Loan Agreement - Infogrames Inc. and BNP Paribas
BNP PARIBAS
180 Montgomery Street
San Francisco, CA 94104
LOAN AGREEMENT
THIS AGREEMENT, dated as of September 28, 2000, is entered into
between Infogrames, Inc., a Delware corporation, (hereinafter called "Borrower")
whose principal place of business is the address set forth in the Loan Term
Sheet, and BNP PARIBAS (hereinafter called "Bank"), acting through its San
Francisco Branch, with its place of business located at the address set forth
above.
The Parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following definitions:
1.1 The term "this Agreement" means and includes this Loan
Agreement, the Loan Term Sheet and any extensions, supplements, amendments or
modifications thereto.
1.2 The term "Application and Agreement for Letter of
Credit" means a Bank standard form Application for Commercial Letters of Credit
and Agreement (Commercial Letter of Credit), or Electronic Services Agreement,
or Application and Agreement for Standby Letter of Credit.
1.3 The term "Bank Expenses" means and includes, without
limitation: all costs or expenses required to be paid by Borrower under this
Agreement which are paid or advanced by Bank; taxes and insurance premiums of
Borrower of every nature and kind paid by Bank; filing, recording, publication,
search fees and audit costs paid or incurred by Bank in connection with Bank's
transactions with Borrower; costs and expenses of suit incurred by Bank in any
proceeding enforcing, defending or relating to this Agreement or any portion
hereof, including, but not limited to, expenses incurred by Bank in attempting
to obtain relief from any stay, restraining order, injunction or similar process
which prohibits Bank from exercising any of its rights or remedies; and
attorneys' fees and expenses incurred by Bank in structuring, drafting,
reviewing, amending, terminating, enforcing, defending or concerning this
Agreement, or any portion hereof or any agreement related hereto, whether or not
suit is brought.
1.4 The term "Borrower's Books" means and includes all of
Borrower's books and records including, but not limited to: minute books;
ledgers; records indicating, summarizing or evidencing Borrower's assets,
liabilities, the Collateral and all information relating thereto; records
indicating, summarizing or evidencing Borrower's business operations or
financial condition; and all computer programs, disc or tape files, printouts,
runs, and other computer prepared information and the equipment containing such
information.
1.5 The term "Credit" means all Obligations of Borrower to
Bank except those obligations arising pursuant to any letter of credit issued or
bankers acceptances created or discounted under Section 3.1 of this Agreement
and those obligations arising pursuant to any other separate contract,
instrument, note, or other separate agreement which, by its terms, provides for
a specified interest rate and term.
1.6 The term "Current Ratio" is defined as current assets
divided by current liabilities.
1.7 The term "Daily Balance" shall mean the amount
determined by taking the amount of the Credit owed at the beginning of a given
day, adding any new Credit advanced or incurred on such date, and subtracting
any payments or collections which are deemed to be paid and are applied by Bank
in reduction of the Credit on that date under the provisions of this Agreement.
1.8 The term "Event of Default" means the occurrence of any
one of the events set forth in Article 7 of this Agreement.
1.9 The term "Insolvency Proceeding" means and includes any
proceeding, commenced by or against any person or entity, including borrower,
under any provision of the federal Bankruptcy Code, as amended, or under any
other bankruptcy or insolvency law, including, but not limited to, assignments
for the benefit of creditors, formal or informal moratoriums, compositions or
extensions with some or all creditors.
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1.10 The term "Intangibles" means and includes all of
Borrower's present and future general intangibles and other personal property
(including, without limitation, any and all choses or things in action,
goodwill, patents, trade names, copyrights, trademarks, service marks,
blueprints, drawings, purchase orders, computer programs, computer discs,
computer tapes, literature, reports, catalogs, deposit accounts and tax refunds)
other than Inventory and Receivables, but including Borrower's Books relating to
any of the foregoing.
1.11 The term "Inventory" means and includes all present and
future inventory in which Borrower has any interest, including, but not limited
to, goods held by Borrower for sale or lease or to be furnished under a contract
of service and all of Borrower's present and future raw materials, work in
process, finished goods, advertising materials, and equipment, fixtures or other
property used in the storing, moving, preserving, identifying, accounting for
and shipping or preparing for the shipping of Inventory, and any and all other
items hereafter acquired by Borrower by way of substitution, replacement,
return, repossession or otherwise, and all additions and accessions thereto, and
the resulting product or mass, and any documents of title respecting any of the
above.
1.12 The term "Judicial Officer or Assignee" means and
includes any trustee, receiver, controller, custodian, assignee for the benefit
of creditors or any other person or entity having powers or duties like or
similar to the powers and duties of a trustee, receiver, controller, custodian
or assignee for the benefit of creditors.
1.13 The term "Leverage Ratio" is defined as total
liabilities net of subordinated debt divided by Tangible Net Worth.
1.14 The term "Loan Term Sheet" means the Loan Term Sheet, in
the form entitled Loan Term Sheet executed and attached to this Agreement. The
terms listed in the Loan Term Sheet, and any amendments to the Loan Term Sheet
are incorporated herein and made a part hereof.
1.15 The term "Maximum Credit Limit" means the total amount
of credit committed to Borrower as detailed in the Loan Term Sheet.
1.16 The term "Maximum Sublimit" means the total available to
Borrower for specific purposes within the Maximum Credit Limit as detailed in
the Loan Term Sheet.
1.17 The term "Negotiable Collateral" shall have the meaning
set forth in Section 5.1 of this Agreement.
1.18 The term "Obligations" means and includes any and all
loans, advances, overdrafts, debts, liabilities (including, without limitation,
any and all amounts charged to Borrower's account pursuant to any agreement
authorizing Bank to charge Borrower's account), obligations, lease payments,
guaranties, covenants and duties of any kind and description owing by Borrower
to Bank (whether advanced pursuant to or evidenced by this Agreement, by any
note or other instrument, or by any other agreement between Bank and Borrower
and whether or not for the payment of money), whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
and including, without limitation, any debt, liability or obligation owing from
Borrower to others which Bank may have obtained by assignment, merger,
participation, purchase or otherwise, and further including, without limitation,
all interest and fees not paid when due and all Bank Expenses which Borrower is
required to pay or reimburse by this Agreement, by law, or otherwise.
1.19 The term "Overline" shall have the meaning set forth in
Section 2.2 and 3.1 of this Agreement.
1.20 The term "Quick Ratio" is defined as cash, cash
equivalents plus Accounts Receivable divided by Current Liabilities.
