EXHIBIT 10.2
RESTRUCTURE AGREEMENT
This Restructure Agreement ("Agreement") is made as of October 9, 2001
by and among SILICON VALLEY BANK, a California banking corporation ("SVB"),
INTERNATIONAL MICROCOMPUTER SOFTWARE, INC., a California corporation ("IMSI" or
"Borrower"), XXXXXXXX.XXX, Inc. an Arizona Corporation ("ArtToday"), and DIGITAL
CREATIVE DEVELOPMENT CORPORATION ("DCDC") a Utah corporation.
RECITALS
A. IMSI is indebted to SVB pursuant to a Loan and Security Agreement
dated November 3, 1998 ("SVB Loan Agreement").
The obligations under the Loan Agreement ("SVB Obligations") are
secured by all assets of IMSI described in said agreement
("Collateral").
In addition, the SVB Obligations are secured by the terms of the
Intellectual Property Security Agreement ("IMSI IP Security
Agreement") executed by IMSI dated November 3, 1998 and by the assets
described therein ("IP Collateral").
In addition, the SVB Obligations and the UBOC Obligations are secured
by the terms of a Pledge Agreement ("Pledge Agreement") executed by
IMSI encumbering all shares of stock in ArtToday which are owned by
IMSI.
B. IMSI was obligated to Union Bank of California ("UBOC") pursuant to
the terms of the First Amended and Restated Loan Agreement dated as
of April 23, 1999, between IMSI and UBOC, including all promissory
notes issued thereto and all documents executed in connection
therewith, as amended and modified (collectively, "UBOC Loan
Agreement"). DCDC has purchased the UBOC Loan Agreement and all
rights and liabilities associated therewith.
The obligations under the UBOC Loan Agreement ("UBOC Obligations")
are secured by the assets described in said agreement ("Collateral").
In addition, the UBOC Obligations are secured by the terms of the
Intellectual Property Security Agreement executed by IMSI dated
November 3, 1999 and by the assets described therein ("IP
Collateral").
In addition, the UBOC Obligations are secured by the terms of the
Pledge Agreement encumbering all shares of stock in ArtToday which
are owned by Borrower.
The UBOC Obligations have been assigned to and assumed by DCDC.
C. UBOC and SVB have entered into an Intercreditor Agreement dated as of
November 3, 1998 ("Intercreditor Agreement") which among other things
provides that UBOC's lien on the assets of Borrower shall be senior
to SVB's lien.
D. The SVB Obligations and the UBOC Obligations are guarantied pursuant
to the terms of a Limited Guaranty executed by ArtToday. ("ArtToday
Guaranty").
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E. The obligations of ArtToday under the ArtToday Guaranty are secured
by all of the assets of ArtToday pursuant to the terms of:
(i) a Security Agreement (All Personal Property Assets) ("ArtToday
Security Agreement"); and
(ii) an the Intellectual Property Security Agreement executed by
ArtToday ("ArtToday IP Security Agreement").
F. IMSI is obligated to various unsecured creditors (collectively the
"Unsecured Creditors") as a result of which an Unofficial Committee
of Unsecured Creditors ("Committee") has been formed. (The claims
held by the Unsecured Creditors shall be collectively referred to as
the "Unsecured Claims".) A UCC-1 lien has been filed in the name of
Credit Manager's Association on behalf of the Unsecured Creditors.
G. IMSI may be obligated to Imageline, Inc. ("Imageline") pursuant to an
arbitration award in the amount of $2,600,000.
H. Baystar Capital L.P. ("Baystar Capital") is a creditor of IMSI
pursuant to a Senior Subordinated Convertible Note dated as of May
24, 1999 ("Baystar Note"). The obligations under the Baystar Note are
subordinated to the SVB Obligations and the UBOC Obligations.
X. Xxxxxx Financial, Inc. ("Xxxxxx Financial") has filed a judgment lien
against IMSI.
J. IMSI is in default under the UBOC Loan Agreement and the SVB Loan
Agreement.
K. DCDC intends to merge with and into a wholly-owned subsidiary of IMSI
("Merger Subsidiary") in such a manner that Merger Subsidiary
acquires all assets and obligations of DCDC ("Merger Transaction").
The UBOC Loan Agreement will become one of the assets of Merger
Subsidiary following the Merger Transaction.
