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OMB
APPROVAL
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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OMB
Number: 3235-0060
Expires:
April 30, 2009
Estimated
average burden hours per response...........5.0
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FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of The Securities Exchange Act of
1934
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Date
of Report (Date of earliest event reported): February
7, 2008
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Take-Two
Interactive Software, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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0-29230
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51-0350842
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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622
Broadway, New York, New York 10012
(Address
of principal executive offices) (Zip
Code)
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(646)
536-2842
Registrant’s
telephone number, including area code
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(Former
name or former address, if changed since last report.)
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Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant
to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
Amendment
of Credit Agreement.
As
previously disclosed in the Company’s Report on Form 8-K filed on November 20,
2007, the Company entered into an Amended and Restated Credit Agreement dated
November 16, 2007 (the “Credit Agreement”) with Wells Fargo Foothill, Inc., as
arranger and administrative agent, and lenders party thereto from time to time.
On
February 7, 2008, in connection with the syndication of the Credit Agreement,
the Company entered into a First Amendment to the Amended and Restated Credit
Agreement (the “First Amendment”). Pursuant to the First Amendment, the credit
facility now bears interest at a margin of (a) 2.00% to 2.50% above a
certain base rate, or (b) 3.25% to 3.75% above the LIBOR Rate, which margins
are
subject to the achievement of certain levels of a 30-day average liquidity
amount by the Company and its subsidiaries, as reported pursuant to the delivery
of periodic compliance certificates.
Except
as expressly provided in the First Amendment, the Credit Agreement
remains in full force and effect.
The
description of the First Amendment set forth above is qualified in
its entirety by reference to the actual terms of the First Amendment, which
is
attached hereto as Exhibit 10.1.
Item
2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The
information included in Item 1.01 above related to the First Amendment is
incorporated by reference into this Item 2.03.
Item
9.01. Financial Statements and Exhibits
(d) Exhibits.
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10.1
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First
Amendment to the Amended and Restated Credit Agreement, dated as
of
February 7, 2008, by and between Take-Two Interactive Software,
Inc. and
each of its Subsidiaries identified on the signature pages thereto
as
Borrowers, each of its Subsidiaries identified on the signature
pages
thereto as Guarantors, the Lenders that are signatory thereto,
Take Two GB
Ltd., Wells Fargo Foothill, Inc., as the arranger and administrative
agent
and CitiCapital Commercial Corporation, as the syndication
agent.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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TAKE-TWO
INTERACTIVE SOFTWARE, INC.
(Registrant)
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| By: | /s/ Daniel P. Emerson | |
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Daniel P. Emerson |
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Vice
President and Associate General
Counsel
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Date:
February 13, 2008
EXHIBIT
INDEX
Exhibit
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10.1
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First
Amendment to the Amended and Restated Credit Agreement, dated as
of
February 7, 2008, by and between Take-Two Interactive Software,
Inc. and
each of its Subsidiaries identified on the signature pages thereto
as
Borrowers, each of its Subsidiaries identified on the signature
pages
thereto as Guarantors, the Lenders that are signatory thereto,
Take Two GB
Ltd., Wells Fargo Foothill, Inc., as the arranger and administrative
agent
and CitiCapital Commercial Corporation, as the syndication
agent.
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FIRST
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
FIRST
AMENDMENT, dated as of February 7,
2008
(this "Amendment"),
to
the Amended and Restated Credit Agreement, dated as of November 16, 2007 (the
"Credit
Agreement"),
by and
among the lenders identified on the signature pages hereof (such lenders,
together with their respective successors and permitted assigns, are referred
to
hereinafter each individually as a "Lender" and collectively as the
"Lenders"),
WELLS
FARGO FOOTHILL, INC., a
California corporation, as the arranger and administrative agent for the Lenders
(in such capacity, together with its successors and assigns in such capacity,
"Agent"),
CITICAPITAL
COMMERCIAL CORPORATION, as
syndication agent for the Lenders (in such capacity, together with its
successors and assigns in such capacity, "Syndication
Agent"),
TAKE-TWO INTERACTIVE SOFTWARE, INC.,
a
Delaware corporation ("Parent"),
and
each of Parent's domestic Subsidiaries identified on the signature pages hereof
as a Borrower (such Subsidiaries, together with Parent, are referred to
hereinafter each individually as a "U.S.
