Exhibit 10.37


 


EXECUTION VERSION


 


AMENDMENT NO. 1 AND ACKNOWLEDGEMENT
TO AMENDED


AND RESTATED LOAN AND SECURITY AGREEMENT


 


This Amendment
No. 1 and Acknowledgement to Amended and Restated Loan and Security Agreement (this "Amendment"), dated as of
November 3, 2009, is made by LeapFrog Enterprises, Inc., a Delaware corporation (the "Borrower"), the Required
Lenders (as such term is defined in the Loan Agreement referred to below) party hereto, and Bank of America, N.A., as Agent (the
"Agent").


 


RECITALS


 


Reference is hereby
made to the Amended and Restated Loan and Security Agreement dated as of August 13, 2009 among the Borrower, the Lenders from time
to time party thereto and the Agent (the "Loan Agreement").


 


The parties hereto
agree, among other things, to amend the Loan Agreement as set forth herein on the terms and conditions set forth herein.


 


AGREEMENT


 


NOW THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agree as follows:


 


1.           Definitions.
Unless otherwise expressly defined herein, all capitalized terms used herein and defined in the Loan Agreement shall be used herein
as so defined. Unless otherwise expressly stated herein, all Section references herein shall refer to Sections of the Loan Agreement.


 


2.           Amendments
to Loan Agreement.


 


(a)          The
definition of "Compliance Certificate" in Section 1.1 is amended by replacing the words "Sections 10.2.3 and
10.3" with the words "Section 10.3".


 


(b)          The
definition of "Permitted Purchase Money Debt" in Section 1.1 is amended by deleting the words "and its incurrence
does not violate Section 10.2.3".


 


(c)          Section
10.2.1 is amended by (1) designating existing subsection (q) as new subsection (r) and (2) inserting new subsection (q) to read
as follows:


 


"(q)
Debt consisting of the financing of insurance premiums in an aggregate amount not to exceed $2,500,000 at any time; and".


 


3.            Acknowledgment.
The Required Lenders hereby acknowledge that no Default or Event of Default arose as a result of the Borrower's entering into (i)
that certain Commercial Insurance Premium Finance and Security Agreement dated as of August 25, 2009 between the Borrower and BankDirect
Capital Finance, LLC and (ii) that certain Commercial Insurance Premium Finance and Security Agreement dated as of September 24,
2009 between the Borrower and BankDirect Capital Finance, LLC.


 



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EXECUTION VERSION


 


4.          Conditions
Precedent. This Amendment shall become effective as of the date first above written (the "Amendment No. 1 Effective
Date") if on or before November 3, 2009, (a) the Agent shall have received counterparts of this Amendment executed by
the Borrower and the Required Lenders (or, as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed
this Amendment); and (b) all fees and expenses due and payable under the Loan Agreement shall have been paid.


 


5.          Representations
and Warranties. The Borrower hereby represents and warrants to the Agent and the Lenders that, as of the Amendment No. 1 Effective
Date and after giving effect to this Amendment, (a) all representations and warranties set forth in the Loan Documents are true
and correct in all material respects as if made again on and as of the Amendment No. 1 Effective Date (except for those which
by their terms specifically refer to an earlier date, in which case such representations and warranties shall be true and correct
in all material respects as of such earlier date), (b) no Default or Event of Default has occurred and is continuing and (c) the
Loan Agreement (as amended by this Amendment) and all other Loan Documents are and remain legal, valid, binding and enforceable
obligations of the Obligors in accordance with the trems thereof except as may be limited by bankruptcy,  insolvencv,
accordance Will the terms theror except as by bankruptcy,reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles (regardless of whether enforcement is sought in equity or at law).


 


6.          Reference
to Agreement. Each of the Loan Documents, including the Loan Agreement, and any and all other agreements, documents or instruments
now or hereafter executed and/or delivered pursuant to the terms hereof or pursuant to the terms of the Loan Agreement as amended
hereby, are hereby amended so that any reference in such Loan Documents to the Loan Agreement, whether direct or indirect, shall
mean a reference to the Loan Agreement as amended hereby. This Amendment shall constitute a Loan Document.


 


7.          Costs
and Expenses. The Company shall pay on demand all reasonable costs and expenses of the Agent and the Lenders (including the
reasonable fees, costs and expenses of counsel to the Agent and the Lenders) incurred in connection with the preparation, execution
and delivery of this Amendment.


 


8.          Governing
Law. This Amendment shall be construed in accordance with and governed by the laws of the State of California.


 


9.          Execution.
This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.


 


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left blank.]


 



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IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized
as of the date first written above.


 


	 	LEAPFROG ENTERPRISES, INC.,
	 	as Borrower
	 	 
	 	By:	/s/
    William B. Chiasson
	 	 	Name: WILLIAM B. CHIASSON
	 	 	Title: CFO


 


Amendment No. 1 and Acknowledgement to Amended
and Restated Loan and Security Agreement


 



    	 



    	 



    

 


	 	BANK OF AMERICA, N.A.,
	 	as Agent and Lender
	 	 
	 	By:	/s/ Steven W.Sharp
	 	 	Name: STEVEN W.SHARP
	 	 	Title:  VICE PRESIDENT


 


Amendment No. 1 and Acknowledgement to Amended
and Restated Loan and Security Agreement


 



    	 



    	 



    

 


	 	WACHOVIA CAPITAL FINANCE

CORPORATION (WESTERN),
	 	as Lender
	 	 
	 	By:	/s/ Robin Van Meter
	 	 	Name: Robin Van Meter 
	 	 	Title:  Vice President


 


Amendment No. 1 and Acknowledgement to Amended
and Restated Loan and Security Agreement