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Exhibit 10.31
Zwaaneveld o Loonstein o Gorissen o Eisenmann, advocaten
FINANCING CONTRACT
The undersigned:
1. the body corporate under foreign law OPAL FINANCE CORPORATION LTD.,
registered office in Xx. Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx Xxxxxxx, with offices,
inter alia, in Amsterdam, hereinafter to be referred to as "Opal";
and
2. the body corporate under the law of the United Kingdom T.HQ International
Limited, registered office in Epsom, Surrey (United Kingdom), hereinafter to be
referred to as "THQ";
and
3. the body corporate under the law of Germany T.HQ Deutschland GmbH,
registered office in Munchen (Germany), hereinafter to be referred to as "THQ";
whereas:
Opal is a financing company which will provide funds to THQ, an enterprise
engaged in the production of and trade in software for the (computer) games
industry, solely for the import of "Nintendo" and "Sega" game software,
hereinafter to be referred to as "the goods", to be imported from Japan;
Opal will open commercial documentary sight Letters of Credit for this purpose
for a total amount of USD 1,750,000.00, hereinafter to be referred to as: "the
funds", as soon as the terms and conditions laid down in this contract and/or
the law have been fulfilled, in particular after THQ has fulfilled in its
obligations as laid down in article 6 of this contract;
declare that they have agreed the following:
1. The preamble shall form part of this contract.
2. The goods shall be imported from Japan into the United Kingdom and
Germany in Opal's name but in actual fact by THQ, be stored by THQ under
Opal's name and be distributed in the above-mentioned countries by
and/or on behalf of THQ. These orders shall only be placed after Opal
has been given the opportunity to review the purchase orders to Nintendo
Corporation of America Ltd and/or Nintendo Company Ltd and/or Sega
Enterprises Inc. and after Opal's consent in writing;
3. All offers and/or sales contracts made/concluded by THQ to/with its
customers shall require Opal's prior inspection and shall also require
Opal's prior consent. THQ shall, for this purpose provide Opal inter
alia with a copy of the
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Zwaaneveld o Loonstein o Gorissen o Eisenmann, advocaten
offer, an estimate of the costs and all other information which could in
fairness influence the assessment by Opal. All sales contracts in
respect of the goods between THQ and its customers shall be insured by
THQ against default of payment by its customers with Hermes Credit
Service. All costs attached thereto shall be borne by THQ. In these
credit insurance policies Opal shall be named as the sole loss payee and
Opal shall, furthermore, be entitled to have (direct) recourse on the
debtors and will have the right to submit claims under the insurance
policy;
4. All offers and invoices relating to the trade in the goods by THQ shall
clearly designate as the sole place of payment: 1. a bank account in the
name of Opal or 2. bank accounts in the name of THQ in which Opal is
the only authorised signatory. THQ shall not be allowed to receive
payments in any other way without Opal's explicit prior consent in
writing;
5. All moneys and/or values to be received by THQ from the sale of the
goods shall be transferred immediately to Opal by way of reduction of
the capital provided by Opal. A further contract may be entered into
between the parties to the extent that 25% of the money to be received
by THQ shall be retained by the latter as working capital whereas the
remaining 75% shall be transferred to Opal as mentioned above;
6. To insure Opal's rights THQ shall establish a (quiet) right of pledge,
in accordance with section 3:237 of the Dutch Civil Code, on all THQ's
goods, moneys and values, including, inter alia, THQ's inventory and
THQ's claims on third parties as described below in article 7, for the
benefit of Opal. THQ shall cooperate in the execution of one or more
authentic deeds of pledge before a competent civil law notary in The
Netherlands;
7. On the basis of the deed(s) of pledge to be passed pursuant to article 6
of this contract, Opal shall obtain:
- a first pledge on THQ's stocks. Opal shall receive from THQ, always
on the 10th of each month at the latest, a statement of the stocks as
per the end of previous month;
- a first pledge on the company furniture and equipment (insofar as
available) of THQ;
- a first pledge on THQ's accounts receivable. THQ shall provide Opal
with an accounts receivable aging report, signed in a legally valid
manner, of accounts receivable pledged to Opal, at the latest on the
10th of each month, simultaneously with THQ's stock list;
- a first pledge on the rights under THQ's credit insurance policies;
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8. All companies associated with THQ in the United States of America,
France, Germany and Hong Kong shall submit a statement to Opal in
writing that they are familiar with the contents of this contract and
these companies shall, in addition, confirm in said document that they
will act solely in accordance with the contents of the contract and that
they will not in any way act contrary to the contract and the
obligations and provisions arising thereunder. Furthermore the body
corporate under the law of the State of New York, T.HQ Incorporated,
guarantees by undersigning this contract, towards Opal full compliance
(including payment) with this contract in case of (a) lack of
performance(s) by contract-party sub 2 and/or sub 3;
9. Immediately together with the application to open a Letter of Credit,
THQ shall pay to Opal 20% of the total value of the commercial
documentary sight Letters of Credit, to the extent that these have been
used by the former, by way of security. This security shall be
considered as the final 20% payment of the amount due by THQ (including
Opal's commission) to Opal. As long as the final 20% has not been paid,
Opal will retain these moneys by way of (extra) security. Simultaneously
with the above-mentioned payment THQ shall also pay to Opal the costs
incurred by the latter for the purpose of putting up the commercial
documentary sight Letters of Credit;
10. By way of commission for the amounts borrowed Opal shall receive from
THQ an amount equalling 4.75% of the bank commercial documentary sight
Letters of Credit opened by Opal and used by THQ. Furthermore, THQ
shall, in order to compensate Opal for the loss of interest on the
capital, pay Opal the 30 day libor from the date on which the Letters of
Credit are drawn until the date of repayment, to be increased by an
extra 4%;
11. On the date on which the capital or parts thereof have been outstanding
for more than 90 days, since the date on which the respective Letters of
Credit were drawn, THQ shall owe Opal an extra commission of 2% monthly
until the capital or the relevant part thereof has been repaid to Opal
in full.