Borrower",
and
collectively, jointly and severally, as the "U.S.
Borrowers"),
TAKE
TWO GB LTD.,
a
company
incorporated under the laws of England and Wales (the "U.K.
Borrower",
and
together with the U.S. Borrowers, each a "Borrower"
and
collectively, the "Borrowers"),
and
each of Parent's Subsidiaries identified on the signature pages hereof as a
Guarantor (such Subsidiaries are referred to hereinafter each individually
as a
"Guarantor",
and
individually and collectively, jointly and severally, as the "Guarantors";
and
together with Borrowers, each a "Loan
Party"
and
collectively, the "Loan
Parties").
WHEREAS,
in accordance with Section 6 of the Fee Letter, the Loan Parties, the Agent
and
the Lenders agree to modify the Credit Agreement on and subject to the terms
set
forth herein;
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Definitions.
Any
capitalized term used herein and not defined shall have the meaning assigned
to
it in the Credit Agreement.
2. Amendments.
(a) Schedule
1.1
of the
Credit Agreement is hereby amended by amending and restating the definition
of
"Applicable Margin" in its entirety to read as follows:
""Applicable
Margin"
means,
as of any date of determination,
(a) For
the
period from and including the Closing Date to but excluding the effective date
of any determination of the Applicable Margin pursuant to clause (b) below,
the
applicable rate per annum set forth opposite Level I below (the "Initial
Applicable Margin").
(b) For
each
quarter thereafter, commencing on the first day of the first quarter that occurs
six months after the Closing Date, the relevant Applicable Margin set forth
in
the table below that corresponds to the applicable average Liquidity for the
immediately preceding thirty day period set forth opposite thereto.
1
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Level
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30
Day Average Liquidity
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Applicable
Margin in respect of Base Rate Loans
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Applicable
Margin in respect of LIBOR Rate Loans
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I
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Less
than or equal to $45,000,000
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2.50%
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3.75%
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II
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Greater
than $45,000,000 but less than or equal to $105,000,000
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2.25%
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3.50%
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III
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Greater
than $105,000,000
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2.00%
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3.25%
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(c) Notwithstanding
the foregoing, upon the occurrence and during the continuance of an Event of
Default, the Applicable Margin shall be set at Level I set forth in the table
above."
3. Conditions
to Effectiveness.
The
effectiveness of this Amendment is subject to the fulfillment, in a manner
satisfactory to the Agent and the Lenders, of each of the following conditions
precedent (the date such conditions are fulfilled or waived by the Agent and
the
Lenders is hereinafter referred to as the "Amendment
Effective Date"):
(a) Representations
and Warranties; No Event of Default.
The
representations and warranties
herein,
in Section 4 of the Credit Agreement and in each other Loan Document and
certificate or other writing delivered to the Agent and the Lenders pursuant
hereto on or prior to the Amendment Effective Date shall be true and correct
in
all material respects (except
that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the
text
thereof) after
giving effect to this Amendment on and as of the Amendment Effective Date as
though made on and as of such date (except
to the extent such representations and warranties expressly relate to an earlier
date),
and no
Default or Event of Default shall have occurred and be continuing on the
Amendment Effective Date or would result from this Amendment becoming effective
in accordance with its terms.
(b) Execution
of Amendment.
The
Agent and the Lenders shall have executed this Amendment and shall have received
a counterpart to this Amendment, duly executed by the Borrowers and each
Guarantor.
4. Representations
and Warranties.
Each of
the Borrowers and the Guarantors represents and warrants as
follows:
(a) The
execution, delivery and performance by the Borrowers or such
2
Guarantor
of this Amendment (including, without limitation, Section 5) and the performance
by the Borrowers or such Guarantor of the Credit Agreement, as amended hereby,
have been duly authorized by all necessary action, and the Borrowers or such
Guarantor has all requisite power, authority and legal right to execute, deliver
and perform this Amendment (including, without limitation, Section 5) and to
perform the Credit Agreement, as amended hereby.
