Exhibit 10.3
FIFTH AMENDMENT
TO
AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT
This Amendment,
dated as of November 29, 2004, is entered into by (1) THQ INC., a
Delaware corporation (the “ Borrower
”), (2) UNION BANK OF CALIFORNIA, N.A., as sole lender (the
“ Lender
”), and (3) UNION BANK OF CALIFORNIA, N.A., as administrative
agent (the “ Agent ”)
for the Lender.
Recitals
A.
The Borrower, the Lender and Union Bank of California, N.A., as
Agent and as syndication agent and arranger, are party to an
Amended and Restated Revolving Credit Agreement dated as of
September 27, 2002, as amended by a First Amendment to Amended and
Restated Revolving Credit Agreement dated November 21, 2002, a
Second Amendment to Amended and Restated Revolving Credit Agreement
and Third Amendment to Security Agreement dated as of May 30, 2003,
a Third Amendment to Amended and Restated Revolving Credit
Agreement dated September 26, 2003 and a letter-form amendment
dated August 25, 2004 (said Amended and Restated Revolving Credit
Agreement, as so amended, herein called the “
Credit
Agreement ”). Terms defined in the
Credit Agreement and not otherwise defined herein have the same
respective meanings when used herein, and the provisions of
Sections 1.2 and 1.3 of the Credit Agreement are
incorporated herein by reference.
B.
The Borrower, the Lender and the Agent wish to amend the Credit
Agreement to, among other things, extend the Commitment Termination
Date and change the maximum Facility Amount. Accordingly, the
Borrower, the Lender and the Agent hereby agree as set forth
below.
Section 1. Amendments to
Credit Agreement. Effective as of the date hereof but
subject to satisfaction of the conditions precedent set forth in
Section 2, the Credit Agreement is hereby amended as set forth
below.
(a)
Section 1.1 of the Credit Agreement is amended by deleting the
definitions of “Fee Letter,” “Inventory,”
“Operating Profit” and “Security
Agreement.”
(b)
The definitions of “Advance Sublimit,”
“Collateral,” “Commitment Termination
Date,” “Credit Documents” and “Facility
Amount” in Section 1.1 of the Credit Agreement are amended in
full to read as follows:
“‘ Advance Sublimit ’
means, for each calendar month, zero.”
“‘ Collateral ’ means
any collateral securing the Obligations from time to
time.”
“‘ Commitment Termination
Date ’ means November 29, 2006.”
“‘ Credit Documents ’
means this Agreement, any Notes outstanding from time to time, the
Letter of Credit Documents and any other documents executed by the
Borrower or any other Credit Party from time to time with respect
to the subject matter of this Agreement.”
“‘ Facility Amount ’
means (a) for each August, September and October, $40,000,000 and
(b) for each other calendar month, $12,000,000.”
(c)
Section 2.2 of the Credit Agreement is amended in full to read as
follows:
“ Section 2.2
Fees.
(a)
The Borrower will pay to the Agent, promptly upon demand thereby,
for the account of the Lenders or the Issuing Bank, as applicable,
the fees and charges specified in UBOC’s standard schedule of
fees with respect to letters of credit; provided ,
however , that the fees specified in Schedule 1 shall be
paid by the Borrower or waived by the Issuing Bank, as applicable,
in lieu of the Borrower’s payment of the comparable fees
specified in such standard schedule of fees.
(b)
The Borrower will pay to the Agent, for the account of the Lenders,
from November 29, 2004 until the Commitment Termination Date, an
unused-commitment fee at the rate of *****% per annum on the actual daily
amount by which the Facility Amount exceeds the sum of the
aggregate face amount of all Letters of Credit outstanding.
Such fee shall be payable quarterly in arrears on the 10th day of
each January, April, July and October, commencing on January 10,
2005, with respect to the calendar quarter ended as of the last day
of the preceding month in each case, and on the 10th day after the
last Letter of Credit outstanding hereunder has expired.
(c)
The Borrower will pay to the Agent, for the account of the Lenders,
an annual commitment fee of *****, payable on November 29, 2004 and
on each anniversary thereof.”
(d)
Section 2.9(a) of the Credit Agreement is amended by deleting the
word “Inventory” and substituting
“inventory.”
***** Confidential
portion omitted and filed separately with the Securities and
Exchange Commission.
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(e)
Section 5.5 of the Credit Agreement is amended in full to read as
follows:
“ Section 5.5 Financial
Information . The consolidated balance sheet of the
Borrower and its Subsidiaries as of March 31, 2004, and the related
consolidated statements of income and retained earnings of the
Borrower and its Subsidiaries for the fiscal year then ended,
certified by Deloitte & Touche LLP, independent public
accountants, fairly present the consolidated financial condition of
the Borrower and its Subsidiaries as of such date and the
consolidated results of the operations of the Borrower and its
Subsidiaries for the fiscal year ended on such date, all in
accordance with GAAP applied on a consistent basis. The
unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of September 30, 2004, and the related
unaudited consolidated statements of income and retained earnings
of the Borrower and its Subsidiaries for the 6-month fiscal period
ended on such date, certified by the Chief Financial Officer of the
Borrower as having been prepared in accordance with GAAP (subject
to normal year-end audit adjustments and the absence of footnotes),
fairly present the consolidated financial condition of the Borrower
and its Subsidiaries as of such date and the consolidated results
of the operations of the Borrower and its Subsidiaries for the
6-month fiscal period ended on such date. Since
September 30, 2004 there has been no material adverse change
in the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole. The Borrower and its
Subsidiaries taken as a whole have no material contingent
liabilities except as disclosed in such consolidated balance sheet
or the notes thereto.”
(f)
Section 5.7 of the Credit Agreement is amended in full to read as
follows:
“ Section 5.7
Litigation . Except for matters (the ‘
Disclosed Matters ’) disclosed in the Borrower’s
reports filed with the Securities and Exchange Commission up to and
including November 29, 2004, there is no action, suit,
investigation, litigation or proceeding affecting the Borrower or
any Subsidiary pending or, to the best knowledge of the Borrower,
threatened before any Governmental Person, arbitrator or referee
(a) that individually or in the aggregate could reasonably be
expected to have a material and adverse effect on the business,
condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken
as a whole or (b) that purports to affect the legality, validity or
enforceability of this Agreement or any other Credit Document or
the consummation of the transactions contemplated hereby or
thereby. Since November 29, 2004, there has been no change in
the status of the Disclosed Matters that individually or in the
aggregate has resulted in, or materially increased the likelihood
of, a material and adverse effect on the business, condition
(financial or otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries taken as a
whole.”
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(g)
Section 6.1(a)(iii) of the Credit Agreement is amended in full to
read as follows:
“(iii)
together with the information provided pursuant to Sections
6.1(a)(i) and (ii), in form and scope satisfactory to the Agent and
commencing with the fiscal period ending on December 31, 2004, a
“Software Development Schedule” in the form customarily
delivered to UBOC before the date of this Agreement; and together
with the information provided pursuant to Section 6.1(a)(ii), in
form and scope satisfactory to the Agent, (A) a schedule showing
the aging of the accounts receivable of the Borrower and its
Subsidiaries for the relevant period, including details of any
charges against reserves and of current reserves, and (B) a report
concerning the inventory of the Borrower and its Subsidiaries for
the relevant period, including details as to any write-downs or
returns;.”
(h)
Clause (v) of the proviso contained in Section 6.2(g) of the Credit
Agreement is amended in full to read as follows:
“(v)
the Borrower may re
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