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FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT

Security Agreement

FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT | Document Parties: BANK OF AMERICA, N.A. | THC INC You are currently viewing:
This Security Agreement involves

BANK OF AMERICA, N.A. | THC INC

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Title: FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Governing Law: California     Date: 6/4/2010
Industry: Software and Programming     Sector: Technology

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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


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