L. Concurrent with or prior to the completion of the Merger Transaction
as provided or referred to herein, (i) SVB will reduce the amounts
owed by IMSI under the SVB Loan Agreement; (ii) the Intercreditor
Agreement will be terminated; (iii) SVB will retain a senior lien on
the assets of IMSI to secure the amounts owed to SVB by IMSI, (iv)
SVB will retain a senior lien on the assets of ArtToday to secure the
amounts owed to SVB by ArtToday; (v) the holder of the UBOC Loan
Agreement will subordinate the UBOC Obligations and the liens which
secure such obligations to the SVB Obligations and the liens which
secure such obligations and execute a Pledge Agreement in connection
therewith; (vi) the Unsecured Creditors will agree to accept 10% of
their claims in full satisfaction of their claims; and (vii)
Imageline will agree to accept an agreed upon sum to satisfy the
arbitration award in favor of Imageline.
M. Defined terms used but not defined in this Agreement shall have the
meaning provided in the Loan Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the above recitals and the covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Acknowledgement of SVB Obligations. IMSI and DCDC and ArtToday hereby
acknowledge as follows:
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Borrower is obligated to SVB according to the terms of the SVB Loan Agreement.
As of September 28, 2001 the following amounts were outstanding: principal in
the sum of $3,248,291.88; interest in the sum of $749,125.21; and costs of SVB,
including reasonable attorneys' fees and costs in an amount to be specified.
Acknowledgment of Liens. IMSI, DCDC, and ArtToday hereby agree and acknowledge
that: Prior to this Agreement becoming effective, pursuant to the terms of the
SVB Loan Agreement and the IMSI IP Security Agreement, SVB Obligations have been
and are currently secured by a lien on all of IMSI's' personal property assets,
including, without limitation, its intellectual property assets. Said liens have
been fully perfected.
Upon this Agreement becoming effective and the subordination of the UBOC Loan
and Liens, the SVB Obligations shall be secured by a first priority lien on all
of IMSI's personal property assets. Said lien is and shall remain in full force
and effect and shall remain fully perfected.
Default. IMSI, DCDC, and ArtToday hereby agree and acknowledge that the SVB Loan
Agreement is in default (hereinafter the "Stated Defaults") by virtue of the
fact that the loan payments due have not been paid.
No Required Advances. As a result of the Stated Defaults, SVB is not
required to make any further advances under the Loan Agreement.
UBOC Loan and Lien.
Concurrent herewith or prior hereto, DCDC shall purchase the UBOC Loan Agreement
and shall acquire as assignee all liens securing the UBOC Loan Agreement and all
of UBOC's rights thereunder and thereto.
Concurrent herewith DCDC, as holder of the UBOC Loan Agreement shall execute a
Subordination Agreement in form and substance as set forth in Exhibit A hereto.
According to the terms thereof repayment of the UBOC Loan Agreement (and any
guaranty thereof) shall be subordinated to repayment of the SVB Obligations (and
any guaranty thereof), and the lien which secures the UBOC Loan Agreement shall
be subordinated to the lien held by SVB to secure the SVB Obligations.
All collateral held by UBOC and/or DCDC to secure the UBOC Loan Agreement shall
be delivered to SVB concurrent with the execution of this Agreement, including
without limitation the stock in ArtToday held by UBOC under to the ArtToday
Pledge Agreement.
Concurrent herewith (i) DCDC shall execute a Pledge Agreement ("DCDC Pledge
Agreement") in form and substance as set forth in Exhibit B granting a lien on
the UBOC Loan Agreement and related documents to secure DCDC's obligations under
the Subordination Agreement; (ii) DCDC shall deliver to SVB, the UBOC Loan
Agreement as collateral; (iii) SVB shall file such UCC-1 Financing Statements or
UCC-3 Assignments as it deems appropriate to protect or perfect its position as
assignee of DCDC's interests.
Upon completion of the Merger Transaction, DCDC or IMSI shall inform SVB of
completion of the Merger Transaction and Merger Subsidiary shall execute and
deliver to SVB a Reaffirmation of Subordination Agreement in form and substance
as set forth in Exhibit C, reaffirming the subordination of the UBOC
Obligations.
Neither DCDC nor Merger Subsidiary shall assign or transfer any interest in the
UBOC Loan Agreement unless the assignee or transferee agree in writing to be
bound by the terms of the Subordination Agreement and SVB consents to such
assignment or transfer in writing.
Intercreditor Agreement.
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The Intercreditor Agreement shall be deemed terminated effective immediately and
automatically upon effectiveness of the Revised Promissory Note referred to
below in Section 11.a.
Thereafter the Intercreditor Agreement shall not under any circumstances be
revived or reinstated without written agreement of both SVB and the then holder
of the UBOC Loan Agreement.
Unsecured Creditor Claims.
IMSI is in negotiation with the holders of the Unsecured Claims and IMSI intend
to have the Unsecured Creditor enter into one or more written agreements by
which each shall agree that: (A) each shall accept payment of ten percent (10%)
or less of their respective claims in full satisfaction of such claims, and (B)
such payment shall be made after payment in full of the Revised Promissory Note.
