Activision Blizzard, Inc.
Activision Blizzard, Inc. (Form: 8-K, Received: 12/14/2015 16:43:58)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 


 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of report (Date of earliest event reported):  December 14, 2015 (December 14 , 2015)

 

ACTIVISION BLIZZARD, INC.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

 

001-15839

 

95-4803544

(State or Other Jurisdiction of
Incorporation)

 

(Commission File Number)

 

(IRS Employer
Identification No.)

 

3100 Ocean Park Boulevard,
Santa Monica, CA

 

90405

(Address of Principal Executive
Offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code:  (310) 255-2000

 

 

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

o                  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o                  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o                  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o                  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01.                                         Entry into a Material Definitive Agreement.

 

On December  14 , 2015, Activision Blizzard, Inc. (the “ Company ”) entered into the Third Amendment (the “ Amendment ”) to the Credit Agreement, dated as of October 11, 2013 (as amended by the First Amendment, dated as of November 2, 2015, the Second Amendment, dated as of November 13, 2015 and the Amendment, the “ Credit Agreement ”), among the Company, as borrower, the guarantors from time to time party thereto, the lenders from time to time party thereto (the “ Lenders ”), Bank of America, N.A., as administrative agent and collateral agent for the Lenders, and the several other agents party thereto, primarily to replace, as of the 2015 Revolving Credit Facility Effective Date (as defined in the Amendment), the Company’s existing revolving credit facility under the Credit Agreement (as in effect prior to the 2015 Revolving Credit Facility Effective Date (as defined in the Amendment), the “ Existing Credit Agreement ”) in an aggregate principal amount of $250,000,000 (the “ Existing Revolving Credit Facility ”) with a new revolving credit facility under the Credit Agreement in the same aggregate principal amount (the “ 2015 Revolving Credit Facility ”).

 

Borrowings under the 2015 Revolving Credit Facility may be borrowed, repaid and re-borrowed by the Company and will be available for working capital and other general corporate purposes.  Up to $50 million of the 2015 Revolving Credit Facility may be used for letters of credit.

 

The 2015 Revolving Credit Facility is scheduled to mature on October 11, 2020.  Borrowings under the 2015 Revolving Credit Facility will bear interest, at the Company’s option, at either (a) a base rate equal to the highest of (i) the federal funds rate, plus 1/2 of 1%, (ii) the prime commercial lending rate of Bank of America, N.A. and (iii) the London Interbank Offered Rate (“ LIBOR ”) for an interest period of one month beginning on such day plus 1.00%, or (b) LIBOR, in each case, plus an applicable interest margin.  LIBOR will be subject to a floor of 0% and base rate will be subject to an effective floor of 1.00%.  The applicable interest margin for borrowings under the 2015 Revolving Credit Facility will range from 1.50% to 2.25% for LIBOR borrowings and from 0.50% to 1.25% for base rate borrowings and will be determined by reference to a pricing grid based on the Company’s Consolidated Total Net Debt Ratio (as defined in the Credit Agreement).

 

Prior to the 2015 Revolving Credit Facility Effective Date (as defined in the Amendment), the Revolving Credit Facility (as defined in the Credit Agreement) is subject to a financial maintenance covenant requiring the Company to maintain a maximum Consolidated Secured Debt Ratio (as defined in the Credit Agreement) of 2.50:1.00 to the extent that its obligations under the Revolving Credit Facility (as defined in the Credit Agreement) (subject to certain exclusions for letters of credit) exceeded 15% of the total facility amount as of the end of any fiscal quarter.  The Amendment will eliminate this financial covenant on the first calendar day following the last day of the Test Period (as defined in the Credit Agreement) ending on or immediately after the 2015 Closing Date (as defined in the Credit Agreement).

 

The 2015 Revolving Credit Facility will be subject to a financial maintenance covenant requiring the Company to maintain a maximum Consolidated Total Net Debt Ratio (as defined in the Credit Agreement) of 4.00 to 1.00, which will decrease to 3.50 to 1.00 (I) after the sixth full fiscal quarter after the Tranche A Term Loans (as defined in the Credit Agreement) are made or (II) if the Collateral Suspension (as defined below) occurs prior to the date falling 18 months after the Tranche A Term Loans are made, on the later of (x) the last day of the fourth full fiscal quarter after the Tranche A Term Loans are made and (ii) the last day of the fiscal quarter in which the Collateral Suspension occurs.