1.21 The term "Rate" shall have the meaning set forth in
Section 2.4 of this Agreement and in the Loan Term Sheet.
1.22 The term "Receivables" means and includes all presently
existing and hereafter arising accounts, general intangibles, contract rights,
instruments, documents, chattel paper, and all other forms of obligations owing
to Borrower, whether or not earned by performance, and any and all credit
insurance, guaranties and other security therefor as well as all merchandise
returned to or reclaimed by Borrower, and Borrower's Books (except minute books)
relating to any of the foregoing.
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1.23 The term "Tangible Net Worth" means net worth as
determined in accordance with generally accepted accounting principles
consistently applied, increased by debt subordinated to Bank if any, and
decreased by the following: patents, licenses, goodwill, subscription lists,
organization expenses and monies due from affiliates (including officers,
directors, shareholders, parents, partners, joint ventures, subsidiaries and
commonly held companies).
1.24 The term "Working Capital" is defined as Current Assets
minus Current Liabilities.
1.25 All accounting terms and computations shall be based on
generally accepted accounting principles, consistently applied.
2. LOANS
2.1 At the request of Borrower, made at anytime and from
time to time during the term of this Agreement, and so long as Borrower is not
then in default under the terms of this Agreement and Borrower is in full,
faithful and timely compliance with each and all the covenants, conditions,
warranties and representations contained in this Agreement, and the Loan Term
Sheet and/or any other agreement between Bank and Borrower, Bank will make
advances as provided in the Loan Term Sheet.
2.2 All advances made, letters of credit issued and other
financial accommodations extended by Bank to or for the account or benefit of
Borrower under this Agreement shall be added to and deemed part of the
Obligations and Credit when made and/or issued. Notwithstanding any other
provisions of this Agreement, at no time shall Bank be obligated to provide any
financial accommodations whenever the Maximum Credit Limit or sublimits provided
for in the Loan Term Sheet are exceeded.
If, at any time for any reason such Maximum Credit
Limited is exceeded or if any Maximum Sublimit on any subcomponent of the
Credit, as provided in the Loan Term Sheet, is exceeded, then Borrower shall
immediately pay to Bank, in cash, the amount by which such Maximum Credit Limit
or Maximum Sublimit is exceeded ("Over Line").
2.3 Bank is hereby authorized to make the loans and the
extensions of credit provided for in this Agreement based upon written
instructions received from authorized representatives of Borrower. Borrower
shall hold Bank harmless from any damages, claims, or liability by reason of
Bank's honor of, or failure to honor, any such instructions. Nevertheless, Bank
reserves the rights to withhold advancing any loan hereunder pending receipt of
such additional information as Bank may, from time to time, request.
2.4 Except as hereinbelow provided, the Credit shall bear
interest, on the Daily Balance owing, at the Rate provided in the Loan Term
Sheet. If any amount due under this Agreement is not paid when due or upon
demand from Bank in the Event of a Default not waived by Bank, and without
constituting a waiver by Bank, the Credit shall bear interest at the Default
Rate provided in the Loan Term Sheet. All interest chargeable under this
Agreement that is based upon a per annum calculation shall be computed on the
basis of a 365-day year and actual days elapsed.
All interest payable by Borrower under the Credit shall
be due and payable on the first day of each calendar month during the term of
this Agreement, and Bank may, at its option, elect to treat past due interest
and any and all Bank Expenses not paid when due as advances under the Credit,
which amounts shall thereupon constitute Obligations and shall thereafter accrue
interest at the rate applicable to the Credit under the terms of this Agreement
and the Loan Term Sheet.
2.5 Bank shall render monthly statements of the Credit owing
by Borrower to Bank, including statements of all principal, interest, fees and
Bank Expenses owing, and such statements shall be conclusively presumed to be
correct and accurate and constitute an account stated between Borrower and Bank
unless, within one hundred eighty (180) days after receipt thereof by Borrower,
Borrower shall deliver to Bank, by registered or certified mail, at Bank's place
of business indicated hereinabove, written objection thereto specifying the
error or errors, if any, contained in any such statement. No failure by Bank to
render any such monthly statements shall be deemed to impair or otherwise affect
the Credit.
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3. LETTER OF CREDIT AND BANKER'S ACCEPTANCE FACILITIES
3.1 Upon the request of Borrower, made at any time and from
time to time during the term hereof, subject to the Maximum Credit Limit and
Maximum Sublimit set forth in the Loan Term Sheet, and provided that Borrower is
not then in default, and Borrower is in full, faithful and timely compliance
with each and all the covenants, conditions, warranties and representations
contained in this Agreement and/or any other agreement between Bank and
Borrower, Bank, on a revolving basis will issue Letters of Credit, create
acceptances for Borrower's account if and as provided for in the Loan Term
Sheet; provided, however, in no event shall Bank be obligated to issue Letters
of Credit and create or discount banker's acceptances whenever the total of
undrawn Letters of Credit or banker's acceptances exceed the Maximum Sublimits
provided in the Loan Term Sheet.
If, at any time and for any reason, the total of the
undrawn amount of all Letters of Credit or the total of all outstanding banker's
acceptances exceeds the Maximum Sublimit provided in the Loan Term Sheet ("L/C
Overline" or "B/A Overline"), Borrower shall immediately pay to Bank, in cash,
the amount of such L/C and/or B/A Overline. Bank may, in its sole discretion,
elect to treat an L/C and/or B/A Overline as an advance under the Credit.
3.2 Each Commercial Letter of Credit issued under Section
3.1 shall be issued pursuant to the terms and conditions of this Agreement and
on a Bank standard form Application and Agreement for Commercial Letter of
Credit executed by Borrower; or Electronic Services Agreement and be in
substance and in favor of beneficiaries satisfactory to Bank. In the event of
any inconsistency between the Terms of this Agreement and the terms of such
Application and Agreement for Commercial Letters of Credit, or Electronic
Services Agreement, the terms of such Application and Agreement for Commercial
Letter of Credit or Electronic Services Agreement shall control.
3.3 Borrower shall pay to Bank Commercial Letter of Credit
fees as defined in the Loan Term Sheet.
3.4 Each Standby Letter of Credit issued under Section 3.1
shall be issued pursuant to the terms and conditions as contained in the Loan
Term Sheet and on a Bank standard form Application for Standby Letter of Credit
and Agreement (Standby Letter of Credit) executed by Borrower and be in form and
substance and in favor of beneficiaries satisfactory to Bank.
3.5 Borrower shall pay to Bank Standby Letter of Credit fees
as defined in the Loan Term Sheet.
