EX-10.2



 






Exhibit 10.2




Trademark License Of The Test Drive Franchise




November 8, 2007



The following terms and conditions establish the agreement (the “License”) between Infogrames
Entertainment S.A. (“Licensee”) and Atari, Inc. (“Licensor”) with respect to the Franchise (as
defined below) until such time as superseded by the long-form agreement with respect to the subject
matter hereof that is contemplated by the parties.




	 	 	 
	1. Franchise:

	 	“Franchise” collectively shall mean the series
of interactive computer and video games known
as “Test Drive” and “Test Drive Unlimited”
(including, but not limited to, all written
expressions of the Licensor-published retail
and other versions of such games, expansion
packs, add-on products, and manuals,
including, without limitation, as the
foregoing are set forth on Exhibit A hereto
(the Catalogue Titles”), subject to any
license limitations or restrictions thereon
(which shall be handled in accordance with
Section 7 of this License), and all
intellectual property and proprietary rights
owned or controlled by Licensor therein,
including, without limitation, all
programmers’ notes and development tools used
to develop any such games, source code and
object code of such games, copyrights, moral
rights, inventions, patents, patent
applications, trade secrets, design rights,
domain names, logos, trademarks, service
marks, and trade names owned or controlled by
Licensor, and specifically including, but not
limited to, those rights and elements
(trademark registrations and applications,
copyright registrations and applications, and
domain names,) which are listed on Exhibit A1
hereto. Exhibit A includes Exhibit A1 and
Exhibit A2. Exhibit A1 includes all of the
elements of the Franchise that are owned or
controlled by Licensor. All of the elements
of the Franchise not owned or controlled by
Licensor are listed in Exhibit A2.
	 
	 	 
	2. Licensed Products:

	 	The products set forth in Exhibit B hereto
	 
	 	 
	3. Territory:

	 	Worldwide
	 
	 	 
	4. Effective Date:

	 	November 8, 2007
	 
	 	 
	5. Term:

	 	“Term” shall mean the seven (7) year period
commencing on the Effective Date. Licensee’s
rights are exclusive during the Term. Upon
the expiration or earlier termination of the
Term, Licensee shall have a non-exclusive, six
(6) month sell-off period. Notwithstanding
the fact that Licensee’s rights are exclusive
during the Term, commencing on the sixth
(6th) anniversary of the Effective
Date, Licensor may meet with third parties
that desire to exploit Licensed Products
incorporating, based on, or otherwise derived
from any element(s) of the Franchise and grant
such third parties licenses therein; provided
that Licensor shall not grant any such third
parties a right or license to publish,
promote, market, advertise,












 



 


	 	 	 
	 

	 	distribute, and otherwise exploit (other than the right to
develop or manufacture) Licensed Products incorporating, based
on, or otherwise derived from any element(s) of the Franchise
prior to the expiration or earlier termination of the Term.
Notwithstanding the foregoing, commencing on the sixth
(6th) anniversary of the Effective Date, Licensor may
take all other actions necessary to be in a position to publish,
promote, market, advertise, distribute, and otherwise exploit
the Franchise upon the expiration or earlier termination of the
Term provided that all such actions must be conducted on a
confidential, non-public basis and kept out of the public
domain.
	 
	 	 
	6. Nature of license:

	 	Exclusive
	 
	 	 
	7. License

	 	Subject to receipt by Licensor of the Royalty
Advance described below, and subject to the
exceptions and restrictions expressly set
forth in this License, Licensor hereby grants
to Licensee the exclusive (even as to
Licensor) right and license, under Licensor’s
trademark rights, to create, develop,
produce, publish, promote, market, advertise,
manufacture, distribute, and otherwise
exploit, during the Term, Licensed Products
incorporating, based on, or otherwise derived
from any element(s) of the Franchise. With
respect to any third-party properties
included in games or otherwise that are part
of the Franchise (including, by way of
illustration but not limited to, vehicle
names and likenesses, music, actor name and
likenesses, and third party software tools)
that are listed on Exhibit A2, Licensee
acknowledges that such properties are not
part of the license grant hereunder.
Licensor shall transfer or sublicense all
licenses executed with such third parties
which are transferable or sublicensable
provided that any such transfer or sublicense
does not impair Licensor’s ability to publish
any of the Catalog Titles. However, Licensor
shall not object to or prevent Licensee from
licensing such materials from any such third
parties (including, but not limited to, the
waiving of exclusivity rights, if any) and
shall, at Licensee’s request, offer
reasonable assistance in facilitating any
such third party licensing (including, but
not limited to, offering introductions,
contacts, and copies of third party contracts
where not prohibited by confidentiality
provisions). Additionally, Licensor shall
provide a copy of any other documentation,
including, but not limited to, relevant
correspondences and file memorandums, bills,
notices of breaches, disputes, that are
material to the License in order to inform
Licensee of the status of such contractual
relationships between Licensor and such third
parties.
	 
	 	 
	 

	 	No later than five (5) days after the Effective Date, Licensor
shall deliver or otherwise make available to Licensee all of the
items set forth on Exhibit D and Exhibit D1
hereto.
	 