 

The 2015 Revolving Credit Facility will be secured by the same collateral and guaranteed by the same guarantors that secured and guaranteed the Existing Revolving Credit Facility.  The security for the 2015 Revolving Credit Facility will be automatically suspended (the “ Collateral Suspension ”) if and for so long as (i) the Company’s initial term loans under the Credit Agreement are repaid in full, (ii) the Company has no other secured indebtedness for borrowed money (with limited exceptions) and (iii) the Company has an investment grade rating from either Standard & Poor’s Financial Services, LLC or Moody’s Investors Service, Inc. (or any of their successors).  If the Company incurs secured indebtedness for borrowed money that is not permitted following any suspension of the 2015 Revolving Credit Facility security, the 2015 Revolving Credit Facility security will be reinstated.  The other terms of the 2015 Revolving Credit Facility are generally the same as the terms of the Existing Revolving Credit Facility.

 

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A copy of the Amendment is attached as Exhibit 10.1 hereto and incorporated herein by reference.  The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement.

 

Item 2.03.                                         Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The disclosure set forth above under Item 1.01 with respect to the Amendment is incorporated by reference into this Item 2.03.

 

Item 8.01.                                         Other Events.

 

On December 8, 2015, the Company received notice that the United States Federal Trade Commission granted early termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 in connection with the Company’s previously announced proposed acquisition of King Digital Entertainment plc.

 

Item 9.01.                                         Financial Statements and Exhibits.

 

10.1                         Third Amendment to the Credit Agreement, dated as of October 11, 2013, by and among Activision Blizzard, Inc., the guarantors from time to time party thereto, the lenders from time to time party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the several other agents party thereto.

 

Statements Required by the Irish Takeover Rules

 

The directors of Activision Blizzard, Inc. and the sole manager of ABS Partners I, LLC (in its capacity as the general partner of ABS Partners C.V., a wholly-owned subsidiary of Activision Blizzard, Inc. formed for the purpose of acquiring King Digital Entertainment plc ) accept responsibility for the information contained in this Form 8-K.  To the best of the knowledge and belief of the directors of Activision Blizzard, Inc. and the sole manager of ABS Partners I, LLC (in its capacity as the general partner of ABS Partners C.V.) (who have taken all reasonable care to ensure that such is the case), the information contained in this Form 8-K is in accordance with the facts and does not omit anything likely to affect the import of such information.  The Amendment does not amend or otherwise modify the terms and conditions of the Tranche A Term Facility (as defined in the Credit Agreement), proceeds of which shall be used to fund the acquisition of King Digital Entertainment plc.

 

A copy of this communication will be made available by Activision Blizzard free of charge, subject to certain restrictions relating to persons in restricted jurisdictions , on activisionblizzard.acquisitionoffer.com by no later than 12 noon ET/New York time on December 15, 2015.

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date:  December 14, 2015

 

 

 

 

ACTIVISION BLIZZARD, INC.

 

 

 

 

 

By:

/s/ Chris B. Walther

 

 

Chris B. Walther

 

 

Chief Legal Officer

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

10.1

 

Third Amendment to the Credit Agreement, dated as of October 11, 2013, by and among Activision Blizzard, Inc., the guarantors from time to time party thereto, the lenders from time to time party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the several other agents party thereto.

 

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Exhibit 10.1

 

EXECUTION VERSION

 

THIRD AMENDMENT

 

THIRD AMENDMENT , dated as of December 14, 2015 (this “ Amendment ”), to the Credit Agreement (as defined below), is entered into among ACTIVISION BLIZZARD, INC., a Delaware corporation (the “ Borrower ”), each of the other Loan Parties (as defined below), the Tranche A Term Lenders (as defined below), the other Lenders party hereto and the Administrative Agent (as defined below).