3.6 In the event of any inconsistency between the terms of
this Agreement, the Loan Term Sheet and the terms of Borrower's Application for
Standby Letter of Credit and Agreement (Standby Letter of Credit), the terms of
such Application for Standby Letter of Credit and Agreement (Standby Letter of
Credit) shall control.
3.7 All advances made, letters of credit issued, banker's
acceptances created or discounted and other financial accommodations extended by
Bank to or for the account or benefit of Borrower under this Section 3, hereof
shall be added to and deemed part of the Obligations when made issued, created
and/or extended.
3.8 The creation of banker's acceptances under Section 3.1
shall be pursuant to the terms and conditions hereof and the Loan Term Sheet,
and such other documents as Bank deems necessary in order to verify that Bank's
creation thereof is in compliance with all applicable laws, regulations and
administrative orders, and Borrower agrees to execute and deliver all such
documents to Bank. Bank shall not be obligated to create any banker's acceptance
that is not eligible for discount by a Federal Reserve Bank, or which, if
created, would become a liability subject to reserve requirements under any
regulation of the Board of Governors of the Federal Reserve System.
3.9 The commission for each banker's acceptance issued under
Section 3.1 shall be at the rate disclosed in the Loan Term Sheet and shall be
payable at the time of the issuance of the banker's acceptance.
3.10 Unpaid Acceptances. In the event Borrower fails to repay
Bank the principal amount of any acceptance at maturity, without limiting the
rights of the Bank under this Agreement or waiving any Event of Default caused
thereby, the principal amount of such acceptance shall bear interest (from the
date the acceptance matured until the date Bank is paid in full) at the Default
Rate provided in the Loan Term Sheet. Borrower hereby promises to pay and shall
pay Bank, on demand the unpaid amount of principal together with interest
thereon.
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4. TERM
4.1 This Agreement shall remain in full force and effect
until maturity as detailed in the Loan Term Sheet. Notwithstanding the
foregoing, upon the occurrence of an Event of Default, Bank may terminate its
obligations under this Agreement without notice. On the date of termination, all
Obligations owed by Borrower to Bank shall become immediately due and payable
without notice or demand and shall be repaid to Bank in cash or by a wire
transfer of immediately available funds. Notwithstanding termination, until all
Obligations have been fully repaid, Bank shall retain its security interest in
all existing collateral and collateral arising thereafter, and Borrower shall
continue to perform all Obligations.
4.2 After termination and when Bank has received payment in
full of all Obligations and upon the execution and delivery by Borrower to Bank
of a general release in favor of Bank, Bank shall execute a termination of all
security agreements and security interests given by Borrower to Bank.
5. CONDITIONS PRECEDENT
As conditions precedent to the making of the loans and the
extension of the financial accommodations hereunder, Borrower shall execute, or
cause to be executed, and deliver to Bank, in form and substance satisfactory to
Bank and its counsel, the following:
(a) This Agreement, the Loan Term Sheet and other documents
required by Bank;
(b) A certificate of good standing showing that Borrower is
in good standing under the laws of the state of its incorporation and indicating
that Borrower has qualified to transact business and is in good standing in any
other state in which it conducts business;
(c) UCC searches, tax lien and litigation searches,
fictitious business name statement filings, insurance certificates, notices or
other similar documents which Bank may require and in such form as Bank may
require, in order to fully consummate all of the transactions contemplated under
this Agreement;
(d) Evidence that Borrower has obtained insurance and
acceptable endorsements as detailed in the Loan Term Sheet;
(e) Warranties and representations of officers;
(f) Continuing Guaranty as detailed in the Loan Term Sheet;
(g) Duly executed pledge agreements as detailed in the Loan
Term Sheet; and
(h) Accreditif in favor of Bank in the sum of Thirty Five
Million Dollars ($35,000,000) issued by BNP Paribas, Lyon, France.
6. WARRANTIES, REPRESENTATIONS AND COVENANTS
In order to induce Bank to enter into this Agreement and to make
the loans and extensions of credit contemplated hereunder, Borrower warrants,
represents and agrees that until all of the Obligations are fully paid and
performed:
6.1 All accounts are and will, at all times pertinent
hereto, be bona fide existing obligations created by the sale and delivery of
merchandise or the rendition of services to account debtors in the ordinary
course of business, free of all liens, claims, encumbrances and security
interests (except as held by Bank and except as may be consented to, in writing,
by Bank) and are unconditionally owed to Borrower without defenses, disputes,
offsets, counterclaims, rights of return or cancellation, and Borrower shall
have received no notice of actual or imminent bankruptcy or insolvency of any
account debtor at the time an account due from such account debtor is assigned
to Bank.
6.2 Borrower covenants and agrees that Borrower shall keep
the Inventory only at the address provided in the Loan Term Sheet. In addition,
Borrower covenants and agrees that:
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(a) All Inventory is now and at all times hereafter
shall be of good and merchantable quality, free from defects;
(b) As provided in the Loan Term Sheet or at Bank's
request, Borrower shall, from time to time hereafter, execute and deliver to
Bank designations of Inventory, in form acceptable to Bank, specifying
Borrower's cost and the wholesale market value of Borrower's raw materials, work
in process, finished goods, and further specifying any other category which Bank
may request, as well as such other matters and information relating to the
Inventory as Bank may request;
(c) All of the Inventory is and shall remain free
from all liens, claims, encumbrances, and purchase money or other security
interests (except as may be consented to, in writing, by Bank);
(d) Borrower does now keep and hereafter at all
times shall keep correct and accurate records itemizing and describing the kind,
type, quality and quantity of the Inventory, and the cost therefor, all of which
records shall be available upon demand to any of Bank's officers, agents and
employees for inspection and copying; and
(e) Bank shall have the right, during Borrower's
usual business hours, to inspect and examine the Inventory and to check and test
the same as to quality, quantity, value and condition.
6.3 Borrower will not, without Bank's prior written consent:
(a) Change Borrower's name, business structure, or
identity, or add any new fictitious name;
(b) Acquire, merge or consolidate with or into any
other business organization;
(c) Enter into any transaction not in the normal
course of Borrower's business as presently conducted;
(d) Guaranty or otherwise become in any way liable
with respect to the obligations of any third party except by endorsement of
instruments or items of payment for deposit to the general account of Borrower
or which are transmitted or turned over to Bank;
(e) Make any change in Borrower's financial
structure or in any of Borrower's business objective, purposes, or operations
which could adversely affect the ability of Borrower to repay the Obligations;
(f) Incur any debts outside the ordinary course of
Borrower's business, except for renewals or extensions of existing debts;
(g) Make any advance or loan to any other person or
entity including those to any officer, director, employee or shareholder or any
indebtedness for borrowed money except in the ordinary course of business as
presently conducted;
(h) Prepay any existing indebtedness owing to any
third party;
(i) Suspend or go out of business;
(j) Grant any security interests in or permit a
lien, claim or encumbrance upon all or any portion of Borrower's assets, except
in favor of or agreed to by Bank; and
(k) Transfer or suffer the transfer of effective
ownership or control of Borrower.