	 	 
	8. Reserved Rights:

	 	Except for the Licensed Products created by or on behalf of Licensee,
Licensor hereby reserves the sole and exclusive ownership of the Franchise. Subject to the
distribution agreement referenced












 



 


	 	 	 
	 

	 	below in Section 16 and notwithstanding the exclusive license
grant described in Section 7, Licensor reserves the exclusive
right to continue to distribute during the Term all of the
Catalog Titles released prior to the Effective Date. This
license is also subject to the existing licenses specified in
Exhibit C hereto and to existing licenses relating to
the Franchise granted by Licensee or its affiliates (other than
Licensor and Licensor’s subsidiaries). All rights not expressly
granted in this License are reserved by Licensor. As between
Licensor and Licensee, Licensee shall be sole and exclusive
owner of the Licensed Products created by or on behalf of
Licensee excluding those elements or rights contained therein
that are (x) in a Catalog Title and owned by Licensor or a third
party or (y) set forth in Exhibit A. Except for
Licensee’s ownership of the Licensed Products created by or on
behalf of Licensee: (a) nothing contained in this License shall
be construed as an assignment or grant to Licensee of any
ownership right in or to the Franchise, or any other right,
title, or interest in or to the Franchise, except as expressly
set forth herein; (b) all uses of the Franchise shall inure to
the benefit of Licensor; and (c) Licensee recognizes the value
of the good will associated with the Franchise and acknowledges
that the Franchise, and all rights therein and the good will
pertaining thereto, belong exclusively to Licensor.
	 
	 	 
	9. Wireless Platform

	 	Notwithstanding the license grant described in Section 7 above, Licensee’s
right with respect to Licensed Products playable on wireless devices, including, but not
limited to, personal digital assistants and mobile, cell and satellite phones (the “Wireless
Platform”) is limited, during the two (2) year period following the Effective Date, to the
right to sublicense such right to an appropriate and qualified third party wireless game
publisher on reasonable market terms. Licensee shall enter into such sublicense and cause
the first Wireless Platform Licensed Product to be released in all major markets (i.e.,
United States and the major countries of the European Union) not later than six months after
release of TDU2 (as hereinafter defined). Failure by Licensee to timely satisfy this
commitment shall result in a reversion to Licensor of all rights with respect to Licensed
Products on the Wireless Platform.
	 
	 	 
	 

	 	After the expiration of the two year period commencing on the
Effective Date, Licensee may, with respect to Licensed Products
playable on the Wireless Platform, either sublicense its right
to an appropriate and qualified third party wireless game
publisher on reasonable market terms and with no obligation as
to the markets of release, or publish itself, or together with
an appropriate and qualified third party partner, such Licensed
Products.
	 
	10. Advance Royalty:

	 	Licensee shall pay to Licensor a non-refundable fully recoupable advance
against Royalties otherwise payable hereunder in the amount of Four Million Dollars (USD)
($4,000,000.00) (the “Advance Royalty”). The Advance Royalty shall be paid to Licensor within
5 (five) business days after signature of this License. The












 



 


	 	 	 
	 

	 	Advance Royalty shall accrue interest at a yearly rate of
fifteen percent (15%) throughout the Term (the Advance Royalty,
as increased by interest, compounded annually, the “Cumulative
Advance Amount”). The Cumulative Advance Amount shall be fully
recoupable by Licensee from Royalties earned by and otherwise
due to Licensor as per this License. Notwithstanding anything
to the contrary set forth herein, the Licensor shall be required
to repay any unrecouped portion of the Cumulative Advance
Payment as part of the Liquidated Damages (as such term is
defined in Section 21).
	 
	 	 
	11. Royalties:

	 	Licensee shall pay Licensor a base royalty rate of 7.2% of Net Revenue actually
received by Licensee from the sale of the Licensed Products created by or on behalf of
Licensee.
	 
	 	 
	 

	 	Notwithstanding the foregoing, Licensee shall pay to Licensor, in
lieu of the foregoing royalties, a royalty on Net Revenue
actually received by Licensee from the exploitation of Licensed
Products on the Wireless Platform created by or on behalf of its
sublicensees in the amount of forty percent (40%) of Net Revenue.
	 
	 	 
	12. Net Revenue:

	 	All revenue received in connection with
Licensed Products created by or on behalf of
Licensee or its sublicensees less: (a)
Chargebacks (as defined below) incurred by
Licensee; (b) freight, taxes, insurance,
duties, customs and brokerage fees incurred
by Licensee; and (c) in the case of
sublicenseing, agency fees, IP registration
and protection and enforcement costs.
“Chargebacks” are defined as price
protections, returns, co-op, MDF and other
customary deductions and discounts, taken or
granted by Licensee to its customers
specifically in connection with Licensed
Products created by or on behalf of Licensee
or its sublicensees, plus, except with
respect to sublicensing revenue, an
additional three percent (3%) of gross
receipts deducted in order to reflect
retailer-level deductions taken for early
payment, volume discounts, and similar items,
but excluding marketing expenses.
	 