 

W I T N E S S E T H:

 

WHEREAS, the Borrower has entered into that certain Credit Agreement, dated as of October 11, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time, including by the First Amendment, dated as of November 2, 2015 (the “ First Amendment ”), and the Second Amendment (as defined below), the “ Credit Agreement ”), among the Borrower, the Guarantors party thereto from time to time, BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “ Administrative Agent ”), Collateral Agent, Swing Line Lender and an L/C Issuer, JPMORGAN CHASE BANK, N.A., as an L/C Issuer, and each lender from time to time party thereto (collectively, the “ Lenders ”);

 

WHEREAS, the Borrower has entered into the Second Amendment to the Credit Agreement, dated as of November 13, 2015 (the “ Second Amendment ”), which, among other things, established Tranche A Term Loans (as defined in the Credit Agreement) in an aggregate principal amount of $2,300,000,000 and provided that, upon the 2015 Revolving Credit Facility Effective Date, the Revolving Credit Facility, as defined in and as in effect under the Credit Agreement, as amended by this Amendment, shall have the benefit of a financial covenant in Section 7.11 of the Credit Agreement;

 

WHEREAS, pursuant to and in accordance with Section 2.15 of the Credit Agreement, the Borrower requests that, as of the 2015 Revolving Credit Facility Effective Date, (i) the Revolving Credit Commitments and the Revolving Credit Loans (if any), in each case, as defined in and as in effect under the Credit Agreement immediately prior to 2015 Revolving Credit Facility Effective Date (the “ Existing Revolving Credit Commitments ”) be terminated and (if applicable) prepaid in full and (ii) Other Revolving Credit Commitments in the form of Revolving Credit Commitments, as defined in and as in effect under the Credit Agreement, as amended by this Amendment, upon the 2015 Revolving Credit Facility Effective Date (the “ 2015 Revolving Credit Commitments ”), in an aggregate principal amount of $250,000,000 be made available to the Borrower;

 

WHEREAS, the Lenders and the Additional Refinancing Lenders party hereto and the Administrative Agent agree, upon the terms and subject to the conditions set forth herein and in Section 2.15 of the Credit Agreement as amended by this Amendment, that the Lenders and the Additional Refinancing Lenders party hereto will provide such 2015 Revolving Credit Commitments;

 

WHEREAS, Bank of America, N.A. and Goldman Sachs Bank USA will each act as joint-lead arranger and joint bookrunner for the Amendment.

 



 

NOW, THEREFORE, in consideration of the premises contained herein and for other 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:

 

Section 1.1  Defined Terms .   Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement as amended by this Amendment.

 

Section 1.2  Revolving Credit Commitments Effective as of the 2015 Revolving Credit Facility Effective Date (as defined below), the 2015 Revolving Credit Commitments shall be deemed to be “Revolving Credit Commitments” and shall constitute “Commitments,” the Lenders holding the 2015 Revolving Credit Commitments shall be deemed to be “Revolving Credit Lenders,” the Loans under the 2015 Revolving Credit Commitments shall be deemed to be “Revolving Credit Loans,” and this Amendment shall be deemed to be a “Refinancing Amendment” and a “Loan Document,” in each case, for all purposes of the Credit Agreement and the other Loan Documents.  The Borrower, the Administrative Agent, each L/C Issuer and the Swing Line Lender hereby consent, pursuant to subsections 10.06(b)(iii) and the definition of “Additional Refinancing Lender” in Section 1.01 of the Credit Agreement, to the inclusion as a “Lender” of each Additional Refinancing Lender that is party to this Amendment and the inclusion as a Lender in respect of the Revolving Credit Facility of each Lender and each Additional Refinancing Lender that is party to this Amendment, in each case, effective as of the 2015 Revolving Credit Facility Effective Date.

 

Section 1.3  Additional Amendments to the Credit Agreement .  Effective as of the 2015 Revolving Credit Facility Effective Date (as defined below) , the Credit Agreement is hereby amended as follows:

 

(a)                                  By adding the following new definitions, to appear in the proper alphabetical order in Section 1.01:

 

““ Third Amendment ” means the Third Amendment, dated as of December 14, 2015, by and among the Borrower, the other Loan Parties, the Administrative Agent, and the Lenders party thereto.”