(b) This
Amendment and the Credit Agreement, as amended hereby, is a legal, valid and
binding obligation of the Borrowers or such Guarantor, enforceable against
the
Borrowers or such Guarantor in accordance with the terms thereof, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors'
rights generally.
(c) The
representations and warranties contained in Section 4 of the Credit Agreement
are true and correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof) after
giving effect to this Amendment on and as of the Amendment Effective Date as
though made on and as of the Amendment Effective Date (except to the extent
such
representations and warranties expressly relate to an earlier date), and no
Event of Default or Default has occurred and is continuing on and as of the
Amendment Effective Date, or would result from this Amendment becoming effective
in accordance with its terms.
5. Release.
Each
of
the Borrowers and the Guarantors may have certain Claims against the Released
Parties, as those terms are defined below, regarding or relating to the Credit
Agreement or the other Loan Documents. The Agent, the Lenders, the Borrowers
and
the Guarantors desire to resolve each and every one of such Claims in
conjunction with the execution of this Amendment and thus each of the Borrowers
and the Guarantors makes the releases contained in this Section 5. In
consideration of the Agent and the Lenders entering into this Amendment and
agreeing to substantial concessions as set forth herein, each of the Borrowers
and the Guarantors hereby fully and unconditionally releases and forever
discharges each of the Agent and the Lenders, and their respective directors,
officers, employees, subsidiaries, branches, affiliates, attorneys, agents,
representatives, successors and assigns and all persons, firms, corporations
and
organizations acting on any of their behalves (collectively, the "Released
Parties"),
of
and from any and all claims, allegations, causes of action, costs or demands
and
liabilities, of whatever kind or nature, from the beginning of the world to
the
date on which this Amendment is executed, whether known or unknown, liquidated
or unliquidated, fixed or contingent, asserted or unasserted, foreseen or
unforeseen, matured or unmatured, suspected or unsuspected, anticipated or
unanticipated, which the Borrowers or the Guarantors has, had, claims to have
had or hereafter claims to have against the Released Parties by reason of any
act or omission on the part of the Released Parties, or any of them, occurring
prior to the date on which this Amendment is executed, including all such loss
or damage of any kind heretofore sustained or that may arise as a consequence
of
the dealings among the parties up to and including the date on which this
Amendment is executed, including the administration or enforcement of the
Advances, the Obligations, the Credit Agreement or any of the Loan Documents
(collectively, all of the foregoing, the "Claims").
Each
of the Borrowers and the Guarantors represents and warrants that it has no
knowledge of any claim by it against the Released Parties or of any facts or
acts of omissions of the Released Parties which on the date
3
hereof
would be the basis of a claim by the Borrowers
or the Guarantors against the Released Parties which is not released hereby.
Each of the Borrowers and the Guarantors represents and warrants that the
foregoing constitutes a full and complete release of all Claims.
6. Miscellaneous.
(a) Continued
Effectiveness of the Credit Agreement.
Except
as otherwise expressly provided herein, the Credit Agreement and the other
Loan
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects, except
that on
and
after the Amendment Effective Date (i) all references in the Credit Agreement
to
"this Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Credit Agreement shall mean the Credit Agreement as amended
by
this Amendment, and (ii) all references in the other Loan Documents to the
"Credit Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Credit Agreement shall mean the Credit Agreement as amended
by
this Amendment. To the extent that the Credit Agreement or any other Loan
Document purports to pledge to Agent, or to grant to Agent, a security interest
or lien, such pledge or grant is hereby ratified and confirmed in all respects.
Except as expressly provided herein, the execution, delivery and effectiveness
of this Amendment shall not operate as an amendment of any right, power or
remedy of the Agent and the Lenders (including the Issuing Lender) under the
Credit Agreement or any other Loan Document, nor constitute an amendment of
any
provision of the Credit Agreement or any other Loan Document.
(b) Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement. Delivery
of an executed counterpart of this Amendment
by
telefacsimile or electronic mail shall be equally as effective as delivery
of an
original executed counterpart of this Amendment.
(c) Headings.
Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
(d) Costs
and Expenses.
