Exhibit 10.18
FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT (this “ Amendment ”),
dated as of January 21, 2010 is entered into by and among the
financial institutions signatory hereto (each a “
Lender ” and collectively the “ Lenders
”), BANK OF AMERICA, N.A. , as Agent for the Lenders
(in such capacity, “ Agent ”) and THQ
INC. , a Delaware corporation (“ Borrower
”).
RECITALS
A.
Borrower, Agent and the Lenders have
previously entered into that certain Loan and Security Agreement
dated as of June 30, 2009 (as amended, supplemented, restated
and modified from time to time, the “ Loan Agreement
”), pursuant to which the Lenders have made certain loans and
financial accommodations available to Borrower. Terms used
herein without definition shall have the meanings ascribed to them
in the Loan Agreement.
B.
Borrower has requested that Agent
and the Lenders amend the Loan Agreement, which Agent and the
Lenders are willing to do pursuant to the terms and conditions set
forth herein.
C.
Borrower is entering into this
Amendment with the understanding and agreement that, except as
specifically provided herein, none of Agent’s or any
Lender’s rights or remedies as set forth in the Loan
Agreement is being waived or modified by the terms of this
Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants herein contained, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as
follows:
1.
Amendments to Loan
Agreement .
(a)
Section 6.3 of the Loan
Agreement is hereby amended by: (1) deleting the
“and” at the end of clause (e) of such Section,
(2) deleting the “.” at the end of clause
(f) of such Section and replacing it with a “;
and” in lieu thereof, and (3) adding the following
clause (g) to the end of such Section:
“(g)
If a then current Borrowing Base
Certificate has not been received by Agent in the 30 days prior to
such funding, issuance or grant, Agent shall have received a
current Borrowing Base Certificate in form and substance
satisfactory to Agent.”
(b)
The first sentence of
Section 8.1 of the Loan Agreement is hereby amended and
replaced with the following:
“By the 20th day of the Fiscal
Month following the last day of each Fiscal Quarter, Borrowers
shall deliver to Agent (and Agent shall promptly deliver same to
Lenders) a Borrowing Base Certificate prepared as of the close of
business on the last day of the previous Fiscal Quarter, and at
such other times as Agent may reasonably request; provided ,
however , that Borrowers shall deliver to Agent (and Agent
shall promptly deliver same to Lenders) such Borrowing Base
Certificates on a monthly basis by the 20 th day of each Fiscal Month (prepared as of
the close of business on the last day of the previous Fiscal Month)
at all times after (a) Borrowers have requested any
Revolver
Loans or Letters of Credit or
(b) the Liquidity Amount as of the end of any Fiscal Month is
less than the Target Liquidity Amount for such Fiscal
Month.”
(c)
The second sentence of
Section 8.2.1 of the Loan Agreement is hereby amended and
replaced with the following:
“By the 20th day of the Fiscal
Month following the last day of each Fiscal Quarter, Borrowers
shall deliver to Agent a detailed aged trial balance of all
Accounts prepared as of the close of business on the last day of
the previous Fiscal Quarter, specifying each Account’s
Account Debtor name and address, amount, invoice date and due date,
showing any discount, allowance, credit, authorized return or
dispute, and including such supporting information (proof of
delivery, copies of invoices and invoice registers, copies of
related documents, repayment histories, status reports and other
information) as Agent may reasonably request; provided ,
however , that Borrowers shall deliver to Agent such
detailed aged trial balances of all Accounts, including such
supporting information as Agent may reasonably request, on a
monthly basis by the 20 th day of each Fiscal Month (prepared as of
the close of business on the last day of the previous Fiscal Month)
at all times after (a) Borrowers have requested any Revolver
Loans or Letters of Credit or (b) the Liquidity Amount as of
the end of any Fiscal Month is less than the Target Liquidity
Amount for such Fiscal Month.”
(d)
Section 10.2.1(l) of the
Loan Agreement is hereby amended and restated in its entirety to
read as follows:
“(l)
Debt (including guarantees by any
Borrower of Foreign Subsidiaries’ obligations) arising under
limited-duration overdraft or ACH lines, so long as (i) the
agreements documenting such Debt have been delivered to Agent and
are listed on Schedule 10.2.1(l) (as the same may be
updated in writing by Borrowers on a quarterly basis), and
(ii) the amount of all such Debt does not exceed $15,000,000
in the aggregate at any time; and”
(e)
Schedule 10.2.1(l) attached
hereto is hereby attached as Schedule 10.2.1(l) to the Loan
Agreement.
2.
Effectiveness of this
Amendment . The
following shall have occurred before this Amendment is
effective:
(a)
Amendment . Agent shall have received this Amendment
fully executed in a sufficient number of counterparts for
distribution to all parties.
(b)
Representations and
Warranties . The
representations and warranties set forth herein must be true and
correct.
(c)
No Default
. No event has occurred and is
continuing that constitutes an Event of Default.
(d)
Other Required
Documentation. All
other documents and legal matters in connection with the
transactions contemplated by this Amendment shall have been
delivered or executed or recorded and shall be in form and
substance satisfactory to Agent.
2
3.
Representations and
Warranties .
Borrower represents and warrants as follows:
(a)
Authority . Borrower has the requisite corporate
power and authority to execute and deliver thi