 

““ Third Amendment Effective Date ” means the date on which the conditions of Section 1.5(a) of the Third Amendment are satisfied.”

 

(b)                                  By amending and restating the definition of “2015 Revolving Credit Facility Effective Date” as follows:

 

““ 2015 Revolving Credit Facility Effective Date ” means the date of the initial funding of the Tranche A Term Loans provided that the Revolving Credit Commitments and Revolving Credit Loans, in each case, as defined in and as in effect under the Credit Agreement immediately prior to the date of such initial funding, if any, shall have been terminated and (if applicable) repaid in full prior to or substantially concurrently with such initial funding.”

 

(c)                                   By amending and restating clause (c) of the definition of “Applicable Rate” in Section 1.01 as follows:

 

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“(c)                             with respect to Revolving Credit Loans, unused Revolving Credit Commitments and Letter of Credit fees, (i) until delivery of financial statements for the first full fiscal quarter commencing on or after the 2015 Revolving Credit Facility Effective Date pursuant to Section 6.01, (A) for Eurodollar Rate Loans, 2.00%, (B) for Base Rate Loans, 1.00%, (C) for Letter of Credit fees, 2.00% and (D) for unused commitment fees, 0.250% and (ii) thereafter, the following percentages per annum (less, in the case of Letter of Credit fees, the fronting fee payable in respect of the applicable Letter of Credit), based upon the Consolidated Total Net Debt Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

Applicable Rate

 

Pricing
Level

 

Consolidated Total
Net Debt Ratio

 

Eurodollar
Rate and Letter
of Credit Fees

 

Base Rate

 

Unused
Commitment
Fee Rate

 

1

 

< 1.75:1.00

 

1.50

%

0.50

%

0.250

%

2

 

> 1.75:1.00

 

1.75

%

0.75

%

0.250

%

3

 

> 2.00:1.00

 

2.00

%

1.00

%

0.250

%

4

 

> 3.00:1.00

 

2.25

%

1.25

%

0.250

%

 

(d)                                  By amending and restating the definition of “Maturity Date” in Section 1.01 as follows:

 

““ Maturity Date means (i) with respect to the Initial Term Loans and the Tranche A Term Loans, October 11, 2020 and (ii) with respect to the Revolving Credit Facility, October 11, 2020; provided that if either such day is not a Business Day, the Maturity Date shall be the Business Day immediately succeeding such day.”

 

(e)                                   By deleting:

 

i.                                           Section 7.09 of the Credit Agreement in its entirety,

 

ii.                                        each reference to “Section 7.09” appearing in Sections 1.08 and 2.15(b) of the Credit Agreement,

 

iii.                                     the following phrase in Section 8.01(b) of the Credit Agreement in its entirety:

 

“(I) a Default as a result of a breach of Section 7.09 (a “ Financial Covenant Event of Default ”) shall not constitute an Event of Default with respect to any Term Loans, Incremental Term Loans or Extended Term Loans unless and until the Revolving Credit Lenders have declared all amounts outstanding under the Revolving Credit Facility to be immediately due and payable and

 

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all outstanding Revolving Credit Commitments to be immediately terminated, in each case in accordance with this Agreement (the “ Term Loan Standstill Period ”) and (II),”

 

iv.                                    the following phrase in the first paragraph of Section 8.02 of the Credit Agreement in its entirety:

 

“to the extent such Event of Default solely comprises a Financial Covenant Event of Default, prior to the expiration of the Term Loan Standstill Period, at the request of the Required Lenders under the Revolving Credit Facility only, and in such case only with respect to the Revolving Credit Commitments, Swing Line Loans, and any Letters of Credit, (II),” and

 

v.                                       the definitions of “Financial Covenant Event of Default” and “Term Loan Standstill Period” in Section 1.01 of the Credit Agreement in their entirety,

 

in each case of clauses i. through v. above, on the first calendar day following the last day of the Test Period ending on or immediately after the 2015 Closing Date.

 

(f)                                    By replacing “(III)” appearing in the first paragraph of Section 8.02 of the Credit Agreement with “(II).”