	 	 
	13. Performance Clause:

	 	(A) Release Commitment. Licensee shall
develop (and/or have developed) and
commercially release (and/or have
commercially released) in all major markets
(i.e., United States and the major countries
of the European Union): (i) one (1)
interactive software game based on the
Franchise (“TDU2”) for at least one Major
Platform (as defined below) and the PC
Platform within twenty (20) months of the
Effective Date; and (ii) at least one
additional interactive software game based on
the Franchise (“TDU3”) for at least one Major
Platform and the PC Platform within 60 months
of the Effective Date. A “Major Platform”
shall mean Xbox 360, PS3, Wii, or the
successors to any of the foregoing. Each of
the two (2) above-mentioned interactive
software games satisfying the minimum
commitment must be a new stand-alone game and
not a port, expansion pack or episodic
content.












 



 


	 	 	 
	 

	 	(B) Distribution Commitment. Licensee shall make and
maintain commercially reasonable arrangements for the
manufacture, distribution, sale and timely delivery of
sufficient quantities of each Licensed Product to distributors
and retailers in all major markets (i.e., United States and the
major countries of the European Union) to meet the demands of
the marketplace, and its obligations to distributors and
retailers consistent with commercially sound business practices.
	 
	 	 
	14. Premiums

	 	No license is granted for the
manufacture, sale or distribution of
Licensed Products whose purpose is to
be used exclusively as promotional
items, in “advergaming,” or as
“Premiums,” meaning any Licensed
Products used exclusively for the
purposes of increasing the sale of
another item; promoting or
publicizing any product or service;
fundraising or as giveaways to
motivate a sales force, merchant,
consumer or any other person to
perform a specific act; or acting as
a tie-in.
	 
	 	 
	15. Product
Information/Quality

	 	Licensee shall provide to Licensor,
on an informational basis only, the
game design and the final version of
each Licensed Products created by or
on behalf of Licensee or its
sublicensees, as well as the
contemplated marketing plans of said
Licensed Products. Licensor shall
inform Licensee in writing, with
detailed comments and explanations of
such comments within ten (10)
business days of receipt of the
submission by Licensee. Licensee
will consider such comments and
explanations that are timely
submitted to it in writing. Licensor
and Licensee representatives shall
engage in one or more pre-production
meetings for each Licensed Product.
	 
	 	 
	 

	 	The Licensed Products published by Licensee shall be of high
quality and at least equivalent quality to the Catalog Title
entitled “Test Drive Unlimited” after accounting for disparities
in quality that exist due to inherent limitations in certain
Platforms (e.g., the small screen size of mobile devices). All
such Licensed Products shall include a proper trademark and/or
copyright notices indicating Licensor’s ownership in the
elements and rights licensed to Licensee under this License and
contained in any Licensed Products published by Licensee in a
form to be provided by Licensor, provided that the failure to
include any such notice shall not be deemed to be a material
breach of this License by Licensee where Licensee’s endeavors to
promptly and prospectively correct such error.
	 
	 	 
	16. Distribution of
Catalog Titles:

	 	For the duration of the present License, Licensor hereby
grants to Licensee the exclusive right to distribute throughout the Territory (excluding the
US, Canada, Mexico and their possessions) all the Catalog Titles. The terms and conditions
of such distribution by Licensee will be the same as the existing ones in the distribution
agreement dated December 16, 1999 between Licensee and Licensor (the “Distribution
Agreement”). Nothing in this License shall












 



 


	 	 	 
	 

	 	affect the rights and obligations of Licensor and Licensee under
the Distribution Agreement, the terms of which shall remain in
full force and effect.
	 
	 	 
	17. Warranties:

	 	Licensor warrants and represents that:
	 
	 

	 	- it has power and authority to enter into this License and that
it has not entered and shall not enter into any other agreement
that restricts or impairs, or could restrict or impair its
ability to carry out in whole or in part the provisions of this
License and the rights granted herein;
	 
	 

	 	- it is the sole and unconditional owner of all right, title and
interest in and to those elements and rights of the Franchise
listed on Exhibit A1;
	 
	 

	 	- except as otherwise expressly set forth on Exhibit A2, it was
granted all the exploitation rights necessary to use those
elements and rights of the Franchise in the manner in which the
Franchise was exploited (other than by Licensee or Eden Studios)
immediately prior to the Effective Date and has the authority to
make the grant specified in Section 7 hereof;
	 
	 

	 	- except as otherwise expressly set forth on Exhibit A2, it has
obtained all the necessary consents to make the grant of rights
covered by this License including, without limitation, from any
persons performing services or granting rights in connection with
the Franchise and that Licensee shall not be responsible for any
report, charge, fee, royalty or any other payment to any person
or entity in connection with the exploitation of the rights
granted hereunder;
	 
	 

	 	- the granting of the rights granted hereunder does not and will
not violate or otherwise constitute a material breach of the
terms and conditions of any other agreement entered into by
Licensor that has not otherwise been waived;
	 
	 