IMSI agrees that under no circumstance will it make any payment on any Unsecured
Claims until the Revised Promissory Note has been paid in full.
Imageline Claims.
IMSI represents and warrants that Imageline does not claim a lien on or
ownership interest in any asset in which SVB has a lien to secure the SVB
Obligations ("Collateral Asset").
To the extent that Imageline shall assert a claim or interest in any Collateral
Asset or shall seek to enforce the judgment lien, IMSI will take all necessary
steps to promptly satisfy or release such claims subject to the restrictions
specified below.
IMSI agrees that under no circumstance will it make any payment to Imageline
until the Revised Promissory Note has been paid in full.
Baystar Capital.
IMSI represents and warrants that Baystar Capital is an unsecured creditor of
IMSI and has no lien on any assets to secure the debt owed by IMSI.
To the extent that Baystar should assert a claim or interest in any Collateral
Assets, IMSI will take all necessary steps to promptly satisfy or release such
claim subject to the restrictions specified below.
IMSI agrees that under no circumstance will it make any payment to Baystar
Capital until the Revised Promissory Note has been paid in full.
Xxxxxx Financial.
To the extent Xxxxxx Financial shall seek to enforce its judgment lien, IMSI
will take all necessary steps to promptly satisfy or release such claims subject
to the restrictions below.
IMSI agrees that under no circumstance will it make any payment to Xxxxxx
Financial until the Revised Promissory Note has been paid in full.
Modification of SVB Obligations.
Concurrent herewith IMSI shall execute a Revised Promissory Note in form and
structure as set forth in Exhibit D.
Upon execution and delivery to SVB of the Restructure Documents specified below,
and (ii) completion of the Related Actions specified below, the monetary
obligation owed to SVB under the SVB Loan Agreement ("Original SVB Obligations")
shall be reduced to the monetary obligation as set forth in the Revised
Promissory Note ("Revised SVB Obligations").
SVB hereby agrees that it upon the effectiveness of the Revised Promissory Note,
SVB shall automatically and immediately be deemed to waive: (i) the Stated
Defaults; (ii) any defaults which may have arisen solely by virtue of
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the consummation of the merger of DCDC into IMSI; and (iii) its claim to any
monetary amounts in excess of the Revised Promissory Note as of the effective
date thereof. However, the waiver referred to above shall not be deemed to waive
or modify any other of the provisions of the SVB Loan Agreement; nor shall it be
deemed to otherwise waive or affect any right of SVB under the SVB Loan
Agreement.
The term "Restructure Documents" shall mean:
this Agreement;
the Revised Promissory Note referred to in Section 9.a;
the DCDC Subordination Agreement referred to in Section 5.b. above;
the DCDC Pledge Agreement referred to in Section 5.d above;
the Subsidiary Reaffirmation Agreement referred to in Section 5.e;
the Reaffirmation of Guaranty and Security Agreement referred to below
in Section 13;
the legal opinions and the other documents referred to in Section 20.
The "Related Actions" shall mean all of the following:
Transfer by UBOC to DCDC of the UBOC Loan Agreement and all of UBOC's
rights thereunder as referred to in Section 5 above;
and Termination of the Intercreditor Agreement as referred to in Section
6 above;
Delivery to SVB of the UBOC Loan Agreement and all related instruments
and documents
Payment of the Restructure Expenses to SVB (as defined below);
Restructure Expenses. SVB shall be reimbursed all reasonable legal fees and
expenses incurred in the negotiation, preparation and documentation of this
Agreement and all related documents, which amounts are to be paid upon demand by
SVB at or following the execution or delivery of this Agreement and which amount
shall not exceed the sum of twenty thousand dollars.
Reaffirmation by Merger Subsidiary. The Subordination Security Agreement shall
be executed by Merger Subsidiary in form and substance as in Exhibit E which
shall become effective immediately upon the merger of DCDC and Merger
Subsidiary. Said agreement shall be executed either concurrent herewith or upon
the formation of the Merger Subsidiary whichever is later.
Personal Property Security Interests. IMSI shall execute such other documents
and take such action as may be requested by SVB to perfect, enforce or
memorialize SVB's security interest in any Collateral Agreement.
Reaffirmation of Guaranty. ArtToday hereby acknowledges, agrees, admits and
represents that: ArtToday has guaranteed all obligations of IMSI to SVB under
the SVB Loan Agreement, subject to the limitations as set forth in the Limited
Guaranty therein. The Limited Guaranty applies to the obligations of IMSI to SVB
following the merger of DCDC into Merger Subsidiary.
