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 rep