6.4 Borrower's sole place of business or chief executive
office is located at the address set forth in the Loan Term Sheet and Borrower
covenants and agrees that Borrower will not, during the term of this Agreement,
without prior written notification to Bank, relocate said sole place of business
or chief executive office.
6.5 Borrower is and shall at all times hereafter be a duly
organized and existing legal entity and qualified and licensed to do business,
and in good standing, in any state in which it conducts its business.
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6.6 Borrower has the right and power and is duly authorized
to enter into this Agreement.
6.7 The execution by Borrower of this Agreement shall not
constitute a breach of any provision contained in Borrower's Articles of
Incorporation or bylaws.
6.8 Borrower will not, without Bank's prior written consent,
make any distribution or declare or pay any dividends (in cash or stock) on, or
purchase, acquire, redeem or retire any of its capital stock, of any class,
whether now or hereafter outstanding, except as detailed in the Loan Term Sheet.
6.9 The execution of and performance by Borrower of all of
the terms and provisions contained in this Agreement shall not result in a
breach of or constitute an event of default under any agreement to which
Borrower is now or hereafter becomes a party.
6.10 Borrower shall promptly notify Bank in writing of
Borrower's acquisition by purchase, lease or otherwise of any after-acquired
tangible property, with the exception of purchases of Inventory in the ordinary
course of business.
6.11 All assessments and taxes, whether real, personal or
otherwise, due or payable by, or imposed, levied or assessed against, Borrower
or any of Borrower's property have been paid, and shall hereafter be paid in
full, before delinquency. Borrower shall make due and timely payment or deposit
of all federal, state and local taxes, assessment or contributions required of
Borrower by law, and will execute and deliver to Bank, on demand, appropriate
certificates attesting to the payment or deposit thereof. Borrower will make
timely payment or deposit of all F.I.C.A. payments and withholding taxes
required by Borrower by applicable laws, and will, upon request, furnish Bank
with proof satisfactory to Bank that Borrower has made such payments or
deposits. If Borrower fails to pay any such assessment, tax, contribution, or
make such deposit, or furnish the required proof, Bank may, in Bank's sole and
absolute discretion and without notice to Borrower, (a) make payment of the same
or any part thereof, or (b) set up such reserves in Borrower's account as Bank
deems necessary to satisfy the liability therefore, or both. Bank may
conclusively rely on the usual statements of the amount owing or other official
statements issued by the appropriate governmental agency. Each amount paid or
deposited by Bank shall constitute Bank Expenses and an advance to Borrower.
Nothing herein contained shall preclude Borrower from contesting, in good faith
and by appropriate proceedings, the imposition of any assessments and taxes and
to withhold payment of such contested amounts pending the resolution of such
proceedings.
6.12 There are not at present, any action or proceeding
pending by or against Borrower or any guarantor of Borrower before any court or
administrative agency, and Borrower has no knowledge of any pending, threatened
or imminent litigation, governmental investigations or claims, complaints,
actions or prosecutions involving Borrower or any guarantor of Borrower, except
for ongoing collection matters and except as heretofore disclosed, in writing,
to Bank.
6.13 Borrower represents and warrants to Bank that:
(a) The Borrower is not in violation of or subject
to any existing, pending, or threatened investigation by any governmental
authority under any law, statute, ordinance, or regulation pertaining to health,
industrial hygiene, or the environment (collectively referred to as
"Environmental Laws"), including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 ('CERCLA") as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 1801 et seq., the Federal Water Pollution
Control Act, 33 U.S.C. Sections 1251 et seq., the Clear Air Act, 42 U.S.C.
Sections 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601
et seq., the Refuse Act, 33 U.S.C. Sections 407 et seq., the Emergency Planning
and Community Right-To-Know Act, 42 U.S.C. Sections 11001 et seq., the
provisions of the California Health and Safety Code Sections 25100, et seq.,
Sections 25220, et seq., Sections 25249.5 et seq., Sections 25280, et seq., the
Carpenter-Presely-Tanner Hazardous Substance Account Act, Health and Safety
Code, Sections 25300, et seq., the California Expedited Remedial Action Reform
Act of 1994, Health and Safety Code, Sections 25396 et seq., and the
Porter-Cologne Water Quality Control Act, Water Code Sections 13000, et seq.;
(b) Borrower has not and is not required by any
Environmental Law to obtain any permits or license to conduct business;
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(c) No investigation, administrative order, consent
order and agreement, litigation or settlement with respect to Hazardous
Substances or Hazardous Substances contamination is proposed, threatened,
anticipated or in existence with respect to the Borrower;
(d) Borrower has not received any notice from any
governmental authority with respect to any violation of any Environmental Laws;
(e) The use which Borrower makes and intends to make
of the Collateral will not result in the disposal or release of any Hazardous
Substances; and
(f) Borrower will not generate, manufacture,
transport, store, release, discharge, or dispose of any hazardous Substance and
Borrower shall not cause any violation of any Environmental Laws.
The term "Hazardous Substance" shall include:
(i) those substances included within the definitions of "hazardous substances,"
"hazardous materials," "toxic substances," or "solid waste" in CERCLA, RCRA, and
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., and
in the regulations promulgated pursuant to said laws; (ii) those substances
defined as "hazardous wastes" in Section 25117 of the California Health & Safety
Code, and in the regulations promulgated pursuant to said laws; (iii) those
substances defined as "hazardous substances listed in Section 2929.5 of the
California Civil Code; (iv) those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and amendments thereto); (v)
those substances defined as "medical wastes" in the Medical Waste Management
Act, Chapter 6.1 of the California Health & Safety Code; (vi) asbestos
containing materials; (vii) polychlorinated biphenyl; (viii) underground storage
tanks, whether empty, filled or partially filled with any substance; and (ix)
such other substances, materials and wastes which are or become regulated under
applicable local, state or federal law, or which are classified as hazardous or
toxic under federal, state, or local laws or regulations or which, even if not
so regulated, are known to pose a hazard to the health and safety of the
occupants of the Property or of property adjacent to the Property.