 

(g)                                   By amending and restating the second chart appearing in Schedule 1.01A as follows:

 

Lender

 

Revolving Credit Commitment

 

JPMorgan Chase Bank, N.A.

 

$

37,500,000.00

 

Bank of America, N.A.

 

$

24,315,920.00

 

Citibank, N.A.

 

$

21,144,279.00

 

HSBC Bank USA, National Association

 

$

21,144,279.00

 

Mizuho Bank, Ltd.

 

$

21,144,279.00

 

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

 

$

21,144,279.00

 

Royal Bank of Canada

 

$

21,144,279.00

 

SunTrust Bank

 

$

21,144,279.00

 

Wells Fargo Bank, National Association

 

$

21,144,279.00

 

U.S. Bank National Association

 

$

12,686,565.00

 

Compass Bank D/B/A BBVA Compass

 

$

10,572,139.00

 

Bank of Montreal

 

$

10,572,139.00

 

Goldman Sachs Bank USA

 

$

6,343,284.00

 

Total:

 

$

250,000,000.00

 

 

Section 1.4  Representations and Warranties, No Default .  In order to induce the Lenders and the Additional Refinancing Lenders party hereto and the Administrative Agent to

 

4



 

enter into this Amendment, each Loan Party represents and warrants to each of the Lenders and the Additional Refinancing Lenders party to this Amendment and the Administrative Agent that on and as of the Third Amendment Effective Date (as defined below), after giving effect to the amendments set forth in this Amendment:

 

(a)                                  the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects as if made on and as of the Third Amendment Effective Date (as defined below) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date;

 

(b)                                  no Default or Event of Default exists; and

 

(c)                                   the execution, delivery and performance of this Amendment by each Loan Party have been duly authorized by all necessary corporate or other action on the part of such Loan Party, has been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except to the extent that the enforceability hereof may be limited by Debtor Relief Laws and by general principles of equity.

 

Section 1.5  Effectiveness .

 

(a)                                  This Amendment shall become effective on the date (the “ Third Amendment Effective Date ”) on which each of the following conditions is satisfied or waived:

 

i.                                           the Administrative Agent shall have received a counterpart of this Amendment executed by (I) each of the Loan Parties, (II) the Lenders and Additional Refinancing Lenders holding 2015 Revolving Credit Commitments in an aggregate principal amount of $250 million, (III) the Administrative Agent, each L/C Issuer and the Swingline Lender and (IV) the Lenders the consent of which is required pursuant to clause (v) of the first paragraph of Section 10.01;

 

ii.                                        the Administrative Agent shall have received such closing certificates or certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment;

 

iii.                                     the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed;

 

iv.                                    the Administrative Agent shall have received an executed legal opinion of Debevoise & Plimpton LLP, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent, each Lender and Additional Refinancing Lender party to this Amendment, dated the Third Amendment Effective

 

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Date and in form and substance reasonably satisfactory to the Administrative Agent;

 

v.                                       the representations and warranties of each Loan Party contained in Article V of the Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the Third Amendment Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct as of such earlier date); provided that, to the extent that such representations and warranties are qualified by materiality, material adverse effect or similar language, they shall be true and correct in all respects;

 

vi.                                    no Default or Event of Default exists or would result from the effectiveness of this Amendment or from the application of the proceeds of the Revolving Credit Loans; and

 

vii.                                 each Lender and Additional Refinancing Lender party to this Amendment shall have consented to the Collateral Release Amendments (as defined in the Second Amendment).

 

The delivery of a counterpart of this Amendment executed by the Administrative Agent and each Lender and Additional Refinancing Lender party to this Amendment shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each Lender and Additional Refinancing Lender party to this Amendment that each of the conditions precedent set forth in this Section 1.5 shall have been satisfied in accordance with its terms or shall have been irrevocably waived by such Person.

 

The Administrative Agent shall notify the Borrower and the Lenders in writing of the Third Amendment Effective Date promptly upon the respective conditions precedent in this Section 1.5 being satisfied (or waived in accordance with this Section 1.5), and such notice shall be conclusive and binding.