	 	- to Licensor’s Knowledge (as hereinafter defined), other than as
set forth on Exhibit A1, there are no current or threatened
claims, lawsuits, proceedings and/or other judicial or government
actions anywhere in the world concerning the scope, validity,
enforceability, ownership, infringement, misappropriation, use or
misuse of any of the rights and/or licenses granted to Licensee
under this License. “Licensor’s Knowledge” means the actual
knowledge of Licensor after reasonable inquiry of the employees
of Licensor at the level of vice president or higher, including,
without limitation, Licensor’s officers;
	 
	 

	 	- the exercise by Licensee or any of its affiliates,
subsidiaries, directors, representatives, employees and agents of
the rights granted hereunder does not and shall not infringe,
misappropriate or otherwise violate any third party’s
intellectual property or proprietary rights;
	 
	 

	 	- it shall not act, nor cause any third party to act, in such
manner as to disturb or interrupt, directly or indirectly, the
quiet enjoyment by Licensee of the rights granted in this
License;
	 
	 

	 	- the information set forth on Exhibit A1 (other than
those elements owned or controlled as of the date hereof by
Licensee or Eden Studios) and Exhibit C (other than those
existing licenses relating to the Franchise granted by Licensee
or its affiliates (other than












 



 


	 	 	 
	 

	 	Licensor and Licensor’s subsidiaries)) is complete and accurate
in all material respects;
	 
	 

	 	- to Licensor’s Knowledge, the information set forth on
Exhibit A2 (other than those elements owned as of the
date hereof by Licensee or its affiliates (other than Licensor or
Licensor’s subsidiaries)) and Exhibit D1 is complete and
accurate in all material respects;
	 
	 

	 	- Licensor has paid all advances, royalties and other sums due to
any third party pursuant to any agreement that Licensor is
transferring to Licensee in accordance with the above provisions
of Section 7;
	 
	 

	 	- it shall indemnify and hold harmless Licensee, its affiliates,
subsidiaries, assignees, directors, representatives, employees
and agents, from and against any claim(s) of any third party
whatsoever arising from a breach or alleged breach of any of
Licensor’s representations or warranties hereunder; and
	 
	 

	 	- it shall, at its own expense, proceed with the filings with the
appropriate governmental bodies and bear the costs of
registration and renewals of protection of the trademarks and
copyrights included in the Franchise in such territories where
any such trademarks and copyrights are registered (or where an
application has been filed for such trademarks and copyrights) by
Licensor as of the Effective Date.
	 
	 	 
	 

	 	Licensee represents and warrants that:
	 
	 

	 	- it has power and authority to enter into this License and that
it has not entered and shall not enter into any other agreement
that restricts or impairs, or could restrict or impair its
ability to carry out in whole or in part the provisions of this
License and the rights granted herein;
	 
	 

	 	- it shall not infringe or misappropriate Licensor’s intellectual
property or proprietary rights in the Franchise or knowingly aid
or abet anyone else in doing so;
	 
	 

	 	- it shall defend, indemnify and hold harmless Licensor, its
affiliates, subsidiaries, assignees, directors, representatives,
employees and agents, from and against any claim(s) of any third
party whatsoever arising from (i) a breach or alleged breach of
any of Licensee’s representations or warranties hereunder; or
(ii) infringement of such third-party’s intellectual property
rights arising from any Licensed Product created by or on behalf
of Licensee or any advertising or promotional materials used by
Licensee in connection therewith (except to the extent that such
infringement arises from any of those elements or rights of the
Franchise listed on Exhibit A1 or any part of any such elements);
or (iii) failure by Licensee to comply with any applicable law or
regulation in the exercise by Licensee of the rights granted
hereunder.
	 
	 	 
	 

	 	The representations and warranties of Licensor and Licensee
shall survive any termination or expiration of this License.
	 
	 	 
	18. Reporting; Reserve,
Payment:

	 	Licensee shall provide a detailed statement of royalties and
shall pay to Licensor all Royalties due within forty-five (45) days after the end of each
calendar quarter during the Term. Licensee may establish a Reserve Basket but in no event
shall the Reserve Basket exceed












 



 


	 	 	 
	 

	 	Twenty five Percent (25%) of the Royalty otherwise due to
Licensor during each calendar quarter. Reserves shall be
withheld every quarter and liquidated within the next 2 (two)
subsequent calendar quarters. Licensor shall upon reasonable
notice to Licensee, and in any event not less than thirty (30)
days notice, have all customary audit rights, including, but not
limited to, the right to access all records relating to the
calculation of Royalties hereunder, at Licensee’s headquarters
at any reasonable time during or within two years of the
conclusion of the Term.
	 
	 	 
	19. Governing law and venue:

	 	Any controversy of claim arising out of
or relating to the construction or
applications of any term, provision, or
condition of this License shall comply
with and be governed in accordance with
the laws of the state of New York as
applicable to contracts made and
performed entirely within the state of
New York and shall be settled by final
and binding arbitration, in New York,
New York, under the Commercial
Arbitration Rules of the American
Arbitration Association. The number of
arbitrators shall be one. The cost of
arbitration shall be borne by the losing
party or in such proportion as the
arbitrator shall decide. Judgment on
the award rendered by the arbitrator may
be entered in any court in the world
having jurisdiction.
	 
