Promissory Note - Infogrames Inc., Shiny Entertainment Inc., Interplay Entertainment Corp., Shiny Group Inc., David Perry and Akin, Gump, Strauss, Hauer & Feld LLP
AKIN PROMISSORY NOTE
$1,020,000 APRIL 30, 2002
FOR VALUE RECEIVED, and pursuant to that certain Stock Purchase
Agreement dated April 23, 2002 by and among INFOGRAMES, INC., a Delaware
corporation ("BUYER"), Shiny Entertainment, Inc., Interplay Entertainment Corp.
("INTERPLAY"), Shiny Group, Inc., and David Perry, Buyer unconditionally
promises pursuant to this Promissory Note ("NOTE") to pay to AKIN, GUMP,
STRAUSS, HAUER & FELD, L.L.P. ("AKIN") in the manner, and on July 30, 2002
("MATURITY DATE"), and at place hereinafter provided, the principal sum of One
Million Twenty Thousand Dollars ($1,020,000), together with accrued interest
from the date hereof.
Section 1. INTEREST. Buyer also promises to pay interest on the
unpaid principal amount hereof from the date hereof until the Maturity Date at a
rate of 2.88% per annum, the short-term federal rate applicable for the month of
April, 2002. Computation of interest will be made on the basis of a 365-day
year, for the actual number of days elapsed in the relevant period (including
the first day but excluding the last day).
Notwithstanding anything to the contrary set forth in the preceding
paragraph, if a court of competent jurisdiction determines in a final order that
the rate of interest payable hereunder exceeds the highest rate of interest
permissible under law ("MAXIMUM LAWFUL RATE"), then so long as the Maximum
Lawful Rate would be so exceeded, the rate of interest payable hereunder will be
equal to the Maximum Lawful Rate; provided, that if at any time thereafter the
rate of interest payable hereunder is less than the Maximum Lawful Rate, Buyer
will continue to pay interest hereunder at the Maximum Lawful Rate until such
time as the total interest received by Akin is equal to the total interest that
would have been received had the interest rate payable hereunder been (but for
the operation of this paragraph) the interest rate otherwise payable as provided
herein. Thereafter, interest hereunder will be paid at the rate of interest and
in the manner initially provided in the preceding paragraph, unless and until
the rate of interest again exceeds the Maximum Lawful Rate, and at that time
this paragraph will again apply. In no event will the total interest received by
Akin pursuant to the terms hereof exceed the amount that Akin could lawfully
have received had the interest due hereunder been calculated for the full term
hereof at the Maximum Lawful Rate.
Section 2. PAYMENTS.
(a) Buyer will pay the principal amount of this Note on the Maturity
Date, together with all accrued and unpaid interest on the principal
amount. Buyer will also pay any costs, expenses, or other amounts due and
payable hereunder on the Maturity Date.
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(b) All payments of principal, interest, costs, expenses, and other
amounts due and payable in respect of this Note will be delivered to Akin
at 2029 Century Park East, Suite 2400, Los Angeles, California 90067, or
at such other address as Akin may in writing notify Buyer. If payment on
this Note is stated to be due on a day that is not a Business Day (as
defined below), such payment will instead be made on the next Business
Day, and such extension of time will be included in the computation of
interest payable on this Note. "BUSINESS DAY" means any day other than a
Saturday, Sunday, or legal holiday under the laws of the State of
California or any other day on which banking institutions located in such
state are authorized or required by law or other governmental action to
close. Each payment made prior to the Maturity Date hereunder will be
credited first to any fees, costs, or other amounts due and payable to
Akin hereunder, second to interest then due, and the remainder of such
payment will be credited to principal, and interest will thereupon cease
to accrue upon the principal so credited. Each of Akin and any subsequent
holder of this Note agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, however, that the failure
to make a notation of any payment made on this Note will not limit or
otherwise affect the obligation of Buyer hereunder with respect to
payments of principal or interest on this Note.
Section 3. VOLUNTARY PREPAYMENTS. Buyer will have the right at any
time and from time to time prior to the Maturity Date to prepay the principal of
this Note in whole or in part, without premium or penalty. Any prepayment
hereunder will be accompanied by interest on the principal amount of this Note
being prepaid to the date of prepayment as well as by any fees, costs, or other
amounts due and payable to Akin hereunder.
Section 4. SECURITY. This Note is being delivered by Buyer in
connection with the Payment Guaranty of even date herewith ("GUARANTY") of
Buyer's parent company, Infogrames Entertainment SA ("GUARANTOR").
