Letterhead of Wells Fargo Capital Finance, LLC]
Exhibit 10.1
[Letterhead of Xxxxx Fargo Capital Finance, LLC]
Effective November 30, 2012
Mad Catz, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Suite 101
San Diego, CA
92108
Dear Sirs/Mesdames:
| Re: | Fourth Amended and Restated Credit Agreement dated August 1, 2012 and as amended by a letter agreement dated October 31, 2012 (as amended, modified, supplemented, extended, renewed, restated or replaced from time to time, the “Credit Agreement”) between Xxxxx Fargo Capital Finance, LLC, (“Xxxxx Fargo”), Mad Catz, Inc. (the “Borrower”) and the Obligors party thereto. Capitalized terms not otherwise defined in this Agreement shall have the meanings given to them in the Credit Agreement unless stated otherwise. |
You have requested that Xxxxx Fargo amend the Credit Agreement as set out herein.
| 1. | Amendments to Credit Agreement |
| (a) | Section 8.24 (EBITDA) of the Credit Agreement is hereby deleted and replaced with the following: |
“8.24 EBITDA
Intentionally deleted.”
| (b) | Section 8.25 (Excess Availability) of the Credit Agreement is hereby deleted and replaced with the following: |
“8.25 Excess Availability
Borrower shall maintain Excess Availability of not less than $3,000,000 at all times starting January 1, 2013.”
| (c) | This Agreement is an amendment to the Credit Agreement. Unless the context of this Agreement otherwise requires, the Credit Agreement and this Agreement shall be read together and shall have effect as if the provisions of the Credit Agreement and this Agreement were contained in one agreement. The term “Agreement” when used in the Credit Agreement means the Credit Agreement as amended by this Agreement, together with all amendments, modifications, supplements, extensions, renewals, restatements and replacements thereof from time to time. |
| (d) | Nothing in this Agreement, nor in the Credit Agreement when read together with this Agreement, shall constitute a novation, payment, re-advance or reduction or termination in respect of any Obligations. |
| 2. | Representations and Warranties |
In order to induce Xxxxx Fargo to enter into this Agreement, the Borrower and each Obligor represent and warrant to Xxxxx Fargo as follows, which representations and warranties shall survive the execution and delivery of this Agreement:
| (a) | After giving effect to this Agreement: |
| (i) | all of the representations and warranties in the Credit Agreement and the other Financing Agreements are true and correct as of the date hereof; |
| (ii) | each of the Borrower and the Obligors is in compliance with all the covenants contained in the Credit Agreement and the other Financing Agreements; |
| (iii) | no Default or Event of Default exists or is continuing; |
| (b) | the execution, delivery and performance of this Agreement and the transactions contemplated hereunder are all within the Borrower’s and each Obligor’s corporate powers, have been duly authorized and are not in contravention of law or the terms of the Borrower’s or each Obligor’s certificate of incorporation, by-laws or other organizational documentation, or any indenture, agreement or undertaking to which the Borrower or an Obligor is a party or by which the Borrower’s or an Obligor’s property is bound; |
| (c) | each of the Borrower and the Obligors have duly executed and delivered this Agreement; and |
| (d) | this Agreement constitutes a legal, valid and binding obligation of the Borrower and each Obligor, enforceable against them by Xxxxx Fargo in accordance with the terms of this Agreement. |
| 3. | General |
| (a) | The Credit Agreement, as amended by this Agreement, shall continue in full force and effect and the rights and obligations of all parties thereunder shall not be affected or prejudiced in any manner except as specifically provided for herein. |
| (b) | It is agreed and confirmed that after giving effect to this Agreement, all security and guarantees delivered by the Borrower and each Obligor secures the payment and performance of all of the Obligations including, without limitation, the obligations, liabilities and indebtedness arising under the Credit Agreement. |
| (c) | The Borrower and each Obligor shall execute and deliver such documents and take such actions as may be necessary or desirable by Xxxxx Fargo to give effect to the provisions and purposes of this Agreement, all at the expense of the Borrower and each Obligor. |
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| (d) | The Borrower agrees to pay Xxxxx Fargo a $5000 amendment fee upon the Borrower’s execution of this Agreement. |
| (e) | The Borrower and each Obligor shall pay all fees, expenses and disbursements including, without limitation, legal fees, incurred by or payable to Xxxxx Fargo in connection with the preparation, negotiation, execution, delivery, review and enforcement of this Agreement and all other documents and instruments arising therefrom and/or executed in connection therewith. |
| (f) | This Agreement may be executed and delivered by facsimile or pdf and in any number of counterparts, each of which when so executed and delivered is an original and all of which taken together constitute one and the same instrument. |
| (g) | This Agreement shall be governed by the laws of the State of Illinois. |
| (h) | This Agreement is a Financing Agreement. |
If the foregoing correctly sets out our agreement, please indicate your acceptance of the terms and conditions of this Agreement by signing below and returning an executed copy to us.
Yours truly,
| XXXXX FARGO CAPITAL FINANCE, LLC | ||||
| Per: | /s/ XXXX X. XXXXXX | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President, Relationship Manager | |||
| MAD CATZ, INC. | MAD CATZ INTERACTIVE, INC. | |||||||||||
| Per: | /s/ XXXXXX XXXXXXXXXX |
Per: | /s/ XXXXXX XXXXXXXXXX | |||||||||
| Name: | Xxxxxx Xxxxxxxxxx | Name: | Xxxxxx Xxxxxxxxxx | |||||||||
| Title: | President & CEO | Title: | President & CEO | |||||||||
| 1328158 ONTARIO INC. | XXXXXXX ATLANTIC HOLDINGS LIMITED | |||||||||||||||
| Per: | /s/ XXXXXX XXXXXXXXXX |
Per: | /s/ XXXXXX XXXXXXXXXX | |||||||||||||
| Name: | Xxxxxx Xxxxxxxxxx | Name: | Xxxxxx Xxxxxxxxxx | |||||||||||||
| Title: | Director | Title: | Director | |||||||||||||
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| MAD CATZ EUROPE LIMITED | MAD CATZ INTERACTIVE ASIA LIMITED | |||||||||||
| Per: | /s/ XXXXXX XXXXXXXXXX |
Per: | /s/ XXXXXX XXXXXXXXXX | |||||||||
| Name: | Xxxxxx Xxxxxxxxxx | Name: | Xxxxxx Xxxxxxxxxx | |||||||||
| Title: | Director | Title: | Director | |||||||||
| FX UNLIMITED, INC. | MAD CATZ GMBH | |||||||||||
| Per: | /s/ XXXXXX XXXXXXXXXX |
Per: | /s/ XXXXXX XXXXXXXXXX | |||||||||
| Name: | Xxxxxx Xxxxxxxxxx | Name: | Xxxxxx Xxxxxxxxxx | |||||||||
| Title: | CEO | Title: | Geschäftsführer | |||||||||
| XXXXXX, X.X. | MAD CATZ TECHNOLOGICAL DEVELOPMENT (SHENZHEN) CO., LTD. | |||||||||||
| Per: | /s/ XXXXXX XXXXXXXXXX |
Per: | /s/ XXXXXXXX XXXXXX | |||||||||
| Name: | Xxxxxx Xxxxxxxxxx | Name: | Xxxxxxxx XXXXXX | |||||||||
| Title: | Director | Title: | Legal Representative | |||||||||
| MAD CATZ CO., LTD. | ||||||||||||
| Per: | /s/ XXXXXX XXXXXXXXXX |
|||||||||||
| Name: | Xxxxxx Xxxxxxxxxx | |||||||||||
| Title: | Director | |||||||||||
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