	 	 
	
20. Confidentiality:
	 	Each party acknowledges that Confidential Information
 (as defined below) may be disclosed to the other party during the course of this License.
 Each party agrees that it will take reasonable steps, at least substantially equivalent to the
 steps it takes to protect its own proprietary information, during the term of the License, and
 for a period of three years following expiration or termination
of the License, to prevent the duplication or disclosure of Confidential Information
of the other party, other than by or to its employees or agents who must have access to
such Confidential Information to perform such party’s obligations hereunder and/or to exploit
 such party’s rights granted to it hereunder, who will each agree to comply with this section.
	 
	 	 
	 

	 	“Confidential Information” means any information relating to or
disclosed in the course of negotiating and implementing the
License, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing party, including,
but not limited to, the content of negotiations between the
parties, the material terms of the License, information about
source code, product designs, sales, cost and other unpublished
financial information, product and business plans, projections
and marketing data. “Confidential Information” shall not
include information (a) already lawfully known to or
independently developed by the receiving party, (b) disclosed in
published materials, (c) generally known to the public, (d)
lawfully obtained from any third party not bound by a
confidentiality obligation to the disclosing party or (e)
required or reasonably advised to be disclosed by law.












 



 


	 	 	 
	21. License Termination:

	 	In the event that Licensee (i) fails to timely satisfy the release
commitments set forth in Section 13(A) of this License; or (ii) fails to make timely payment
of the Advance Royalty to Licensor as set forth in Section 10 of this License; or (iii) fails
to pay Royalties to Licensor on a timely basis as set forth in Section 18 of this License; or
(iv) commits a material breach of the quality commitments set forth in Section 15 of this
License, that, as shown by proof by Licensor, causes a material damage to the Franchise as a
whole; and any such breach set forth in the immediately preceding clauses (i), (ii) and/or
(iii) is not cured within thirty (30) days of the receipt by Licensee of written notice
thereof, and any such breach set forth in the preceding clause (iv) is not cured within
ninety (90) days of the receipt by Licensee of written notice thereof through correcting any
deficiency on future released Licensed Products, then the Licensor shall have the right to
terminate this License, in whole or in part, immediately upon a second written notice to the
Licensee, in addition to any other rights or remedies Licensor may have. In the event that
Licensor materially breaches this License, and such breach is not cured within thirty (30)
days of the receipt by Licensor of written notice thereof, then Licensee shall have the right
to terminate this License, in whole or in part, immediately upon a second written notice to
Licensor, in addition to any other rights or remedies Licensee may have.
	 
	 	 
	 

	 	Upon Licensee’s termination of the License in accordance with
the immediately preceding paragraph, or in the event Licensee
loses the benefit of the license granted hereunder or such
license is otherwise terminated for any reason other than for
the reasons in clauses (i), (ii), (iii) and/or (iv) set forth in
the immediately preceding paragraph, the Licensor and Licensee
agree to the following liquidated damages which Licensor shall
pay to Licensee. The liquidated damages will be the sum of (a)
the Cumulative Advance Amount then outstanding which has not
been recouped by Licensee in accordance with Section 10, (b) all
costs and expenses incurred by Licensee, including, but not
limited to, research and development costs, in connection with
the development of TDU2 and TDU3 which has not been amortized by
Licensee, and (c) any indemnity which Licensee shall be entitled
to under Section 17 (collectively, the “Liquidated Damages”).
Licensee and Licensor acknowledge that the Liquidated Damages
are reasonable under the circumstances existing on the Effective
Date and reasonably approximate the amount of damages that would
be sustained by Licensee as a consequence of Licensor’s material
breach of this License and that it is impracticable or extremely
difficult to determine the actual damages that would be
sustained by Licensee as a result of Licensor’s material breach.
The Liquidated Damage amounts provided for herein are not
intended to constitute a forfeiture or penalty, but are instead
intended to reflect Licensor’s and Licensee’s best estimate of
Licensee’s actual damages.












 



 


	 	 	 
	 

	 	The terms and conditions of the following Sections will survive
Licensor’s termination of this License or the rejection of the
License in a Licensor bankruptcy case under the United States
Bankruptcy Code as amended (the “Bankruptcy Code”) or other
insolvency law: Sections 17, 19, 20, 21, 22, 23, 24, 25, 26, 27,
28, 29, 30 and 31. In addition, the termination or expiration
of this Agreement shall not relieve either party of any
liability that accrued prior to such termination or expiration.
	 
	 	 
	22. Grant of Security
Interest:

	 	Where applicable, and except as otherwise defined herein, terms
used in this Section 22 shall have the meanings assigned to them in the Uniform Commercial
Code as the same may be in effect in the State of New York (the “UCC”).
	 