Borrower shall give prompt written notice to Lender of:
(1) any proceeding or inquiry by any governmental
authority (including, without limitation, the California State Department of
Health Services) with respect to the violation of any Environmental Law by
Borrower; and
(2) all claims made or threatened by any third party
against Borrower relating to any loss or injury resulting from any Hazardous
Substance.
Bank shall have the right, at its option and expense, to
join and participate in, as a party if it so elects, any legal proceedings or
actions initiated by or against Borrower in connection with any Environmental
Law.
Borrower shall indemnify and hold harmless Bank, its
directors, officers, employees, agents, successors and assigns from and against,
any loss, damages, cost, expense or liability directly or indirectly arising out
of or attributable to the use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal, or presence of a Hazardous
Substance on, under or about the Borrower's business property, or any order,
consent decree or settlement relating to the cleanup of a Hazardous Substance,
or any claims of loss, damage, liability, expense or injury relating to or
arising from, directly or indirectly, any disclosure by Lender to anyone of
information, whether true or not, relative to a Hazardous Substance and/or
Environment Law violation, including without limitation, attorneys' fees. This
indemnity shall survive the termination of this Agreement (whether by payment of
the Obligations or action in lieu thereof). Notwithstanding the above, the
indemnification obligation of Borrower hereunder only shall apply to the extent
Borrower is responsible for the use, generation, manufacture, production,
storage, release, threatened release, discharge, disposal or presence of the
Hazardous Substance in question.
6.14 Borrower, at Borrower's expense, shall keep and
maintain Borrower's assets insured against loss or damage by fire, theft,
explosion, sprinklers and all other hazards and risks ordinarily insured against
by other owners who use such properties in similar businesses in an amount not
less than one hundred percent (100%) of the full insurable value thereof on a
replacement cost basis, with an inflation guard endorsement, if available.
Borrower shall also keep and maintain public liability and property damage
insurance relating to Borrower's ownership and use of the Collateral and
Borrower's other assets. All such policies of insurance shall be in such form,
with such companies, and in such amounts as detailed in the Loan Term Sheet and
as may be satisfactory to Bank.
8
<PAGE> 9
Borrower shall deliver to Bank copies of such policies of insurance. Copies of
all renewal and replacement policies shall be delivered to Bank at least thirty
(30) days before the expiration of the policies. All such policies of insurance
(except those of public liability and property damage) shall contain an
endorsement in a form satisfactory to Bank showing Bank as a loss payee thereof,
with a waiver of warranties (Form 438-BFU), and all proceeds payable thereunder
shall be payable to Bank and, upon receipt by Bank, shall be applied on account
of the Obligations owing to Bank. To secure the payment of the Obligations,
Borrower grants Bank a security interest in and to all such policies of
insurance (except those of public liability and property damage) and the
proceeds thereof, and Borrower shall direct all insurers under such policies of
insurance to pay all proceeds thereof directly to Bank.
Borrower hereby irrevocably appoints Bank (and any of
Bank's officers, employees or agents designated by Bank) as Borrower's
attorney-in-fact for the purpose of making, settling and adjusting claims under
such policies of insurance, endorsing the name of Borrower on any check, draft,
instrument or other item of payment for the proceeds of such policies of
insurance and for making all determinations and decisions with respect to such
policies of insurance. Borrower will not cancel any of such policies without
Bank's prior written consent. Each such insurer shall agree by endorsement upon
the policy or policies of insurance issued by it to Borrower as required above,
or by independent instruments furnished to Bank, that it will give Bank at least
ten (10) days written notice before any such policy or policies of insurance
shall be altered or canceled, and that no act or default of Borrower, or any
other person, shall affect the right of Bank to recover under such policy or
policies of insurance required above or to pay any premium in whole or in part
relating hereto. Bank, without waiving or releasing any Obligations or any Event
of Default, may, but shall have no obligation to do so, obtain and maintain such
policies of insurance and pay such premiums and take any other action with
respect to such policies which Bank deems advisable. All sums so disbursed by
Bank, as well as reasonable attorneys' fees, court costs, expenses and other
charges relating thereto, shall constitute Bank Expenses and are payable on
demand. Bank shall not by the fact of approving, disapproving, accepting,
preventing, obtaining, or failing to notify Borrower or to obtain any insurance,
incur any liability for or with respect to the existence of insurance, the
amount of insurance carried, the form or legal sufficiency of insurance
contracts, solvency of insurance companies, or payment or defense of lawsuits,
and Borrower hereby expressly assumes full responsibility therefor and all
liability, if any, with respect thereto.
6.15 All financial statements and information relating to
Borrower which have been or may hereafter be delivered by Borrower to Bank are
true and correct and have been prepared in accordance with generally accepted
accounting principles consistently applied, and there has been no material
adverse change in the financial condition of Borrower since the submission of
such financial information to Bank.
6.16 Borrower at all times hereafter shall maintain a
standard and modern system of accounting in accordance with generally accepted
accounting principles consistently applied, and records pertaining to all
Collateral for the obligations which contain information as may from time to
time be requested by Bank. Borrower shall not modify or change Borrower's method
of accounting or enter into, modify, or terminate any agreement presently
existing, or at any time hereafter entered into with any third party accounting
firm and/or service bureau for the preparation and/or storage of Borrower's
accounting records without giving Bank ten (10) days prior written notice of any
such change, and without said accounting firm and/or service bureau agreeing to
provide to Bank information regarding the Collateral and Borrower's financial
condition. In this regard, Borrower agrees to use Borrower's best efforts to
secure a tripartite agreement, in Bank's standard form, between Bank, Borrower
and Borrower's accounting firm and/or service bureau. Borrower agrees to permit
Bank and any of Bank's employees, officers or agents, upon demand, during
Borrower's usual business hours, or the usual business hours of third persons
having control thereof, to have access to and examine all of Borrower's Books
relating to the Collateral, the Obligations, Borrower's financial condition and
the results of Borrower's operations, and, in connection therewith, permit Bank
or any of Bank's agents, employees or officers to copy and make extracts
therefrom. Borrower agrees to pay Bank for audits as detailed in the Loan Term
Sheet.
Borrower agrees to deliver to Bank financial information
or other data as detailed in the Loan Term Sheet or any other report requested
by Bank relating to the Collateral and the financial condition of Borrower,
together with a certificate signed by an authorized employee of Borrower to the
effect that all reports, statements, computer disc or tape files, printouts,
runs, or other computer prepared information of any kind or nature relating to
the foregoing, or documents delivered or caused to be delivered to Bank under
this subsection, are complete, correct, and thoroughly present the financial
condition of Borrower and that there exists on the date of delivery to Bank no
condition or event which constitutes a breach or Event of Default under this
Agreement. Borrower shall comply with any request and shall treat any written
request as a continuing obligation until expressly modified or terminated in
writing.
