EXHIBIT 10.37
SECURED REVOLVING NOTE
$5,000,000.00 April 14, 2000
FOR VALUE RECEIVED, the undersigned, INTERPLAY ENTERTAINMENT CORP., a
Delaware corporation (the "Borrower"), promises to pay to the order of XXXXX
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INTERACTIVE SA, a French corporation (hereafter, together with any holder
hereof, called "Lender"), on May 1, 2001 (the "Maturity Date") at such place as
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Lender may designate in writing to Borrower, in lawful money of the United
States of America, and in immediately available funds, the principal sum of FIVE
MILLION DOLLARS ($5,000,000.00) or, if less, so much thereof as may from time to
time be advanced by Xxxxxx to Borrower pursuant to an Advance (as defined below)
hereunder, plus interest as hereinafter provided. Such Advances may be endorsed
from time to time on the Schedule of Advances attached hereto, but the failure
to make such notations shall not affect the validity of Borrower's obligation to
repay unpaid principal and interest hereunder.
Subject to the terms hereof, Xxxxxx shall make advances of funds available
hereunder ("Advances") to Xxxxxxxx. Borrower shall give Lender irrevocable
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written notice requesting an Advance at least five business days before the date
on which Borrower wishes to receive the Advance (unless a shorter period is
consented to by Xxxxx). Such Advance shall be for a minimum of $500,000.00 or
such larger amount as may be measured in increments of $500,000.00.
Notwithstanding any term or provision of this Note which may be construed to the
contrary, at no time shall Lender be required to make an Advance hereunder if
(a) an Event of Default (defined below) shall have occurred or (b) the amount of
such Advance together with the aggregate principal amount of all Advances
outstanding pursuant to this Note exceeds $5,000,000.00 (the "Maximum Amount").
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From and after the date hereof (until maturity or default as hereinafter
provided), interest shall accrue on the principal amount of this Note which is
outstanding from time to time at a rate per annum equal to ten percent (10%).
If, however, an interest rate of 10% is not allowable under California law, then
interest shall accrue on the principal amount of this Note from time to time at
a rate per annum equal to the highest maximum allowable percentage rate under
California law. Interest shall be computed on the daily outstanding principal
balance hereunder on the basis of a 365 day year, as the case may be, counting
the number of actual days elapsed. Interest shall accrue and be payable
quarterly. The principal balance of all Advances then outstanding, together
with all accrued but unpaid interest thereon shall be due and payable on the
Maturity Date or on such earlier date on which the maturity hereof is
accelerated pursuant to the provisions hereof.
From and after the occurrence of an Event of Default, interest shall accrue
on any amount past due hereunder (whether by acceleration, maturity or
otherwise) at a rate equal to five percent (5.0%) per annum in excess of the
interest rate otherwise payable
hereunder. All such interest accruing on amounts past due hereunder shall be due
and payable on demand.
The loan represented by this Note is a revolving credit line such that,
during the term hereof, Borrower may borrow, repay and re-borrow from time to
time hereunder, subject to the terms and conditions set forth herein; provided,
however, that the aggregate principal amount outstanding hereunder may increase
or decrease, but shall never exceed the Maximum Amount. Borrower, at its
option, may repay or prepay all or any portion of the outstanding principal
amount on the Advances, together with all accrued and unpaid interest, at any
time without penalty by giving Xxxxxx at least one business day's prior written
notice of any such prepayment. All payments received by Xxxxxx shall be applied
first to fees, costs and expenses which may be due to Lender, second to accrued
and unpaid interest under the Advances and third to the outstanding principal
balance of the Advances.
Notwithstanding any provision to the contrary contained in this Note,
Borrower shall not be required to pay, and Lender shall not be permitted to
collect, any amount of interest in excess of the maximum amount of interest
permitted by law ("Excess Interest"). If any Excess Interest is provided for or
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determined by a court of competent jurisdiction to have been provided for in
this Note, then in such event: (1) the provisions of this paragraph shall
govern and control; (2) Borrower shall not be obligated to pay any Excess
Interest; (3) any Excess Interest that Lender may have received hereunder shall
be, at Lender's option, (a) applied as a credit against the outstanding
principal balance of this Note or the accrued and unpaid interest (not to exceed
the maximum amount permitted by law), (b) refunded to the payor thereof, or (c)
any combination of the foregoing; (4) the interest rate provided for herein
shall be automatically reduced to the maximum lawful rate allowed from time to
time under applicable law (the "Maximum Rate"), and this Note shall be deemed to
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have been and shall be, reformed and modified to reflect such reduction; and (5)
Borrower shall not have any action against Lender for any damages arising out of
the payment or collection of any Excess Interest. Notwithstanding the
foregoing, if for any period of time interest on this Note is calculated at the
Maximum Rate rather than the applicable rate under this Note, and thereafter the
Maximum Rate exceeds the applicable rate, the rate of interest payable on this
Note shall become the Maximum Rate until Lender shall have received the amount
of interest which Lender would have received during such period on this Note had
the rate of interest not been limited to the Maximum Rate during such period.
