(e) on or before February 22, 2002, the North America Borrowing Base
Certificates required under Section 7.1(d) for the periods ended
November 30, 2001 and December 31, 2001;
(f) on or before February 22, 2002, the officer's certificate
required under Section 7.1(c) for the fiscal periods ended April 30,
2000 and October 31, 2000, in each case demonstrating compliance with
the financial covenants as of the end of such fiscal period after
giving effect to this Amendment;
(g) on or before March 1, 2002, the annual business plan and budget
required under Section 7.1(f) for the fiscal year ending October 31,
2002; and
(h) the "management letter" submitted by the Borrower's independent
accountants in connection with the annual audit of the books of the
Consolidated Group for the fiscal year ended October 31, 2001 within
three (3) Business Days of receipt of such management letter by the
Borrower.
Each of Section 7.1(a), Section 7.1(b-1), Section 7.1(c) and Section
7.1(d) and Section 7.1(f) are hereby amended solely with respect to the
Financial Statements to require that the Financial Statements shall be delivered
by the date set forth above. With respect to each of the Financial Statements,
effective as of the date such Financial Statement is required to be delivered
under the Credit Agreement (as in effect immediately prior to this Amendment),
the date of delivery thereof is amended to be the date set forth above with
respect to such Financial Statement. The failure by the Borrower to deliver any
of the Financial Statements prior to the date set forth above shall not
constitute an Event of Default, provided that the failure by the Borrower to
provide any of the Financial Statements by the date set forth above shall
constitute an immediate Event of Default.
In addition, effective January 31, 2000, Section 7.1(c) is amended to
waive the requirement that the Borrower deliver the North American Borrowing
Base Certificates for the following dates: January 31, 2000, February 29, 2000,
February 28, 2001, May 31, 2001, November 15, 2001, December 15, 2001 and
January 15, 2002. The failure by the Borrower to deliver the North America
Borrowing Base Certificate for such dates shall not constitute an Event of
Default.
The amendments set forth in this Section 4 shall not apply to any
financial statements other than the Financial Statements and the North American
Borrowing Base Certificates expressly described above and shall not affect the
Borrower's obligation to deliver any other financial statements.
5. Covenant to File 10K. The Borrower covenants and agrees that on or
before February 13, 2002 the Borrower will file its annual financial statements
for the fiscal year ended October 31, 2001 on Form 10K with the Securities and
Exchange Commission. Effective as of January 29, 2002, the Required Lenders
hereby agree that the failure to file such annual financial statements prior to
February 13, 2002 shall not constitute an Event of Default provided that the
failure by the Borrower to file such annual financial statements by February 13,
2002 shall constitute an immediate Event of Default.
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6. Covenant to Assist in Communications with Auditors. The Borrower
acknowledges and agrees that the Administrative Agent and the Lenders may
communicate directly with the independent accounting firm engaged by the
Borrower to audit its financial statements for the fiscal year ended October 31,
2001 regarding the financial statements of the Borrower for the fiscal year
ended October 31, 2001 and any prior period and the transactions contained
therein. The Borrower acknowledges and agrees that the Administrative Agent and
the Lenders may ask questions regarding such financial statements and
transactions. The Borrower covenants and agrees to use its reasonable best
efforts to cause such accounting firm to communicate directly with the
Administrative Agent and the Lenders regarding such financial statements and
transactions (including, without limitation, answer the questions of the
Administrative Agent and the Lenders).
7. Covenant to Provide Additional Items. The Borrower covenants and
agrees that on or before March 1, 2002 the Borrower shall deliver to the
Administrative Agent the following items:
(a) the stock certificate(s) evidencing the shares of capital stock
of T2 Developer, Inc., together with undated stock power(s) executed in
blank;
(b) trademark and copyright filings reasonably deemed necessary by
the Administrative Agent to perfect its security interest in Trademarks
and Copyrights granted under the Security Agreement;
(c) evidence that the security interest filings described on
Schedule A hereto have been terminated; and
(d) an officer's certificate in substantially the form of Schedule
5.1(g)(v) to the Credit Agreement for each of T2 Developer, Inc.,
Poptop Software, Inc., VLM Entertainment Group, Inc., Gathering of
Developers, Inc. and Rockstar Games, Inc.), in each case with the
appropriate insertions and attachments.