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<PAGE> 10
All accounting terms and computations shall be based
upon generally accepted accounting principles consistently applied.
Borrower and its Subsidiaries shall be Year 2000
Compliant on or before December 31, 1999 and at all times thereafter.
"Year 2000 Compliant" shall mean the ability of the
software and other processing capabilities of Borrower and its Subsidiaries to
correctly interpret and manipulate all data, in whatever form including printed
form, screen displays, financial records, calculations and loan-related data, so
as to avoid errors in processing that may otherwise occur because of the
inability of the software or other processing capabilities to recognize
accurately the year 2000 or subsequent dates.
6.17 Borrower shall promptly supply and cause any guarantor
to supply Bank with such other information, including tax returns, concerning
Borrower's and any guarantor's affairs as Bank may request from time to time
hereafter, and shall promptly notify Bank of any material adverse change in
Borrower's financial condition and of any condition or event which constitutes a
breach of or an event which constitutes an Event of Default under this
Agreement.
6.18 Borrower is now and shall be at all times hereafter
solvent and able to pay Borrower's debts (including trade debts) as they mature.
6.19 Borrower shall maintain financial ratios as provided in
the Loan Term Sheet.
6.20 Borrower shall immediately and without demand reimburse
Bank for all sums expended by Bank which constitute Bank Expenses and Borrower
hereby authorizes and approves all advances and payments by Bank for items
constituting Bank expenses.
6.21 Borrower shall furnish to Bank: (a) as soon as possible,
but in no event later than thirty (30) days after Borrower knows or has reason
to know that any reportable event with respect to any deferred compensation plan
has occurred, a statement of the chief financial officer of Borrower setting
forth the details concerning such reportable event and the action which Borrower
proposes to take with respect thereto, together with a copy of the notice of
such reportable event given to the Pension Benefit Guaranty Corporation, if a
copy of such notice is available to Borrower; (b) promptly after the filling
thereof with the United States Secretary of Labor or the Pension Benefit
Guaranty Corporation, copies of each annual report with respect to each deferred
compensation plan; (c) promptly after receipt thereof, a copy of any notice
Borrower may receive from the Pension Benefit Guaranty Corporation or the
Internal Revenue Service with respect to any deferred compensation plan;
provided, however, this subparagraph shall not apply to notice of general
application issued by the Pension Benefit Guaranty Corporation or the Internal
Revenue Service; and (d) when the same is made available to participants in the
deferred compensation plan, all notices and other forms of information from time
to time disseminated to the participants by the administrator of the deferred
compensation plan.
6.22 Except for permitted investments, Borrower shall keep
Borrower's principal bank accounts with banks agreed upon between Borrower and
Bank.
6.23 Borrower is now and shall at all times hereafter remain
in compliance with all federal, state and municipal laws, regulations and
ordinances relating to the handling, treatment and disposal of toxic substances,
wastes and hazardous materials and shall maintain all necessary authorizations
and permits.
6.24 Each warranty, representation and agreement contained in
this Agreement shall be automatically deemed repeated with each financial
accommodation and shall be conclusively presumed to have been relied on by Bank
regardless of any investigation made or information possessed by Bank. The
warranties, representations and agreements set forth herein shall be cumulative
and in addition to any and all other warranties, representations and agreements
which Borrower shall give, or cause to be given, to Bank, either now or
hereafter.
6.25 Notwithstanding any other provision of this Section 6,
if an event occurs the effect of which is to put Borrower in a position where it
is not in compliance with a covenant set forth above, Borrower shall be deemed
to be in compliance with such covenant unless Borrower is not in compliance with
the covenant within a reasonable time after it learns of the fact that it is not
in compliance.
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<PAGE> 11
7. EVENTS OF DEFAULT
Any one or more of the following shall constitute an Event of
Default by Borrower under this Agreement:
7.1 If Borrower fails to pay when due and payable, or when
declared due and payable, all or any portion of the Obligations owing to Bank
(whether of principal, interest, taxes, reimbursement of Bank Expenses, or
otherwise);
7.2 If Borrower fails or neglects to perform, keep or
observe any term, provision, condition, covenant, agreement, warranty or
representation contained in his Agreement and the Loan Term Sheet, or any other
present or future agreement between Borrower and Bank;
7.3 If any representation, statement, report, or certificate
made or delivered by Borrower, or any of Borrower's officers, employees or
agents, to Bank is not true and correct to the best of Borrower's knowledge;
7.4 If there is a material impairment of the prospect of
repayment of all or any portion of the Obligations owning to Bank or a material
impairment of the value or priority of Banks security interests in the
collateral;
7.5 If all or any of Borrower's assets are attached, seized,
subjected to a writ or distress warrant, or are levied upon, or come into the
possession of any Judicial Officer or Assignee;
7.6 If an Insolvency Proceeding is commenced by or against
Borrower;
7.7 If Borrower is enjoined, restrained or in any way
prevented by court order from continuing to conduct all or any material part of
Borrower's business affairs;
7.8 If a notice of lien, levy or assessment is filed of
record with respect to any or all of Borrower's material assets by the Unites
States of America, or any department, agency or instrumentality thereof, or by
any state, county, municipal or other governmental agency, or if any taxes or
debts owing at any time hereafter to any one or more of such entities becomes a
lien, whether chosen or otherwise, upon any or all of the Borrower's assets and
or the same is not paid on the payment date thereof and such lien, levy or
assessment shall not have been discharged by payment in full within thirty (30)
days;
7.9 If a judgment or other claim becomes a lien or
encumbrance upon any or all of Borrower's assets;
7.10 If there is a default in any material agreement to which
Borrower is a party with third parties resulting in a right by such third
parties to accelerate the maturity of Borrower's indebtedness, which could
jeopardize repayment of Borrower's indebtedness to Bank.