 

This Amendment shall automatically terminate and be of no further force or effect if the 2015 Revolving Credit Facility Effective Date has not occurred prior to 12:01 am, New York City time, on the day immediately following the last day of the Certain Funds Period.

 

Section 1.6  Expenses .  The Borrower shall pay all reasonable out-of-pocket expenses of the Administrative Agent incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (including the reasonable fees, disbursements and other charges of Cahill Gordon & Reindel LLP and McCann FitzGerald, counsels for the Administrative Agent) in accordance with Section 10.04 of the Credit Agreement.

 

Section 1.7  Counterparts .  This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument.  Delivery of an executed counterpart of a signature page of

 

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this Amendment by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

Section 1.8  Applicable Law.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

Section 1.9  Headings .  The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

 

Section 1.10  Loss of FATCA Grandfathering .  For purposes of determining withholding Taxes imposed under FATCA, from and after the First Amendment Effective Date (as defined in the First Amendment), the Borrower and the Administrative Agent have treated, and shall continue to treat (and the Lenders hereby authorize the Administrative Agent to treat), the Loans (including the Initial Term Loans, the Tranche A Term Loans, any Revolving Credit Loans and any Swing Line Loans) as not qualifying as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

Section 1.11  Effect of Amendment .  Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Collateral Agent or the Loan Parties under the Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document.  Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement (including, as amended by the First Amendment and the Second Amendment) or any other Loan Document (including the First Amendment and the Second Amendment) is hereby ratified and reaffirmed in all respects and shall continue in full force and effect and nothing herein can or may be construed as a novation thereof.  Each Loan Party reaffirms its obligations under the Loan Documents to which it is party and the validity, enforceability and perfection of the Liens granted by it pursuant to the Collateral Documents.  This Amendment shall constitute a Loan Document for purposes of the Credit Agreement and from and after the Third Amendment Effective Date (subject to the occurrence of the 2015 Revolving Credit Facility Effective Date), all references to the Credit Agreement in any Loan Document and all references in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment.  Each of the Loan Parties hereby consents to this Amendment and confirms that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to the Credit Agreement, as amended hereby.  Each Lender and Additional Refinancing Lender party to this Amendment hereby consents to the Collateral Release Amendments (as defined in the Second Amendment) and, solely for the purposes of Section 1.5(b)ii of the Second Amendment, the delivery of a counterpart of this Amendment executed by each Lender and

 

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Additional Refinancing Lender party to this Amendment shall be deemed to constitute the delivery of a counterpart of the Second Amendment executed by such Lender and such Additional Refinancing Lender.  The consent of each Lender and Additional Refinancing Lender party to this Amendment to the Collateral Release Amendments shall be binding upon each of its successors and assigns.

 

Section 1.12  Guarantor Acknowledgment .  Each Guarantor acknowledges and consents to each of the foregoing provisions of this Amendment and the establishment of the 2015 Revolving Credit Commitments and the incurrence of the Revolving Credit Loans thereunder.  Each Guarantor further acknowledges and agrees that all Obligations with respect to the 2015 Revolving Credit Commitments and the Loans thereunder shall be fully guaranteed and secured pursuant to the Credit Agreement (including as amended by this Amendment) and the Collateral Documents in accordance with the terms and provisions thereof.  Each Guarantor hereby agrees to the amendments contemplated by Sections 1.2 and 1.3 hereof.

 

[ Remainder of Page Intentionally Left Blank ]

 

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

 

 

 

ACTIVISION BLIZZARD, INC.

 

 

 

 

 

 

 

By:

/s/ Dennis M. Durkin

 

 

Name:

Dennis M. Durkin

 

 

Title:

Chief Financial Officer

 

 

 

 

 

 

 

 

 

ACTIVISION ENTERTAINMENT HOLDINGS, INC.

 

 

 

 

 

 

 

By:

/s/ Dennis M. Durkin

 

 

Name:

Dennis M. Durkin

 

 

Title:

Chief Financial Officer

 

 

 

 

 

 

 

 

 

ACTIVISION PUBLISHING, INC.