8. Conditions Precedent. This Amendment shall be effective as of the
date hereof upon satisfaction of the following conditions precedent:
(a) receipt by the Administrative Agent of multiple counterparts of
this Amendment executed by the Credit Parties and the Required Lenders;
(b) receipt by the Administrative Agent, for the ratable benefit of
the Lenders that execute and deliver this Amendment on or before
February 6, 2002 (the "Approving Lenders"), of an amendment fee of 25
basis points (0.25%) on the aggregate Revolving Commitments (as in
effect immediately prior to this Amendment) of the Approving Lenders;
(c) receipt by the Administrative Agent, for its own account and not
for sharing with the Lenders, of the arrangement fee set forth in the
fee letter entered into in connection with this Amendment by the
Administrative Agent and the Borrower (the "Amendment Fee Letter");
(d) receipt by the Administrative Agent of its field exam expenses in
the amount set forth in the Amendment Fee Letter;
(e) receipt by the Administrative Agent, for its own account and not
for sharing with the Lenders, of the administrative fee of $25,000
owing under the Administrative Agent's Fee Letter;
(f) receipt by ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, counsel to the Administrative
Agent, of the unpaid fees and expenses in the amount set forth in the
Amendment Fee Letter and all other fees and expenses incurred in
connection with this Amendment (that are not reflected in the Amendment
Fee Letter); and
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(g) receipt by the Administrative Agent of an officer's certificate
regarding the representations and warranties set forth in Section 6 of
the Credit Agreement in form and substance satisfactory to the
Administrative Agent.
9. Representations and Warranties. The Credit Parties hereby affirm
that, after giving effect to this Amendment, the representations and warranties
set forth in the Credit Agreement and the other Credit Documents are true and
correct in all material respects as of the date hereof (except those which
expressly relate to an earlier period).
10. Reaffirmation of Guaranty. Each of the Guarantors (i) acknowledges
and consents to all of the terms and conditions of this Amendment, (ii) affirms
all of its obligations under the Credit Documents and (iii) agrees that this
Amendment and all documents executed in connection herewith do not operate to
reduce or discharge such Guarantor's obligations under the Credit Agreement or
the other Credit Documents.
11. Reaffirmation by Mission Studios Corporation. Mission Studios
Corporation, an Illinois corporation and a Wholly Owned Subsidiary of the
Borrower, executed the Credit Agreement, each of the other Credit Documents and
each amendment to the Credit Agreement under the name Mission Studios, Inc. By
execution hereof, Mission Studios Corporation affirms, agrees and ratifies all
of its obligations under the Credit Agreement and the other Credit Documents
including, without limitation, (i) its guaranty obligations set forth in Section
4 of the Credit Agreement and (ii) its grant of a security interest in all of
its Collateral (as defined in the Security Agreement) pursuant to the terms of
the Security Agreement.
12. No Other Modifications. Except as modified hereby, all of the terms
and provisions of the Credit Agreement and the other Credit Documents (including
schedules and exhibits thereto) shall remain in full force and effect.
13. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
14. Governing Law. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with the laws of,
the State of North Carolina.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Third Amendment to be duly executed and delivered as of the date first
above written.
BORROWER: TAKE-TWO INTERACTIVE SOFTWARE, INC.,
a Delaware Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
GUARANTORS: GEARHEAD ENTERTAINMENT, INC.,
a Pennsylvania corporation
MISSION STUDIOS CORPORATION,
an Illinois corporation
INVENTORY MANAGEMENT SYSTEMS, INC.,
a Delaware corporation
▇▇▇▇ OF ALL GAMES, INC.,
a New York corporation
TALONSOFT, INC.,
a Delaware Corporation
VLM ENTERTAINMENT GROUP, INC.,
a Delaware corporation
ROCKSTAR GAMES, INC.,
a Delaware corporation
POPTOP SOFTWARE, INC.,
a Missouri corporation
GATHERING OF DEVELOPERS, INC.,
a Texas corporation
T2 DEVELOPER, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President of each
Guarantor
[Signature Pages Continue]
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
and individually in its capacity as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
COMERICA BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE PROVIDENT BANK
By:
--------------------------------
Name:
Title:
SUMMIT BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