7.11 If Borrower makes any payment on account of indebtedness
which has been subordinated to the Obligations which has not been authorized by
Bank;
7.12 If any material or intentional misrepresentation exists
now or hereafter in any warranty or representation made to Bank by any officer
or director of Borrower, or if any such warranty or representation is withdrawn
or denied by any officer or director;
7.13 If any party subordinating a claim to those of Bank or
guarantying the Obligations or any part thereof, terminates such subordination
or guaranty, or becomes subject to an Insolvency Proceeding; and
7.14 If any reportable event, which the Bank determines
constitutes grounds for the termination of any deferred compensation plan by the
Pension Benefit Guaranty Corporation or for the appointment by the appropriate
United States District Court of a trustee to administer any such plan, shall
have occurred and be continuing thirty (30) days after written notice of such
determination shall have been given to Borrower by Bank, or any such plan shall
be terminated within the meaning of Title IV of the Employment Retirement Income
Security Act ("ERISA"), or a trustee shall be appointed by the appropriate
United States District Court to administer any such plan, or the Pension Benefit
Guaranty Corporation shall institute proceedings to terminate any plan and in
case of an event described in this Section 7.14, the aggregate amount of
Borrower's liability to the Pension Benefit Guaranty
11
<PAGE> 12
Corporation under Sections 4062, 4063 or 4064 of ERISA shall exceed five percent
(5%) of Borrower's Tangible Net Worth.
Notwithstanding anything contained in this Article 7 to
the contrary, Bank shall refrain from exercising its rights and remedies and an
Event of Default shall be deemed not to have occurred by reason of the
occurrence of such Event of Default if, within fifteen (15) days from the date
thereof, the same is released, discharged, dismissed, bonded against or
satisfied; provided, however, if any such event has occurred, Bank shall not be
obligated to extend any credit accommodations to Borrower during such cure
period.
8. BANK'S RIGHTS AND REMEDIES
8.1 Upon the occurrence of an Event of Default by Borrower
under this Agreement, Bank may, at Bank's election, without notice of such
election and without demand, do any one or more of the following, all of which
are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by
this Agreement, by notes, or otherwise, immediately due and payable;
(b) Cease advancing money or extending credit to or
for the benefit of Borrower under this Agreement, or any other agreement between
Borrower and Bank;
(c) Terminate this Agreement as to any future
liability or obligation of Bank, but without affecting Bank's rights and
security interest in the Collateral and without affecting the Obligations owning
by Borrower to Bank;
(d) Without notice to or demand upon Borrower or any
guarantor, make such payments and do such acts as Bank considers necessary or
reasonable to protect Bank's security interest in the Collateral. Borrower
agrees to assemble the Collateral if Bank so requires, and to make the
Collateral available to Bank as Bank may designate. Borrower authorizes Bank to
enter the premises where the Collateral is located, take and maintain possession
of the Collateral and the premises (at no charge to Bank), or any part thereof,
and to pay, purchase, contest or compromise any encumbrance, charge or lien
which in the opinion of Bank appears to be prior or superior to Bank's security
interest and to pay all expenses incurred in connection therewith;
(e) Without constituting a retention of collateral
in satisfaction of an obligation within the meaning of Section 9505 of the Code
or an action under California Code of Civil Procedure Section 726, apply any and
all amounts maintained by Borrower with Bank as deposit accounts (as that term
is defined under Section 9105 of the Code) or other accounts against the
Obligations.
9. TAXES AND EXPENSES REGARDING THE COLLATERAL
If Borrower fails to pay promptly when due, to any other person
or entity, monies which Borrower is required to pay by reason of any provision
in this Agreement, Bank may (after consultation with Borrower), but need not,
pay the same and charge Borrower's account therefor, and Borrower shall promptly
reimburse Bank. All such sums shall become additional Obligations owning to
Bank, shall bear interest at the Default Rate hereinabove provided, and shall be
secured by the Collateral. Any payments made by Bank shall not constitute: (a)
an agreement by bank to make similar payments in the future, or (b) a waiver by
bank of any default under this Agreement. Bank need not inquire as to, or
contest the validity of, any such expense, tax, security interest, encumbrance
or lien and the receipt of the usual official notice for the payment thereof
shall be conclusive evidence that the same was validly due and owing.
10. WAIVER
10.1 Borrower waives the right to direct the application of
any and all payments, collections or proceeds at any time or times hereafter
received by Bank and Borrower agrees that Bank shall have the continuing
exclusive right to apply and reapply such payments, collections or proceeds to
the Obligations in any manner as Bank may deem advisable, notwithstanding any
entry by Bank upon Bank's books.
10.2 Borrower waives demand, protest, notice of protest,
notice of default or dishonor, notice of payment and nonpayment, notice of any
extension or renewal of any or all commercial paper, accounts, documents,
instruments, chattel paper, and guaranties at any time held by Bank on which
Borrower may in any way be liable.
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<PAGE> 13
10.3 Borrower waives the right to assert a confidential
relationship, if any, Borrower may have with any and all accountants, service
bureaus and/or consultants in connection with any information requested by Bank
pursuant to or in accordance with this Agreement, and agrees that Bank may
contact directly and accountant, service bureau and/or consultant in order to
obtain such information.
10.4 Borrower and Bank each waive any right to trial by jury
in any action or proceeding relating to this Agreement or any transaction
hereunder, or contemplated hereunder, or any claim (including tort or breach of
duty claims) or dispute howsoever arising between Bank and Borrower.
10.5 In the event that Bank elects to waive any rights or
remedies hereunder, or compliance with any of the terms hereof, or delays or
fails to pursue or enforce any term, such waiver, delay or failure to pursue or
enforce shall only be effective with respect to that single act and shall not be
construed to affect any subsequent transactions or Bank's right to later pursue
such rights and remedies.
11. NOTICES
Except for any notice required by applicable law to be given in
another manner: (a) all notices provided for in this Agreement shall be in
writing unless otherwise provided in this Agreement; (b) each such notice to
Borrower shall be given by mailing such notice by first-class mail, to
Borrower's address specified in the Loan Term Sheet, or to such other address as
Borrower may designate by notice given to Bank in the manner provided herein;
and (c) each such notice to Bank shall be given by mailing such notice by
certified mail, return receipt requested, to Bank's address specified in the
Loan Term Sheet, or to such other address as Bank may designate by notice given
to Borrower in the manner provided herein. All notices provided for in this
Agreement shall be deemed to have been given to Borrower or Bank if given in the
manner specified herein.
12. DESTRUCTION OF BORROWER'S DOCUMENTS
Any documents, schedules, invoices or other papers delivered to
Bank may be destroyed or otherwise disposed of by Bank six (6) months after they
are delivered to or received by Bank, unless Borrower does request, in writing,
the return of said documents, schedules, invoices or other papers and makes
arrangements, at Borrower's expense, for their return.