12. THQ shall, upon request, pay the costs incurred by Opal relating to
activities and/or trips connected with the present contract in advance.
These activities shall include the trips undertaken by Opal to
California where THQ keeps offices.
13. THQ shall keep a record of all the transactions relating to this
contract in a careful manner and in accordance with the statutory
provisions and provide Opal with a complete insight therein. THQ shall
also regularly supply Opal with information concerning general matters,
whether directly or indirectly related to this contract, such as
financial, legal and fiscal matters.
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FINANCING CONTRACT
The undersigned:
1. the body corporate under foreign law OPAL FINANCE CORPORATION LTD.,
registered office in Xx. Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx Xxxxxxx, with offices,
inter alia, in Amsterdam, hereinafter to be referred to as "Opal";
and
2. the body corporate under the law of the United Kingdom T.HQ
International Limited, registered office in Epsom, Surray (United Kingdom),
hereinafter to be referred to as "THQ";
and
3. the body corporate under the law of Germany T.HQ Deutschland GmbH,
registered office in Munchen (Germany), hereinafter to be referred to as "THQ";
whereas:
Opal is a financing company which will provide funds to THQ, an enterprise
engaged in the production of and trade in software for the (computer) games
industry, solely for the import of "Nintendo" and "Sega" game software,
hereinafter to be referred to as "the goods", to be imported from Japan;
Opal will open commercial documentary sight Letters of Credit for this purpose
for a total amount of USD 1,750,000.00, hereinafter to be referred to as: "the
funds", as soon as the terms and conditions laid down in this contract and/or
the law have been fulfilled, in particular after THQ has fulfilled in its
obligations as laid down in article 6 of this contract;
declare that they have agreed the following:
1. The preamble shall form part of this contract.
2. The goods shall be imported from Japan into the United Kingdom and
Germany in Opals' name but in actual fact by THQ, be stored by THQ under
Opal's name and be distributed in the above-mentioned countries by
and/or on behalf of THQ. These orders shall only be placed after Opal
has been given the opportunity to review the purchase orders to Nintendo
Corporation of America Ltd and/or Nintendo Company Ltd and/or Sega
Enterprises Inc. and after Opal's consent in writing;
3. All offers and/or all sales contracts made/concluded by THQ to/with its
customers shall require Opal's prior
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inspected and [COPY NOT LEGIBLE] shall, for this purpose, provide Opal, inter
alia, with a copy of the offer, an estimate of the costs and all other
information which could in fairness influence the assessment by Opal. All sales
contracts in respect of
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the goods between THQ and its customers shall be insured by THQ
against default of payment by its customers with Hermes Credit
Service. All costs attached thereto shall be borne by THQ. In these
credit insurance policies Opal shall be named as the sole loss
payee and Opal shall, furthermore, be entitled to have (direct)
recourse on the debtors and will have the right to submit claims
under the insurance policy;
4. All offers and invoices relating to the trade in the goods by THQ
shall clearly designate as the sole place of payment: 1. a bank
account in the name of Opal or 2. bank accounts in the name of THQ
in which Opal is the only authorised signatory. THQ shall not be
allowed to receive payments in any other way without Opal's
explicit prior consent in writing;
5. All moneys and/or values to be received by THQ from the sale of the
goods shall be transferred immediately to Opal by way of reduction
of the capital provided by Opal. A further contract may be entered
into between the parties to the extent that 25% of the money to be
received by THQ shall be retained by the latter as working capital
whereas the remaining 75% shall be transferred to Opal as mentioned
above;
6. To insure Opal's rights THQ shall establish a (quiet) right of
pledge, in accordance with section 3:237 of the Dutch Civil Code,
on all THQ's goods, moneys and values, including, inter alia, THQ's
inventory and THQ's claims on third parties as described below in
article 7, for the benefit of Opal. THQ shall cooperate in the
execution of one or more authentic deeds of pledge before a
competent civil law notary in The Netherlands;
7. On the basis of the deed(s) of pledge to be passed pursuant to
article 6 of this contract, Opal shall obtain:
- a first pledge on THQ's stocks. Opal shall receive from THQ,
always on the 10th of each month at the latest, a statement of the
stocks as per the end of previous month;
- a first pledge on the company furniture and equipment (insofar as
