Bethesda vs Interplay

Despite the latest 10-K filing not sounding optimistic for Fallout Online, in the latest Bethesda v. Interplay court filings Interplay still says that it does have adequate funding for the Fallout MMO.

In response to an interrogatory asking about facts regarding Interplay's having "secured financing for the FALLOUT MMOG in an amount no less than US$30,000,000" under the terms of the Trademark Licensing Agreement (TLA), Interplay states the following:

Per section 2.3 of the TLA Interplay was to have “secured financing,” the meaning of which is vague at best and not defined in the TLA. However, Plaintiff unequivocally has admitted Interplay was not required to have a line of credit or to have held $30,000,000 in a bank account as of the April 4, 2009. Thus, Interplay contends that it was to arrange for sufficient financing to develop an MMOG with a budget of $30,000,000, which was not restricted or limited to the cost of development of the MMOG alone. In fact, the TLA does not define what $30,000,000 is to be used for.

Further, Section 2.3 does not specify how or when Responding Party is to receive the money, nor does the TLA require Interplay to spend $30,000,000. Further, nothing in the TLA required Interplay to hold $30,000,000 in its own bank account, have a line of credit at its disposal, for $30,000,000 from a single source, or that the entirety of the funding must be paid in a single installment prior to April 4, 2009, as opposed to having the funds available on an as needed basis to develop, market and advertise a quality product, over the course of development and thereafter which could include amounts contributed by third parties. Further, the TLA does not require Interplay to notify Bethesda that “minimum financing” has been “secured” or specify any metod or recipient for such information. Interplay was only required to deliver a quality product, approved by Bethesda, within a specific period of time. Interplay satisfied its obligations under Section 2.3 of the TLA through a funding agreement with Interactive Game Group that provided up to $15 million and through a binding letter of intent for development services and subsequent agreement with Masthead Studios that provided approximately $20 million in development services and technology licenses.

Among other things, the documents contain an affidavit from Frederic Chesnais, founder of Interactive Game Group, stating the following:

“I, Frederic Chesnais, make the following statements based upon my own personal knowledge, do hereby depose and state as follows:
  1. I am over 18 years of age and am competent to make this affidavit on my personal knowledge as the founder of Interactive Game Group, L.L.C. (“I2G”).
  2. As of April 4, 2009, I2G had, through an affiliate, a line of credit granted by a bank, for an amount not to exceed 10 million Euros. That line was not drawn on April 4, 2009.
  3. The terms of the line of credit follow, in general terms, the terms and conditions for game production and approval set forth in the Game Production Agreement between I2G and Interplay Entertainment Corp. dated June 30, 2008. The key terms and conditions of this line of credit between I2G and the bank are summarized in Exhibit A attached hereto.

The main terms of the line of credit have also been disclosed:

  1. Maximum amount: Euro 10 millions
  2. Revolving facility.
  3. Pricing:
    • Fee of Euros 15.000
    • Fee for each game: 0.30% of each game budget that will be financed by the bank.
    • Credit Margin of 2.5% over EONIA, charged on outstanding balances under the facility.
    • No fee payable for the portion of the facility which is not used.
  4. Security package:
    • Guarantee from each Publisher/Distributor to repay the amount drawn under the facility; this guarantee will benefit the bank directly; the bank shall approve the creditworthiness of the Publisher/Distributor in each instance.
    • Assignment by the borrower, to the benefit of the bank, of any and all intellectual property rights held by borrower in the financed property;
    • Delivery, to the benefit of the bank, of a completion bond underwritten by a completion guarantor acceptable to the bank; and
    • Assignment by the borrower, to the benefit of the bank, of any and all rights held by borrower under any purchase agreement.
  5. Conditions to drawings:
    Conditions to drawing, to be fulfilled to the satisfaction of the bank:
    • Conditions set forth in paragraph 4 above are met;
    • Opening of a specific bank account, dedicated to the project;
    • Verification of corporate authority of borrower and of other parties involved; and

In addition, for each proposed game, the following conditions have to be fulfilled to the satisfaction of the bank:

  • Presentation of a cash flow forecast for the borrower, covering the period of development and of exploitation of the proposed game.
  • Presentation to the bank of the game and of the development studio;
  • Presentation to the bank of the development agreement with the development studio;
  • Delivery of a legal opinion to the bank confirming that the chain of title is complete, and that the intellectual property rights are free and clear of any encumbrances;
  • The development agreement, the game design document, the technical design document, the production schedule, the milestone schedule and the payment schedule have been approved by I2G and by the Completion Guarantor;
  • Presentation to bank of monthly budgets including all development and production costs for the game, including financing costs, and approved by the Completion Guarantor;
  • Delivery, to the benefit of the bank, of a completion bond covering the full amount of the production budget (including financing costs). Delivery of distribution agreements, from publishers/distributors acceptable to the bank, providing for a deposit of at least 5% of such production budget;
  • Bank must be added as additional insured on the insurance policy for the production;
  • Opening of dedicated deposit and withdrawal bank accounts for the game;
  • Disbursements shall be made only in accordance with the aforementioned cash flow plan, after approval from the Completion Guarantor, and the use of the financing shall not exceed the pre-approved limits; and
  • Confirmation by the borrower that there is no lien or other priority in the allocation of the proceeds generated by the game.
I2G will cover any necessary legal costs for external lawyers, as instructed by the bank, related to the legal review of the game projects, subject to prior approval by I2G of the budgets for such external lawyers.
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