BORROWER, AND LENDER BY ACCEPTING THIS NOTE, EACH AGREE AND STIPULATE THAT
THE ONLY CHARGE IMPOSED UPON BORROWER FOR THE USE OF MONEY IN CONNECTION WITH
THIS NOTE IS AND SHALL BE THE INTEREST DESCRIBED IN THE THIRD PARAGRAPH HEREOF,
AND FURTHER AGREE AND STIPULATE THAT ALL OTHER CHARGES IMPOSED BY XXXXXX ON
BORROWER IN CONNECTION WITH THIS NOTE, INCLUDING WITHOUT LIMITATION, ALL DEFAULT
CHARGES, LATE CHARGES, AND ATTORNEYS' FEES, ARE CHARGES MADE TO COMPENSATE
LENDER FOR UNDERWRITING OR ADMINISTRATIVE SERVICES AND COSTS OR LOSSES PERFORMED
OR INCURRED, AND TO BE PERFORMED OR INCURRED, BY LENDER IN CONNECTION WITH THIS
NOTE AND SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR THE USE OF
MONEY.
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ALL CHARGES OTHER THAN CHARGES FOR THE USE OF MONEY SHALL BE FULLY EARNED AND
NONREFUNDABLE WHEN DUE.
Each of the following events shall constitute an "Event of Default" under
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this Note: (i) failure of Borrower to pay any principal, interest or other
amount due hereunder within five (5) business days of the date due, or Borrower
shall in any way fail to comply with the other terms, covenants or conditions
contained in this Note, when such failure continues for a period of thirty (30)
days following notice thereof from Lender; (ii) any representation or warranty
made at any time by Borrower to Lender shall prove to have been incorrect or
misleading in any material respect when made; (iii) Borrower shall fail to
comply with any of the terms, covenants or conditions contained in any other
document, instrument, contract or agreement now or hereafter entered into by
Borrower and Lender or executed by Borrower in favor of Lender, when such
failure continues for a period of thirty (30) days following notice thereof from
Lender; (iv) a default, event of default, or event which with the giving of
notice or the passage of time or both would constitute a default or event of
default, shall have occurred under any document, instrument, contract or
agreement evidencing or securing indebtedness of Borrower for borrowed money in
excess of $100,000; (v) a warrant, writ of attachment, levy or other similar
process shall be issued against any property of Borrower and not vacated within
thirty (30) days; (vi) the occurrence of any "Event of Default" as defined in
that certain Reimbursement and Security Agreement dated April 13, 2000 among
Borrower and Lender (the "Security Agreement"); (vii) any security interest
granted or intended by this Note to be granted to the Lender shall cease to be a
valid and perfected security interest (except with respect to the security
interests granted to Greyrock Capital ("Greyrock") pursuant to that certain Loan
and Security Agreement, dated as of June 16, 1997 among Greyrock, Borrower and
Interplay OEM, Inc. or a lesser priority if expressly permitted by the Lender)
in any of the collateral covered or purported to be covered thereby; (viii)
final judgment or judgments (after the expiration of all times to appeal
therefrom) for the payment of money in excess of $1,000,000 in the aggregate
shall be rendered against the Borrower or any subsidiary of the Borrower; (ix)
Borrower shall (a) commence a voluntary case under the Bankruptcy Code of 1978,
as amended or other federal bankruptcy law (as now or hereafter in effect); (b)
file a petition seeking to take advantage of any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
composition for adjustment of debts; (c) consent to or fail to contest in a
timely and appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws; (d) apply for or consent to, or
fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself
or of a substantial part of its property, domestic or foreign; (e) admit in
writing its inability to pay its debts as they become due; (f) make a general
assignment for the benefit of creditors; or (g) make a conveyance fraudulent as
to creditors under any state or federal law; or (x) a case or other proceeding
shall be commenced against Borrower in any court of competent jurisdiction
seeking (a) relief under the Bankruptcy Code of 1978, as amended or other
federal bankruptcy law (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or adjustment of debts or (b) the appointment of a trustee, receiver,
custodian, liquidator or the like for Borrower or all or any substantial part of
its assets, domestic or foreign, and such proceeding shall not have been stayed
or dismissed within 60 days.
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Upon the occurrence of an Event of Default (other than an Event of Default
described in clause (ix) or (x) of the definition thereof), any and all of the
obligations hereunder, at the option of Xxxxxx, exercisable in its sole
discretion, and without demand or notice of any kind, may be immediately
declared, and thereupon shall immediately become in default and due and payable
and Lender may exercise any and all rights and remedies available to it at law,
in equity or otherwise. Upon the occurrence of an Event of Default described in
clause (ix) or (x) of the definition thereof, any and all of the obligations
hereunder, without demand or notice of any kind, shall immediately become in
default and due and payable and Lender may exercise any and all rights and
remedies available to it at law, in equity or otherwise. Nothing in this
paragraph shall limit the right of the Lender to make demand, at any time, with
or without the occurrence of an Event of Default, for payment in full of all
amounts due hereunder.