The
U.S. Borrowers agree to pay on demand all reasonable fees, costs and expenses
of
the Agent and the Lenders in connection with the preparation, execution and
delivery of this Amendment.
(e) Amendment
as Loan Document.
The
Borrowers and each Guarantor hereby acknowledge and agree that this Amendment
constitutes a "Loan Document" under the Credit Agreement. Accordingly, it shall
be an Event of Default under the Credit Agreement if (i) any representation
or
warranty made by the Borrowers or any Guarantor under or in connection with
this
Amendment shall have been untrue, false or misleading in any material respect
when made, or (ii) the Borrowers or any Guarantor shall fail to perform or
observe any term, covenant or agreement contained in this Amendment.
(f) Governing
Law.
This
Amendment shall be governed by the laws of the State of New York.
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(g) Waiver
of Jury Trial.
THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL
OTHER COMMON LAW OR STATUTORY CLAIMS.
[Remainder
of this Page Intentionally Left Bank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered as of the date first above written.
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U.S.
BORROWERS:
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TAKE-TWO
INTERACTIVE SOFTWARE, INC.,
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a
Delaware corporation
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By:
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/s/
Lainie Goldstein
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Name:
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Lainie
Goldstein
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Title:
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Chief
Financial Officer
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JACK
OF ALL GAMES, INC.,
a
New York corporation
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By:
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/s/
Lainie Goldstein
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Name:
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Lainie
Goldstein
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Title:
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Chief
Financial Officer
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| U.K. BORROWER: | |||
| TAKE-TWO GB LIMITED | |||
| a company incorporated under the laws of England and Wales | |||
| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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GUARANTORS:
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2K
GAMES, INC.,
a
Delaware corporation
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2KSPORTS,
INC.,
a
Delaware corporation
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FIRAXIS
GAMES, INC.,
a
Delaware corporation
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FROG
CITY SOFTWARE, INC.,
a
Delaware corporation
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Vice
President
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2K
PLAY, INC.,
a
Delaware corporation
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INDIE
BUILT, INC.,
a
Delaware corporation
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INVENTORY
MANAGEMENT SYSTEMS, INC.,
a
Delaware corporation
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KUSH
GAMES, INC.,
a
California corporation
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TAKE-TWO
LICENSING, INC.,
a
Delaware corporation
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TALONSOFT,
INC.,
a
Delaware corporation
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VISUAL
CONCEPTS ENTERTAINMENT,
a
California corporation
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VLM
ENTERTAINMENT GROUP, INC.,
a
Delaware corporation
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Vice
President
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ROCKSTAR
SAN DIEGO, INC.,
a
Virginia corporation
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2K
BOSTON LLC,
a
Delaware limited liability company
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ROCKSTAR
GAMES, INC.,
a
Delaware corporation
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Secretary
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CAT
DADDY GAMES, L.L.C.,
a
Washington limited liability company
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By:
Take-Two Interactive Software, Inc., its sole
member
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Vice
President and Associate General
Counsel
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JOYTECH
EUROPE LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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TAKE
TWO INTERACTIVE SOFTWARE EUROPE LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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DMA
DESIGN HOLDINGS LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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ROCKSTAR
LINCOLN LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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ROCKSTAR
LEEDS LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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ROCKSTAR
LONDON LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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ROCKSTAR
NORTH LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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ROCKSTAR
INTERNATIONAL LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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VENOM
GAMES LIMITED
a
company incorporated under the laws of England and
Wales
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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TAKE
TWO INTERNATIONAL SA,
a
company incorporated under the laws of Switzerland
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Director
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2K
MARIN, INC.,
a
Delaware corporation
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| By: |
/s/
Daniel P. Emerson
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| Name: |
Daniel
P. Emerson
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| Title: |
Vice
President
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WELLS
FARGO FOOTHILL, INC.,
a
California corporation, as Agent and as a Lender
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By:
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/s/
Tiffany Ormon
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Name:
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Tiffany
Ormon
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Title:
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Vice
President
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CITICAPITAL
COMMERCIAL CORPORATION,
as
a Lender
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By:
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/s/
Doreen Amado
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Name:
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Doreen
Amado
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Title:
|
Vice
President
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