	 	 
	 

	 	As security for the full payment and performance of Licensor’s
obligations under the (i) License, including, without
limitation, the payment of the Liquidated Damages and (ii)
General Intellectual Property and Proprietary Rights (Other Than
Trademark Rights) License of The Test Drive Franchise between
the parties dated of even date herewith, including, without
limitation, the Licensor Obligations (as such term is defined
therein) payable thereunder (collectively (i) and (ii), the
“Obligations”), Licensor hereby grants to Licensee a continuing
security interest in all of Licensor’s right, title and interest
in the following (the “Collateral”), whether now owned or
hereafter acquired: (a) all intellectual property and
proprietary rights owned by Licensor of every kind whatsoever in
the interactive computer video game known as “Test Drive
Unlimited”, including, without limitation, (x) all trademarks
(including the goodwill associated with such trademarks),
copyrights, patents and trade secrets, (y) the copyrights,
trademarks (including the goodwill associated with such
trademarks), and domain names described on Exhibit A1 of this
License, and (z) all other intellectual property and proprietary
rights in the interactive computer video game known as “Test
Drive Unlimited” (including, without limitation, all versions,
prequels, sequels, expansion packs, add-on products and
manuals), (b) all rights (but not the obligation) to maintain
claims for past, present and future infringements of the
Collateral and the right to enforce the same, (c) all inventory
and accounts receivable derived or realized from the interactive
computer video game known as “Test Drive Unlimited” (including,
without limitation, all versions, prequels, sequels, expansion
packs, add-on products and manuals) and (d) all products and
proceeds of any of the foregoing.
	 
	 	 
	 

	 	Notwithstanding anything herein to the contrary, the liens and
security interests granted to the Licensee pursuant to this
License and the exercise of any right or remedy by Licensee
hereunder be and hereby are junior in all respects to the liens,
rights, security interests, and remedies granted to the
Administrative Agent under the Credit Agreement dated as of
November 3, 2006, by and among the Administrative Agent, Atari,
Inc. and the lenders from time to












 



 


	 	 	 
	 

	 	time party thereto (as amended, supplemented, amended and
restated, refinanced or otherwise modified, the “Credit
Agreement”), and the Loan Documents (as such term is defined in
the Credit Agreement). Licensee represents and warrants that it
shall execute and deliver, within five (5) business days of the
date hereof, an intercreditor agreement, in form and substance
satisfactory to the Administrative Agent and Licensee (as
amended, supplemented, amended and restated, or otherwise
modified from time to time, the “Intercreditor Agreement”). In
the event of any conflict between the terms of the Intercreditor
Agreement and the grant of security interest to Licensee
hereunder, the terms of the Intercreditor Agreement shall govern
and control. The liens and security interests granted to
Licensee in the Collateral hereunder are a second priority
security interest subject only in priority to the liens and
security interests granted to the Administrative Agent under the
Credit Agreement.
	 
	 	 
	 

	 	Licensor has all requisite power to execute, deliver and perform
its obligations under this Section 22.
	 
	 	 
	 

	 	Licensee is authorized to file at any time financing statements,
continuation statements, and amendments thereto, including, but
not limited to, filings with the United States Copyright Office
and United States Patent and Trademark Office or any other
governmental agency, it deems necessary or desirable in order to
secure and perfect its rights under this License.
	 
	 	 
	 

	 	At any time upon the request of the Licensee, Licensor shall
execute and deliver to the Licensee any and all financing
statements, original financing statements, in lieu of
continuation statements, patent security agreements, copyright
security agreements and trademark security agreements, that the
Licensee may request, in form and substance reasonably
satisfactory to the Licensee, to create, perfect and continue
perfected or to better perfect the Licensee’s security interest
in the Collateral (whether now owned or hereafter arising or
acquired, tangible or intangible), and in order to fully
consummate all of the transactions contemplated hereby. To the
maximum extent permitted by applicable law, Licensor authorizes
the Licensee to execute any such documents in Licensor’s name
and authorizes the Licensee to file such executed additional
documents in any appropriate filing office.
	 
	 	 
	 

	 	After the execution of the Intercreditor Agreement, subject to
the terms thereof, Licensor will join with Licensee in notifying
any third party who has possession of any Collateral of
Licensee’s security interest therein and obtaining an
acknowledgment from the third party that it is holding the
Collateral for the benefit of Licensee.
	 
	 	 
	 

	 	If and when Licensor shall obtain rights to any new patents,
trademarks, service marks, trade names or copyrights, or
otherwise acquire or become entitled to the benefit of, or apply
for registration












 



 


	 	 	 
	 

	 	of, any of the foregoing which comprise the Collateral, Licensor
(i) shall promptly notify Licensee and (ii) hereby authorizes
Licensee to modify, amend, or supplement Exhibit A-1 from time
to time to include any of the foregoing and make all necessary
or appropriate filings with respect thereto.
	 
	 	 
	 

	 	Licensor has rights in or the power to transfer the Collateral,
and Licensor is the sole and complete owner of the Collateral,
free from any mortgage, deed of trust, pledge, security
interest, assignment, deposit arrangement, charge or
encumbrance, lien or other type of preferential arrangement
(collectively “Lien”), other than Liens granted under Credit
Agreement and otherwise permitted under the Credit Agreement
(collectively, “Permitted Liens”).
	 
	 	 
	 

	 	Licensor shall carry and maintain in full force and effect, at
its own expense and with financially sound and reputable
insurance companies, insurance with respect to the Collateral in
such amounts, with such deductibles and covering such risks as
is customarily carried by companies engaged in the same or
similar businesses and owning similar properties in the
localities where Licensor operates. Insurance on the Collateral
shall name Licensee as additional insured and as loss payee.
	 
