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 20th 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 20th 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.


 


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3.                                       Representations
and Warranties.  Borrower
represents and warrants as follows:


 


(a)                                  Authority.  Borrower has the requisite corporate power
and authority to execute and deliver this Amendment, and to perform its
obligations hereunder and under the Loan Documents (as amended or modified
hereby) to which it is a party.  The
execution, delivery and performance by Borrower of this Amendment have been
duly approved by all necessary corporate action and no other corporate
proceedings are necessary to consummate such transactions.


 


(b)                                 Enforceability.  This Amendment has been duly executed and
delivered by Borrower.  This Amendment
and each Loan Document to which Borrower is a party (as amended or modified
hereby) is the legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, and is in full force and effect.


 


(c)                                  Representations
and Warranties.  The
representations and warranties contained in each Loan Document to which
Borrower is a party (other than any such representations or warranties that, by
their terms, are specifically made as of a date other than the date hereof) are
correct on and as of the date hereof as though made on and as of the date
hereof.


 


(d)                                 Due Execution.  The execution, delivery and performance of
this Amendment are within the power of Borrower, have been duly authorized by
all necessary corporate action, have received all necessary governmental
approval, if any, and do not contravene any law or any contractual restrictions
binding on Borrower.


 


(e)                                  No Default.  No event has occurred and is continuing that
constitutes an Event of Default.


 


4.                                       Choice of Law.  The validity of this Amendment, its
construction, interpretation and enforcement, the rights of the parties
hereunder, shall be determined under, governed by, and construed in accordance
with the internal laws of the State of California, without giving effect to any
conflict of law principles (but giving effect to Federal laws relating to
national banks).  The consent to forum
and arbitration provisions set forth in Section 14.15 of the Loan
Agreement are hereby incorporated in this Amendment by reference.


 


5.                                       Counterparts.  This Amendment may be executed in any number
of counterparts and by different parties and separate counterparts, each of
which when so executed and delivered, shall be deemed an original, and all of
which, when taken together, shall constitute one and the same instrument.  Delivery of an executed counterpart of a
signature page to this Amendment by telefacsimile or a substantially
similar electronic transmission shall have the same force and effect as the
delivery of an original executed counterpart of this Amendment.  Any party delivering an executed counterpart
of this Amendment by telefacsimile or a substantially similar electronic
transmission shall also deliver an original executed counterpart, but the
failure to do so shall not affect the validity, enforceability or binding
effect of such agreement.


 


6.                                       Reference to
and Effect on the Loan Documents.


 


(a)                                  Upon and after
the effectiveness of this Amendment, each reference in the Loan Agreement to “this
Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan
Agreement, and each reference in the other Loan Documents to “the Loan
Agreement”, “thereof” or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as modified and amended
hereby.


 


(b)                                 Except as
specifically amended above, the Loan Agreement and all other Loan Documents are
and shall continue to be in full force and effect and are hereby in all
respects ratified and 


 


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confirmed and shall
constitute the legal, valid, binding and enforceable obligations of Borrower to
Agent and the Lenders.


 


(c)                                  The execution,
delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of Agent or
any Lender under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.


 


(d)                                 To the extent
that any terms and conditions in any of the Loan Documents shall contradict or
be in conflict with any terms or conditions of the Loan Agreement, after giving
effect to this Amendment, such terms and conditions are hereby deemed modified
or amended accordingly to reflect the terms and conditions of the Loan
Agreement as modified or amended hereby.


 


7.                                       Ratification.  Borrower hereby restates, ratifies and
reaffirms each and every term and condition set forth in the Loan Agreement, as
amended hereby, and the Loan Documents effective as of the date hereof.


 


8.                                       Estoppel.  To induce Lenders to enter into this
Amendment and to continue to make advances to Borrower under the Loan
Agreement, Borrower hereby acknowledges and agrees that, as of the date hereof,
there exists no right of offset, defense, counterclaim or objection in favor of
Borrower as against Agent or any Lender with respect to the Obligations.