available) of THQ;
- a first pledge on THQ's accounts receivable. THQ shall provide
Opal with an accounts receivable aging report, signed in a legally
valid manner, of accounts receivable pledged to Opal, at the latest
on the 10th of each month, simultaneously with THQ's stock list;
- a first pledge on the rights under THQ's credit insurance
policies;
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8. All companies associated with THQ in the United States or America,
France, the United Kingdom and Hong Kong shall submit a statement to
Opal in writing that they are familiar with the contents of this
contract and these
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companies shall, in addition, confirm in said document that they
will act solely in accordance with the contents of the contract and
that they will not in any way act contrary to the contract and the
obligations and provisions arising thereunder. Furthermore the body
corporate under the law of the State of New York, T.HQ
Incorporated, guarantees by undersigning this contract, towards
Opal full compliance (including payment) with this contract in case
of (a) lack of performance(s) by contract-party sub 2 and/or sub 3;
9. Immediately together with the application to open a Letter of
Credit, THQ shall pay to Opal 20% of the total value of the
commercial documentary sight Letters of Credit, to the extent that
these have been used by the former, by way of security. This
security shall be considered as the final 20% payment of the amount
due by THQ (including Opal's commission) to Opal. As long as the
final 20% has not been paid, Opal will retain these moneys by way
of (extra) security. Simultaneously with the above-mentioned
payment THQ shall also pay to Opal the costs incurred by the latter
for the purpose of putting up the commercial documentary sight
Letters of Credit;
10. By way of commission for the amounts borrowed Opal shall receive
from THQ an amount equalling 4.75% of the bank commercial
documentary sight Letters of Credit opened by Opal and used by THQ.
Furthermore, THQ shall, in order to compensate Opal for the loss of
interest on the capital, pay Opal the 30 day libor from the date on
which the Letters of Credit are drawn until the date of repayment,
to be increased by an extra 4%;
11. On the date on which the capital or parts thereof have been
outstanding for more than 90 days, since the date on which the
respective Letters of Credit were drawn, THQ shall owe Opal an
extra commission of 2% monthly until the capital or the relevant
part thereof has been repaid to Opal in full.
12. THQ shall, upon request, pay the costs incurred by Opal relating to
activities and/or trips connected with the present contract in
advance. These activities shall include the trips undertaken by
Opal to California where THQ keeps offices.
13. THQ shall keep a record of all the transactions relating to this
contract in a careful manner and in accordance with the statutory
provisions and provide Opal with a complete insight therein. THQ
shall also regularly supply Opal with information concerning
general matters, whether directly or indirectly related to this
contract, such as [COPY NOT LEGIBLE]
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14. THQ shall hold Opal harmless from any claims and/or demands from third
parties relating to the manufacture,
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distribution and/or quality of the goods and/or matters directly or
indirectly related thereto.
15. Opal shall at all times be entitled to limit and/or cancel this
contract without stating any reasons for same and without giving
notice of termination.
16. This contract shall be co-signed by the body corporate under the
law of the United Kingdom T.HQ International Limited, registered
office in Epsom, Surrey. By undersigning they guarantee towards
Opal full compliance (including payment) with this contract in case
of (a) lack of performance(s) by contract-party sub 3;
17. This contract shall be governed by Dutch law.
18. The Court of Amsterdam shall be the competent court to take
cognizance of any disputes between the parties concerning this
contract without prejudice to Opal's right to submit the dispute to
another competent court.
19. In the event of any disputes on the interpretation of any of the
provisions of this contract, the Dutch text shall be conclusive.
Thus agreed and prepared in triplicate and signed on ____________ 1994.
1. the body corporate under foreign law OPAL FINANCE CORPORATION LTD.,
registered office in St. Xxxxxx Post, Guernsey, Channel Islands;
2. the body corporate under the law of the United Kingdom T.HQ
International Limited, registered office in Epsom, Surrey;
3. the body corporate under German law T.HQ GmbH, registered office in
Munich (Germany);
4. the body corporate under the law of the State of New York T.HQ
Incorporated, registered office in New York (United States of America).