	 	 
	 

	 	Licensor shall keep the Collateral free of all Liens except
Permitted Liens.
	 
	 	 
	 

	 	After execution of the Intercreditor Agreement, subject to the
terms thereof, Licensor shall not surrender or lose possession
of (other than to Licensee), sell, lease, rent, license or
otherwise dispose of or transfer any of the Collateral or any
right or interest therein.
	 
	 	 
	 

	 	Licensee shall have, in addition to all other rights and
remedies given it by this License, those allowed by law and the
rights and remedies of a secured party under the Uniform
Commercial Code as enacted in any jurisdiction in which either
the Collateral may be located or is otherwise applicable.
	 
	 	 
	 

	 	After the execution of the Intercreditor Agreement, subject to
the terms thereof, Licensee shall have the right to, in the name
of Licensor, or in the name of Licensee or otherwise, upon
notice to but without the requirement of assent by Licensor, and
Licensor hereby constitutes and appoints Licensee (and any of
Licensee’s officers, employees or agents designated by Licensee)
as Licensor’s true and lawful attorney-in-fact, with full power
and authority to: (a) sign and file any of the financing
statements and other documents and instruments which must be
executed or filed to perfect or continue perfected, maintain the
priority of or provide notice of Licensee’s security interest in
the Collateral; (b) assert, adjust, sue for, compromise or
release any claims under any policies of insurance; and (c)
execute any and all such other documents and instruments, and do
any and all acts and things for and on behalf of Licensor,












 



 


	 	 	 
	 

	 	which Licensee may deem reasonably necessary or advisable to maintain, protect, realize upon and preserve the Collateral and
Licensee’s security interest therein and to accomplish the
purposes of the security interest granted Licensee hereunder, it
being understood and agreed that prior to execution of the
Intercreditor Agreement, Licensee shall take no action described
in clauses (b) and (c), or any other action to enforce the
Obligations or otherwise realize on the Collateral. Licensee
agrees that, except upon and following Licensee’s termination of
the License in accordance with Section 21, or the rejection of
the License in a Licensor bankruptcy case under the Bankruptcy
Code, it shall not exercise the power of attorney, or any rights
granted to Licensee, pursuant to clauses (b) and (c). The
foregoing power of attorney is coupled with an interest and
irrevocable so long as the Obligations have not been paid and
performed in full. Licensor hereby ratifies, to the extent
permitted by law, all that Licensee shall lawfully and in good
faith do or cause to be done by virtue of and in compliance with
this Section 22.
	 
	 	 
	23. Limitation of Liability:

	 	EXCEPT TO THE EXTENT (a) THAT A PARTY
IS OBLIGATED TO INDEMNIFY THE OTHER
PARTY FOR THIRD PARTY CLAIMS OF
INTELLECTUAL PROPERTY INFRINGEMENT OR
MISAPPROPRIATION, OR (b) LICENSOR IS
OBLIGATED FOR LIQUIDATED DAMAGES (AS
SUCH TERM IS DEFINED IN SECTION 21),
IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR INCIDENTAL,
SPECIAL OR CONSEQUENTIAL OR PUNITIVE
DAMAGES OF ANY KIND, OR FOR THE LOSS
OF ANTICIPATED PROFITS, EVEN IF
NOTIFIED OF THE POSSIBILITY OF SUCH
DAMAGES AND REGARDLESS OF WHETHER ANY
REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE.
	 
	 	 
	24. Entire Agreement:

	 	This License constitutes the entire
agreement between the parties with
respect to the subject matter hereof.
Any modification of this License must
be in writing and signed by both
parties hereto.
	 
	 	 
	25. Assignment & Sublicensing:

	 	Licensee shall not assign any or all
of the rights granted hereunder
without the written approval of
Licensor (which approval Licensor
shall not unreasonably withhold, delay
or condition), except that Licensee
may, upon written notice to Licensor,
assign or sublicense its rights and
duties under this Agreement to any
corporate entity that controls, is
controlled by or is under the common
control of Licensee. Except as set
forth above, Licensee shall not have
the right to sublicense all or any of
the rights granted hereunder without
the written approval of Licensor
(which approval Licensor shall not
unreasonably withhold, delay or
condition), except that (a) Licensee
shall have the right to sublicense the
right to publish and distribute the
Licensed Products on the Wireless
Platform as set forth in Section 9 and
(b) Licensee may grant third parties
the right to exercise the rights
granted to Licensee hereunder for the
development, manufacturing,
distribution, publishing, advertising,
marketing and/or sale of the Licensed
Products; provided, however,












 



 


	 	 	 
	 

	 	if any such grant constitutes a de facto assignment, Licensee
must obtain Licensor’s approval of such grant in accordance with
the foregoing provisions of this Section; provided further that
Licensee shall not grant any sublicenses to any third party to
develop Licensed Products based on the Franchise for such third
party’s benefit as publisher; and provided further that Licensee
shall not be relieved of its responsibility hereunder and any
such third party shall be bound by the terms of this License in
performing its obligations. Any assignment or sublicense by
Licensee hereunder shall not relieve Licensee of its obligations
to Licensor. This License shall be binding upon and shall inure
to the benefit of the respective successors and assigns of each
party.
	 
