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EXHIBIT 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT, DATED AS OF OCTOBER 15,1996
This Amendment No. 1 (this "Amendment"), dated as of November 1,
1998, is made by and between MIDWAY GAMES INC., a Delaware corporation (the
"Company"), and Bank of America National Trust and Savings Association (as
successor by merger to Bank of America Illinois)(in such capacity, the
"Lender"). Terms defined in the Credit Agreement shall have the same respective
meanings when used herein and the provisions of Section 1.1 of the Credit
Agreement shall apply, mutatis mutandis, to this Amendment.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit
Agreement, dated as of October 15, 1996, (as amended or modified and in effect
on the date hereof, the "Existing Credit Agreement" and as amended and modified
by this Amendment, the "Credit Agreement");
WHEREAS, the Company has requested that the Lender agree to amend
and modify the Existing Credit Agreement as described herein; and
WHEREAS, the Lender is willing to amend and modify the Existing
Credit Agreement on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein contained and other good and valuable consideration (the
receipt, adequacy and sufficiency of which is hereby acknowledged), the parties
hereto, intending legally to be bound, hereby agree as follows:
1. Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 5 below, the Existing Credit Agreement is hereby
amended as follows:
(a) Section 1.1 of the Existing Credit Agreement shall
be amended by deleting the definition of Termination Date contained
therein and replacing it with the following:
""Termination Date" means the earlier of the
date on which the Lender makes demand on the Borrower
for repayment of all amounts due hereunder, or October
31, 1999."
(b) Section 2.18 of the Existing Credit Agreement shall
be deleted in its entirety and replaced with the following:
"SECTION 2.18 Clean-Up/Clean-Down
Provisions. Notwithstanding any other provision
contained in this Agreement to the contrary, the
Borrower agrees that from March 31 of each Fiscal Year
during the term of this Agreement, commencing March 31,
1997, and for a period of sixty (60) consecutive days
thereafter the outstanding Revolving Loans shall be zero
(0) and the amount of the outstanding Letters of Credit
issued in respect of the Uncommitted Revolving Credit
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shall be less than or equal to $25,000,000. The Borrower
agrees to make any prepayment of the Revolving Loans or
the Uncommitted Revolving Credit which may be necessary
to comply with the terms of this Section 2.18."
(c) Section 5.8 of the Existing Credit Agreement shall
be amended by deleting clause (1) thereto in its entirety and
replacing it with the following:
"(1) Quarterly Financial Statements. As soon
as available and in any event within forty-five (45)
days after the end of each Fiscal Quarter, consolidated
and consolidating balance sheets of the Borrower and its
Subsidiaries as at the end of such Fiscal Quarter,
consolidated and consolidating statements of operations
of the Borrower and the Subsidiaries for the period
commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, and
consolidated statements of cash flows of the Borrower
and the Subsidiaries for the portion of the Fiscal Year
ended with the last day of such Fiscal Quarter, all in
reasonable detail and stating in comparative form the
respective consolidated figures for the corresponding
date and period in the previous Fiscal Year;"
(d) Section 7.2 of the Existing Credit Agreement shall
be deleted in its entirety and replaced with the following:
"SECTION 7.2 [RESERVED]"
(e) Section 7.5 of the Existing Credit Agreement shall
be deleted in its entirety and replaced with the following:
"SECTION 7.5 [RESERVED]"
2. Documents Remain in Effect. Except as amended and modified by
this Amendment, the Existing Credit Agreement remains in full force and effect
and the Company confirms that its representations, warranties, agreements and
covenants contained in, and obligations and liabilities under, the Credit
Agreement and each of the other Loan Documents are true and correct in all
material respects as if made on the date hereof, except where such
representation, warranty, agreement or covenant speaks as of a specified date.
3. References in Other Documents. References to the Existing Credit
Agreement in any other document shall be deemed to include a reference to the
Credit Agreement; whether or not reference is made to this Amendment.
4. Representations. The Company hereby represents and warrants to
the Lender that:
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(a) The execution, delivery and performance of this
Amendment is within the Company's corporate authority, have been
duly authorized by all necessary corporate action, has received all
necessary consents and approvals (if any shall be required), and do
not and will not contravene or conflict with any provision of law or
of the Certificate of Incorporation or By-laws of the Company or its
Subsidiaries, or of any other agreement binding upon the Company or
its Subsidiaries or their respective property;
(b) This Amendment constitutes the legal, valid, and
binding obligation of the Company, enforceable against the Company
in accordance with its terms; and
(c) no Default has occurred and is continuing or will
result from this Amendment and no Default now exists under the
Existing Credit Agreement.
5. Conditions Precedent. The effectiveness of this Amendment is
subject to the receipt by the Lender of each of the following, each
appropriately completed and duly executed as required and otherwise in form and
substance satisfactory to the Agent:
(a) Certified copies of resolutions of the Board of
Directors of the Company authorizing or ratifying the execution,
delivery and performance by the Company of this Amendment;
(b) A certificate of the President or a Vice-President
of the Company that all necessary consents or approvals with respect
to this Amendment have been obtained;
(c) A certificate of the Secretary or Assistant
Secretary of the Company, certifying the name(s) of the officer(s)
of the Company authorized to sign this Amendment, and the documents
related hereto on behalf of the Company; and
(d) Such other instruments, agreements and documents as
the Agent may reasonably request, in each case duly executed as
required and otherwise in form and substance satisfactory to the
Lender.
6. Miscellaneous.
(a) Section headings used in this Amendment are for
convenience of reference only, and shall not affect the construction
of this Amendment.
(b) This Amendment and any amendment hereof or
supplement hereto may be executed in any number of counterparts and
by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
agreement.
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(c) This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois, without
giving effect to principles of conflicts of laws.
(d) All obligations of the Company and rights of the
Lender, that are expressed herein, shall be in addition to and not
in limitation to those provided by applicable law.
(e) Whenever possible, each provision of this Amendment
shall be interpreted in such manner as to be effective and valid
under applicable law; but if any provision of this Amendment shall
be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Amendment.
(f) This Amendment shall be binding upon the Company,
the Lender and their respective successors and assigns, and shall
inure to the benefit of the Company, the Lender and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused the execution and
delivery hereof by their respective representatives thereunto duly authorized as
of the date first herein appearing.
MIDWAY GAMES INC.
By: /s/ XXXXXX X. XXXX XX.
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Name: Xxxxxx X. Xxxx Xx.
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Title: Executive VP Finance
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (as successor by merger
to Bank of America Illinois)
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
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Title: Senior Vice President
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