Section 5. EVENTS OF DEFAULT. The occurrence of any of the following
events will constitute an "EVENT OF DEFAULT":
(a) failure of Buyer to pay any principal under this Note when due,
whether at stated maturity or otherwise, or failure of Buyer to pay any
interest or other amount due and payable under this Note within three days
after the date due; or
(b) (i) a court having jurisdiction in the premises enters a decree
or order for relief in respect of Buyer in an involuntary case under Title
11 of the United States Code entitled "BANKRUPTCY" (as now and hereinafter
in effect, or any successor thereto, the "BANKRUPTCY CODE") or any
applicable bankruptcy, insolvency, or other similar law now or hereafter
in effect, which decree or order is not stayed; or any other similar
relief is granted under any applicable federal or state law; or (ii) an
involuntary case is commenced against Buyer under any applicable
bankruptcy, insolvency, or other similar law now or hereafter in effect;
or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator,
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sequestrator, trustee, custodian, or other officer having similar powers
over Buyer or over all or a substantial part of its property has been
entered; or the involuntary appointment of an interim receiver, trustee,
or other custodian of Buyer for all or a substantial part of its property
has occurred; or a warrant of attachment, execution, or similar process
will have been issued against any substantial part of the property of
Buyer, and, in the case of any event described in this clause (ii), such
event will have continued for 30 days unless dismissed, bonded, or
discharged; or
(c) an order for relief has been entered with respect to Buyer or
Buyer commences a voluntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency, or other similar law now or hereafter
in effect, or consents to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or consents to the appointment of or
taking possession by a receiver, trustee, or other custodian for all or a
substantial part of its property; or Buyer makes an assignment for the
benefit of creditors; or
(d) at any time after the date hereof, the Guaranty, or any other
document delivered pursuant hereto or thereto will cease to be in full
force and effect or will be declared null or void, or Buyer or Guarantor
contests the validity or enforceability of this Note, the Guaranty, or any
other document delivered pursuant hereto or thereto; or
(e) any representation, warranty or statement made by the Buyer or
Guarantor herein or in the Guaranty or any other document delivered
pursuant hereto or thereto will prove to have been untrue in any material
respect on the date as of which made or deemed made; or
(f) the Buyer or Guarantor will default in the due performance or
observance by it or them of any material term, covenant, or agreement
applicable to it or them contained in this Note, the Guaranty, or any
other document delivered pursuant hereto or thereto.
Section 6. AKIN REMEDIES. Upon the occurrence of any Event of
Default specified pursuant to Section 5(b) or Section 5(c), the outstanding
principal amount of this Note together with all accrued and unpaid interest
thereon as well as any fees, costs, or other amounts due and payable to Akin
hereunder will become immediately due and payable, without presentment, demand,
notice, protest, or other requirements of any kind (all of which are hereby
expressly waived by Buyer). Upon the occurrence of an Event of Default pursuant
to Sections 5(a), 5(d), 5(e) or 5(f), the outstanding principal amount of this
Note together with all accrued and unpaid interest thereon as well as any fees,
costs, or other amounts due and payable to Akin hereunder will become
immediately due and payable upon written notice from Akin to Buyer.
Section 7. WAIVER OF SET OFF. Buyer, to the fullest extent permitted
by law, hereby waives any and all rights of set off, recoupment, or similar
remedies that Buyer may now or hereafter have under applicable law.
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Section 8. MISCELLANEOUS.
(a) Any notice or other communication provided for in this Note will
be in writing and sent, if to Akin to its principal offices at the address
listed above or at such other address as Akin may from time to time in
writing designate and if to Buyer at the address listed on the signature
page hereto or at such address as Buyer may from time to time in writing
designate. Each such notice or other communication will be effective (i)
if given by telecommunication, when transmitted to the applicable number
so specified in (or pursuant to) this Section 8(a) and a verification of
receipt is received, (ii) if given by mail, three days after such
communication is deposited in the mails, registered or certified postage
prepaid, addressed as aforesaid, or (iii) if given by any other means,
when actually delivered at such address.
(b) No failure or delay on the part of Akin to exercise any right,
power, or privilege hereunder or under any document delivered pursuant
hereto will operate as a waiver of any default or an acquiescence therein,
nor will any single or partial exercise of any such right, power, or
privilege hereunder or under any document delivered pursuant hereto
preclude any other or further exercise thereof or the exercise of any
other right, power, or privilege. The rights and remedies expressly
provided in this Note and any other document delivered pursuant hereto are
cumulative to, and not exclusive of, any rights or remedies that Akin
would otherwise have.
(c) If any provision in or obligation under this Note will be
invalid, illegal or unenforceable in any jurisdiction, the validity,
legality, and enforceability of the remaining provisions or obligations,
or of such provision or obligation in any other jurisdiction, will not in
any way be affected or impaired thereby.
(d) This Note will be binding upon Buyer and Akin and their
respective successors and assigns. None of the terms or provisions of this
Note may be waived, altered, modified, or amended except in writing duly
signed for and on behalf of Akin and Buyer. This Note may not be assigned
by either party without the prior written consent of the other party
(e) Buyer will indemnify Akin, its officers, directors, employees,
and representatives from and hold each of them harmless against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses, and disbursements, including but not
limited to the reasonable fees and disbursements of counsel, incurred by
any of them in connection with any collection on or enforcement of this
Note, including any action or proceeding by Akin seeking relief from the
automatic stay in any Bankruptcy, insolvency, or like proceeding
instituted by or against Buyer (but excluding any such liabilities,
obligations and losses, to the extent incurred by reason of the gross
negligence or willful misconduct of Akin or any other such indemnified
party).
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THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF BUYER AND AKIN HEREUNDER
WILL BE GOVERNED BY, AND WILL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
Any legal action or proceeding against the Buyer or Akin with
respect to this Note may be brought in the courts of the State of California
located in Los Angeles County or of the United States for the Central District
of California, and, by execution and delivery of this Note, the Buyer and Akin
hereby irrevocably accept for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Nothing herein
will affect the right of Akin or the Buyer to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Buyer or Akin in any other jurisdiction.
The Buyer and Akin hereby irrevocably waive any objection which they
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Note brought in the
courts referred to above and hereby further irrevocably waive and agree not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING HEREUNDER.
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IN WITNESS WHEREOF, Buyer has caused this Note to be executed and
delivered as of the day and year first above written.
INFOGRAMES, INC., as Buyer
By: /s/ Harry Rubin
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Name: Harry Rubin
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Its: Senior Executive Vice President
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Address: 417 Fifth Avenue, New York, NY 10016
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SCHEDULE A
TRANSACTIONS ON PROMISSORY NOTE
Amount of Principal Amount of Interest Outstanding Principal Notation
Date Paid This Date Paid This Date Balance This Date Made By
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July 30, 2002 $1,020,000 $ $0
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