 


9.                                       Integration.  This Amendment, together with the other Loan
Documents, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.


 


10.                                 Severability.  In case any provision in this Amendment shall
be invalid, illegal or unenforceable, such provision shall be severable from
the remainder of this Amendment and the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


[Remainder of Page Left
Intentionally Blank]


 


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IN WITNESS WHEREOF, the parties have entered
into this Amendment as of the date first above written.


 


	
  BORROWER

  	
   

  
	
   

  	
   

  
	
  THC
  INC., a Delaware corporation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Paul J. Pucino 

  	
   

  	
   

  
	
  Name:

  	
  Paul J. Pucino 

  	
   

  	
   

  
	
  Title:

  	
  CFO & Executive
  Vice President

  	
   

  	
   

  



 


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  AGENT AND LENDERS

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A.,

  as Agent and as sole Lender

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Bobby P.S. Bans 

  	
   

  	
   

  
	
  Name: Bobby P.S. Bans 

  	
   

  
	
  Title: Vice President

  	
   

  
				



 


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ACKNOWLEDGEMENT BY
GUARANTORS


 


Dated as of January 21, 2010


 


Each of the undersigned, being a Guarantor
(each a “Guarantor” and, collectively, the “Guarantors”) under
that certain Guaranty and Security Agreement dated as of June 30, 2009
made in favor of Agent (“Guaranty”), hereby acknowledges and agrees to
the foregoing First Amendment to Loan and Security Agreement and Waiver (the “Amendment”)
and confirms and agrees that the Guaranty is and shall continue to be, in full
force and effect and is hereby ratified and confirmed in all respects except
that, upon the effectiveness of, and on and after the date of the Amendment,
each reference in such Guaranty to the Loan Agreement (as defined in the
Amendment), “thereunder”, “thereof” or words of like import referring to the “Loan
Agreement”, shall mean and be a reference to the Loan Agreement as amended or
modified by the Amendment.  Although
Agent has informed Guarantors of the matters set forth above, and each
Guarantor has acknowledged the same, each Guarantor understands and agrees that
Agent has no duty under the Loan Agreement, the Guaranty or any other agreement
with any Guarantor to so notify any Guarantor or to seek such an
acknowledgement, and nothing contained herein is intended to or shall create
such a duty as to any advances or transaction hereafter.


 


 


	
   

  	
  LOCOMOTIVE GAMES, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Teri Manby

  
	
   

  	
  Name:

  	
  Teri
  Manby

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  
	
   

  	
  RAINBOW MULTIMEDIA GROUP, INC.,

  
	
   

  	
  an
  Arizona corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Teri Manby

  
	
   

  	
  Name:

  	
  Teri
  Manby

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  
	
   

  	
  VIGIL GAMES, INC.,

  
	
   

  	
  a
  Texas corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Teri Manby

  
	
   

  	
  Name:

  	
  Teri
  Manby

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  
	
   

  	
  VOLITION, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Teri Manby

  
	
   

  	
  Name:

  	
  Teri
  Manby

  
	
   

  	
  Title:

  	
  CFO

  



 


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  THQ MARYLAND, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Teri Manby

  
	
   

  	
  Name:

  	
  Teri
  Manby

  
	
   

  	
  Title:

  	
  CFO

  



 


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SCHEDULE 10.2.1(l)


to


Loan and Security Agreement


 


Guarantees arising under
limited-duration overdraft or ACH lines


 


	
  Foreign Subsidiary

  	
   

  	
  Amount

  	
   

  
	
  THQ (UK) Limited

  	
   

  	
  $

  	
  7,500,000

  	
   

  
	
  THQ France Sarl

  	
   

  	
  4,000,000

  	
   

  
	
  THQ International GmbH

  	
   

  	
  1,000,000

  	
   

  
	
  THQ Interactive
  Entertainment Espana Srl

  	
   

  	
  500,000

  	
   

  
	
  THQ Italy Srl

  	
   

  	
  500,000

  	
   

  
					



 


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