	 	 
	26. Binding Agreement:

	 	The present License is intended to create a
legally binding relationship between the
parties.
	 
	 	 
	27. Interpretation:

	 	Section headings are included in this License
solely for convenience and are not intended to
affect interpretation of any provision of this
License.
	 
	 	 
	28. Waiver, Remedies:

	 	No waiver by any party of any term or
condition of this License shall be construed
to be a waiver of such term or condition in
the future, or of any preceding or subsequent
breach of the same or any other term or
condition of this License or any other
agreement, nor shall any such waiver be
binding unless written. All remedies, rights,
undertakings, obligations and agreements
contained in this License shall be cumulative,
and none of them shall be in limitation of any
other remedy, right, undertaking, obligation
or agreement of any party to this License.
	 
	 	 
	29. Severability:

	 	Any provision of this License that is found by
a court of competent jurisdiction to be void,
invalid or unenforceable shall be curtailed
and limited only to the extent necessary to
bring such provision within the requirements
of the law, and such finding and curtailment
shall not affect the validity or
enforceability of any other provision of this
License.
	 
	 	 
	30. Revival and
Reinstatement of the
Licensor Obligations:

	 	If the incurrence or payment of Obligations by the Licensor
or the transfer to the Licensee of any property should for any reason subsequently be
declared to be void or voidable under any state or federal law relating to creditors’
rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences, or other voidable or recoverable payments of money or transfers of property
(collectively, a “Voidable Transfer”), and if the Licensee is required to repay or
restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the
reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount
thereof that the Licensee is required or elects to repay or restore, and as to all
reasonable costs, expenses, and attorneys fees of the Licensee related












 



 


	 	 	 
	 

	 	thereto, the liability of the Licensor, and the grant of security
interest hereunder, automatically shall be revived, reinstated,
and restored and shall exist as though such Voidable Transfer had
never been made.
	 
	 	 
	31. Notices:

	 	All notices, statements and other documents, and all approvals or consents that any
party is required or desires to give to any other party, shall be given in writing and shall
be served in person, by express mail, by certified mail, by overnight delivery, or by
facsimile at the respective addresses set forth below, or at such other addresses as may be
designated by such party.
	 
	 	 
	 

	 	If to Licensor
	 
	 	 
	 

	 	     Atari, Inc.
	 

	 	     417 Fifth Avenue
	 

	 	     New York, New York 10016
	 

	 	     Attention: Legal Affairs
	 

	 	     Fax: 212.726.4214
	 
	 	 
	 

	 	With a copy to:
	 
	 	 
	 

	 	     Milbank, Tweed, Hadley & McCloy LLP
	 

	 	     1 Chase Manhattan Plaza
	 

	 	     New York, New York 10005
	 

	 	     Attention: Thomas C. Janson
	 
	 	 
	 

	 	     Facsimile: (212) 530-5219
	 
	 	 
	 

	 	If to Licensee
	 
	 	 
	 

	 	     Infogrames Entertainment SA
	 

	 	     1 Place Verrazzano
	 

	 	     69252 Lyon Cedex 09
	 

	 	      France
	 

	 	     Attention: Legal Affairs
	 
	 	 
	 

	 	     Fax: +33 (0)4 37 64 30 95
	 
	 	 
	 

	 	With a copies to:
	 
	 	 
	 

	 	      VEIL JOURDE
	 

	 	     38, Rue de Lisbonne
	 

	 	     75008 Paris
	 

	 	     France
	 

	 	     Attention: Emmanuel Rosenfeld
	 
	 	 
	 

	 	     Fax: +33 (0)1 53 53 94 94
	 
	 	 
	 

	 	and












 



 


	 	 	 
	 

	 	     Morrison & Foerster LLP
	 

	 	     1290 Avenue of the Americas
	 

	 	     New York, New York 10104-0050
	 

	 	     United States
	 

	 	     Attention: Michael B. Miller
	 
	 	 
	 

	 	      Fax: (212) 468-7900
	 
	 	 
	 

	 	Delivery shall be deemed conclusively made (i) at the time of
service, if personally served, (ii) five days after deposit in
the United States mail, properly addressed and postage prepaid,
if delivered by express mail or certified mail, (iii) upon
confirmation of delivery by the private overnight deliverer, if
served by overnight delivery, and (iv) at the time of electronic
transmission (with successful transmission confirmation),
provided a copy is mailed within 24 hours after such
transmission.






[The Next Page Is The Signature Page]










 



 


AGREED TO AND ACCEPTED:




	 	 	 	 	 	 	 	 	 
	ATARI, INC.	 	 	 	INFOGRAMES ENTERTAINMENT S.A.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Curtis G. Solsvig
	 	 	 	By:
	 	/s/ Patrick Leleu
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:
	 	Leleu Patrick
	 

	 	 
	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Title:
	 	CEO