13. CHOICE OF LAW AND VENUE
This Agreement shall be deemed to have been made n the State of
California and the validity of this Agreement, its construction, interpretation
and enforcement, and the rights of the parties hereunder and concerning the
Collateral, shall be determined under, governed by and construed in accordance
with the laws of the State of California. The parties agree that all actions or
proceedings arising in connection with this Agreement shall be tried and
litigated only in the state courts located in the County of San Francisco, State
of California, or the federal courts located in the Northern District of
California. Borrower waives any right Borrower may have to assert the doctrine
of forum non convenient's or to object to such venue and hereby consents to any
court-ordered relief.
14. GENERAL PROVISIONS
14.1 This Agreement shall be binding and deemed effective
when executed by Borrower and accepted and executed by Bank.
14.2 This Agreement shall bind and inure to the benefit of
the respective successors and assigns of each of the parties; provided, however,
that Borrower may not assign this Agreement or any rights hereunder without
Bank's prior written consent and any prohibited assignment shall be absolutely
void. No consent to an assignment by Bank shall release Borrower or any
guarantor from any of their respective obligations to Bank. Bank may assign this
Agreement and its rights and duties hereunder. Bank reserves the right to sell,
assign, transfer, negotiate or grant participation in all or any part of, or any
interest in, Bank's rights and benefits hereunder. In connection therewith, Bank
may disclose all documents and information which Bank now or hereafter may have
relating to Borrower or Borrower's business.
14.3 Article headings and section numbers have been set forth
herein for convenience only. Unless the contrary is compelled by the context,
everything contained in each section applies equally to this entire Agreement.
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<PAGE> 14
14.4 Neither this Agreement, nor any uncertainty or ambiguity
herein shall be construed or resolved against Bank or Borrower, whether under
any rule of construction or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of the parties hereto.
14.5 Each provision of this Agreement shall be severable from
every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
14.6 This Agreement cannot be changed or terminated orally.
Except as to currently existing Obligations owing by Borrower to Bank, all prior
agreements, understandings, representations, warranties, and negotiations, if
any, are merged into this Agreement.
IN WITNESS WHEREOF, Borrower has executed this Agreement this 28th day
of September, 2000.
Infogrames, Inc.
By: /s/ David Fremed
--------------------------------
(Authorized Signature)
Title: Senior Vice President of Finance
and Chief Financial Officer
--------------------------------
ACCEPTED THIS 28th DAY OF SEPTEMBER, 2000 AT BANK'S PLACE OF BUSINESS IN THE
CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA.
"BANK"
BNP PARIBAS
ACTING THROUGH ITS SAN FRANCISCO BRANCH
By: /s/ Inga Buschbaum
--------------------------------
(Authorized Signature)
Title: Vice President and Manager
BNP International Division
San Francisco, CA
--------------------------------
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<PAGE> 15
BNP PARIBAS
San Francisco Branch
180 Montgomery Street
(415)772-1300
Loan Term Sheet No.1
DATE: September 28, 2000
BORROWER: INFOGRAMES, INC.
417 FIFTH AVENUE
NEW YORK, N.Y. 10016
MAXIMUM CREDIT LIMIT
--------------------
$35,000,000 Unsecured committed revolving line of credit to
finance the purchase of interactive games. (Maximum
Credit Limit).
(35,000,000) For the issuance of sight or up to 90 day usance
commercial letters of credit. Validity of letters of
credit not to exceed 120 days. (First Maximum
Sublimit).
(35,000,000) For the issuance of Standby Letters of Credit in favor
of suppliers in support of open account purchase
terms. Standby Letters of Credit to manure 180 days
from issuance or at maturity of the credit line
whichever comes first. (Second Maximum Sublimit).
(35,000,000) For advances to finance drawings under commercial
letters of credit, for bankers acceptances under usance
letters of credit, and for general working capital
purposes. (Third Maximum Sublimit).
-----------
$35,000,000 MAXIMUM CREDIT LIMIT
MATURITY: June 15, 2001
INTEREST: LIBOR plus 65 bps per annum, fixed, or BNP PARIBAS
Prime Rate minus 1% p.a., floating. For prime rate
based loans interest is payable monthly. LIBOR based
loans are available up to 180 days with interest
payable at maturity or quarterly and at maturity for
loans with maturities in excess of 90 days.
DEFAULT RATE: Interest rate above plus 3% p.a.
<PAGE> 16
LETTER OF
CREDIT Commercial Letters of Credit
FEES: ----------------------------
All-in processing fee of 20 bps, flat, payable quarterly
in arrears. This fee is calculated based on the aggregate
principal amount of commercial letters of credit issued
during the quarter and includes letter of credit issuance,
amendment and negotiation costs.
Acceptance Commission 90 bp per annum, min. $100.00
L/C Margin 10 bp per annum payable quarterly
in arrears, calculated based on
the aggregate principal amount of
commercial letters of credit issued
during the quarter.
Standby Letters of Credit
-------------------------
All-in fee is 35 bps per annum, payable quarterly in arrears
calculated on the average principal amount of standby letters
of credit outstanding the prior quarter. This all in rate
includes issuance, amendment and negotiation.
COMMITMENT
FEE: 30 bps per annum payable quarterly in arrears. This fee is
calculated based on the average unutilized amount of the
Maximum Credit Limit the prior quarter.
FACILITY
FEE: 5 bp flat -- $17,500 payable at closing.
GUARANTEES: 1. Irrevocable, Continuing Guarantee in the amount of
$35,000,000 executed by Infogrames Entertainment
S.A., France.
2. Accreditif in the amount of $35,000,000 in favor of
BNP Paribas, San Francisco, issued by BNP Paribas,
Lyon, with an expiry date not earlier than
June 30, 2001.
FINANCIAL COVENANTS: To be determined and documented not later than
November 15, 2000.
REPORTING
REQUIREMENTS: To be determined and documented not later than
November 15, 2000.
INSURANCE
REQUIREMENTS: Borrower to provide Bank with evidence of the following
insurance coverages:
General liability insurance
Inventory insurance in an amount to cover inventory
in warehouse.
SUBORDINATED LOANS: None.
AUDITS: Bank or its agent may examine Borrower's books and records
at any reasonable time at Borrower's cost.
<PAGE> 17
This Loan Term Sheet No. 1 forms an integral part of the Loan Agreement
dated September 28, 2000.
"BANK" "BORROWER"
BNP Paribas Infogrames, Inc.
By: /s/ Inga Buschbaum By: /s/ David Fremed
-------------------------------- --------------------------------
Its: Vice President and Manager Its: Senior Vice President of Finance
BNP International Division and Chief Financial Officer
San Francisco, CA
------------------------------- -------------------------------
Date: September 28, 2000 Date: September 28, 2000
------------------------------