Xxxxxxxx agrees to pay all costs and expenses (including without limitation
attorney's fees) incurred by Xxxxxx in connection with or related to this Note,
or its enforcement, whether or not suit be brought.
All payments of principal, interest and other amounts to be made by
Borrower under this Note shall be made without any deduction, set-off or
counterclaim whatsoever. The receipt of any check or other item of payment by
Lender shall not be considered a payment on this Note until such check or other
item of payment is honored at the drawee bank. Lender may delay the credit of
such payment until the funds become available, and interest under this Note
shall accrue until the funds are in fact collected.
The obligations represented by this Note are secured by, and Xxxxxx is
entitled to the benefits of, the Security Agreement. Nothing herein shall be
deemed to limit any of the terms or provisions of the Security Agreement or any
other present or future document, instrument or agreement, between Borrower and
the Lender, and all of the Lender's rights and remedies hereunder and thereunder
are cumulative.
Time is of the essence of this Note.
No delay or failure on the part of Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
Lender of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy.
All amendments to this Note, and any waiver or consent of Lender, must be
in writing and signed by Xxxxxx and Xxxxxxxx.
Borrower hereby waives notice of default, presentment or demand for
payment, protest or notice of nonpayment or dishonor, and all other notices or
demands of any kind or character, and to the fullest extent permitted by law,
the right to invoke any statute of limitations as a defense to any demand
hereunder. No delay or failure on the part of the Lender in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy. Xxxxxxxx acknowledges that this
Note is executed as part of a commercial transaction and that the proceeds of
this Note will not be used for any personal or consumer purpose.
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THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) OF THE STATE OF
CALIFORNIA, AS THE SAME MAY FROM TIME TO TIME BE IN EFFECT. BORROWER HEREBY (i)
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL COURT, OR AT THE OPTION
OF LENDER, ANY STATE COURT, LOCATED IN LOS ANGELES COUNTY, CALIFORNIA OVER ANY
CLAIMS OR DISPUTES BETWEEN BORROWER AND LENDER, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS NOTE OR TO ANY MATTER ARISING THEREFROM OR RELATING THERETO;
(ii) WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON BORROWER, AND CONSENTS
THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MESSENGER, CERTIFIED MAIL OR
REGISTERED MAIL AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE
EARLIER OF ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN
POSTED TO BORROWER'S ADDRESS; (iii) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING; (iv) AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW; AND (v) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST
LENDER OR ANY OF XXXXXX'S EMPLOYEES, AGENTS OR PROPERTY, CONCERNING ANY MATTER
ARISING OUT OF OR RELATING TO THIS NOTE IN ANY COURT OTHER THAN ONE LOCATED IN
LOS ANGELES COUNTY, CALIFORNIA. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR
IMPAIR XXXXXX'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW OR
XXXXXX'S RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR BORROWER'S
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
LENDER AND BORROWER EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i)
THIS NOTE; OR (ii) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN
XXXXXX AND BORROWER PERTAINING TO BORROWED MONEY; OR (iii) ANY CONDUCT, ACTS OR
OMISSIONS OF LENDER OR BORROWER OR ANY OF THEIR EMPLOYEES, AGENTS, ATTORNEYS OR
ANY OTHER PERSONS AFFILIATED WITH LENDER OR BORROWER ARISING OUT OF THE
TRANSACTIONS CONTEMPLATED HEREBY; IN EACH OF THE FOREGOING CASES, WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND WITH A
FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF.
In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable, the same shall not
affect any other provision of this Note and the remaining provisions of this
Note shall remain in full force and effect.
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This Note inures to and binds the heirs, successors and assigns of Xxxxxxxx
and Xxxxxx. Lender may assign its rights under this Note. However, Borrower
may not assign any rights or obligations under this Note without Xxxxxx's prior
written consent.
All notices and other communications provided for hereunder shall be in
writing and shall be sent to Xxxxxx's principal place of business or Xxxxxxxx's
address set forth below its signature hereto, as the case may be. All such
notices and other communications shall be effective when received.
IN WITNESS WHEREOF, Xxxxxxxx has executed and delivered this Promissory
Note as of the date and year first written above.
INTERPLAY ENTERTAINMENT CORP.
By: /s/ Xxxxx Xxxxx
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Name:
Title:
Address for notices:
Interplay Entertainment Corp.
00000 Xxx Xxxxxx Xxx
Xxxxxx, Xxxxxxxxxx 00000
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Schedule of Advances
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Xxxxxx
Xxxxxx of Unpaid
of Principal Principal Notation
Date Advance Paid or Repaid Balance made by
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