 

 

 

 

 

 

 

By:

/s/ Dennis M. Durkin

 

 

Name:

Dennis M. Durkin

 

 

Title:

Chief Financial Officer

 

 

 

 

 

 

 

 

 

BLIZZARD ENTERTAINMENT, INC.

 

 

 

 

 

 

 

By:

/s/ Michael S. Morhaime

 

 

Name:

Michael S. Morhaime

 

 

Title:

Chief Executive Officer and President

 

[Signature Page to Third Amendment]

 



 

 

BANK OF AMERICA, N.A.,

 

as Administrative Agent

 

 

 

 

 

 

 

By:

/s/ Tiffany Shin

 

 

Name:

Tiffany Shin

 

 

Title:

Assistant Vice President

 

[Signature Page to Third Amendment]

 



 

 

BANK OF AMERICA, N.A.,

 

as L/C Issuer, Swing Line Lender and Lender

 

 

 

 

 

 

 

By:

/s/ Charmaine Lobo

 

 

Name:

Charmaine Lobo

 

 

Title:

Vice President

 

[Signature Page to Third Amendment]

 



 

 

JPMORGAN CHASE BANK, N.A.,

 

as L/C Issuer

 

 

 

 

 

 

 

By:

/s/ Patrick J. Minnick

 

 

Name:

Patrick J. Minnick

 

 

Title:

Vice President

 

[Signature Page to Third Amendment]

 



 

 

JPMORGAN CHASE BANK, N.A.,

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Patrick J. Minnick

 

 

Name:

Patrick J. Minnick

 

 

Title:

Vice President

 

[Signature Page to Third Amendment]

 



 

 

GOLDMAN SACHS BANK USA,

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Anna Ashurov

 

 

Name:

Anna Ashurov

 

 

Title:

Authorized Signatory

 

[Signature Page to Third Amendment]

 



 

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Lillian Kim

 

 

Name:

Lillian Kim

 

 

Title:

Director

 

 

 

 

 

MUFG UNION BANK, N.A.

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Richard Ong Pho

 

 

Name:

Richard Ong Pho

 

 

Title:

Director

 

[Signature Page to Third Amendment]

 



 

 

Mizuho Bank, Ltd.

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Bertram H. Tang

 

 

Name:

Bertram H. Tang

 

 

Title:

Authorized Signatory

 

[Signature Page to Third Amendment]

 



 

 

Royal Bank of Canada

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Alexander Oliver

 

 

Name:

Alexander Oliver

 

 

Title:

Authorized Signatory

 

[Signature Page to Third Amendment]

 



 

 

U.S. BANK NATIONAL ASSOCIATION

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Susan M. Bowes

 

 

Name:

Susan M. Bowes

 

 

Title:

Senior Vice President

 

[Signature Page to Third Amendment]

 



 

 

COMPASS BANK

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Raj Nambiar

 

 

Name:

Raj Nambiar

 

 

Title:

Vice President

 

[Signature Page to Third Amendment]

 



 

 

Bank of Montreal

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Christina Boyle

 

 

Name:

Christina Boyle

 

 

Title:

Director

 

[Signature Page to Third Amendment]

 



 

 

CITIBANK, N.A.

 

as Lender

 

 

 

 

 

 

 

By:

/s/ Michael Vondriska

 

 

Name:

Michael Vondriska

 

 

Title:

Vice President

 

[Signature Page to Third Amendment]

 



 

 

HSBC Bank USA, National Association

 

as Lender

 

 

 

 

 

 

 

By:

/s/ David Wagstaff

 

 

Name:

David Wagstaff

 

 

Title:

Managing Director

 

[Signature Page to Third Amendment]

 



 

 

Wells Fargo Bank, National Association

 

as Lender

 

 

 

 

 

By:

/s/ David M. Mallett

 

 

Name:

David M. Mallett

 

 

Title:

Managing Director

 

[Signature Page to Third Amendment]

 



 

 

SUNTRUST BANK,

 

as Lender

 

 

 

 

 

By:

/s/ Shannon Offen

 

 

Name:

Shannon Offen

 

 

Title:

Director

 

[Signature Page to Third Amendment]