Subject to the limitations as provided therein, the Limited Guaranty remains in
full force and effect and there are no defenses to the liability of ArtToday
under the Guaranty and its liability thereunder has not been exonerated or
released in any way.
The Guaranty shall continue to guaranty payment of amounts owed under the SVB
Loan Agreement as modified herein, on the terms provided in the Guaranty.
ArtToday shall execute and deliver to SVB a Reaffirmation of Guaranty in the
form attached hereto as Exhibit F ("Reaffirmation of Guaranty").
ArtToday hereby consents to the modification of the SVB Loan Agreement as
provided herein. The ArtToday Security Agreement shall continue to secure the
ArtToday Guaranty. The ArtToday Security Agreement remains in full force and
effect and there are no defenses to the rights of SVB thereunder.
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Further Assurances. Each of the parties hereto shall take all actions and
execute such documents as are requested to implement the provisions of this
Agreement or any document executed in connection herewith, and to recognize,
perfect or enforce the rights of the parties hereunder or thereunder.
Representation and Warranties of SVB. SVB hereby makes the following
representations and warranties to IMSI, DCDC and ArtToday: (i) All corporate
action on the part of SVB, its officers and directors necessary for the
authorization, execution and delivery of this Agreement and the agreement
contemplated hereby and the performance of all obligations of SVB under such
agreements has been taken or will be taken prior to their execution, and this
Agreement; and (ii) the agreements contemplated to which SVB is a party herein
constitute valid and legally binding obligations of SVB, enforceable in
accordance with their terms, except as subject to laws of general application
relating to bankruptcy, insolvency and relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies.
Separation of Entities and Assets.
IMSI shall not at any time, transfer any assets of IMSI to Merger Subsidiary or
to DCDC. Following completion of the Merger Transaction, Merger Subsidiary shall
be an entity separate from and independent of IMSI and ArtToday. IMSI shall take
all action necessary to maintain the separateness of independence of Merger
Subsidiary and its assets from IMSI and ArtToday.
To the extent that there is any creditor of DCDC prior to the Merger Transaction
and who should claim a lien on any asset of either ArtToday or IMSI after the
Merger Transaction, IMSI will segregate all proceeds of such collateral from the
proceeds of collateral which was subject to SVB's liens prior to completion of
the Merger Transaction. Such funds will be deposited into an interest bearing
account, and SVB shall be given a lien on such account.
No Other Defaults. IMSI and DCDC represent and warrant that to the best of their
knowledge and belief no defaults exist under the SVB Loan Agreement other than
the Stated Defaults.
Additional Representations and Warranties To SVB. The following representations
and warranties are made to SVB:
DCDC hereby represents and warrants to SVB as follows:
DCDC is duly organized, validly existing and in good standing under the
laws of the state of Utah with its principal place of business at 67
Irving Place North, 4th Floor, New York, New York, and has all requisite
corporate power and authority to carry on its business as now conducted
or proposed to be conducted; and
DCDC is qualified or licensed to do business, and in good standing as a
foreign corporation in the State of California and, as the case may be,
in all other jurisdictions in which such qualification or licensing is
required.
IMSI represents and warrants to SVB as follows:
IMSI is duly organized, validly existing and in good standing under the
laws of the state of California with its principal place of business at
00 Xxxxxxx Xxx, Xxxxxx, Xxxxxxxxxx and has all requisite corporate power
and authority to carry on its business as now conducted or proposed to
be conducted;
IMSI is qualified or licensed to do business, and in good standing as a
foreign corporation or foreign limited liability company, as the case
may be, in all jurisdictions in which such qualification or licensing is
required;
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IMSI has no trademarks, copyrights or patents except those identified in
the IMSI IP Security Agreement. Any and all copyright rights, copyright
applications, copyright registrations and like protections in each work
or authorship and derivative work thereof, whether published or
unpublished and whether or not the same also constitutes a trade secret,
now or hereafter existing, created, acquired or held; all patents,
patent applications and like protections including without limitation
improvements, divisions, continuations, renewals, reissues, extensions
and continuations in part of the same, including without limitation the
patents and patent applications; all trademark and servicemark rights,
whether registered or not, applications to register and registrations of
the same and like protections, and the entire goodwill of the business
of IMSI connected with and symbolized by such trademarks are set forth
on Exhibit G hereto;
IMSI holds all of the shares of stock in ArtToday;
IMSI holds or will hold all of the shares of stock, or all of the
membership interest in Merger Subsidiary; and
Except for agreements contemplated hereby, IMSI has not sold, exchanged
or otherwise disposed of any of its assets or rights, other than in the
ordinary course of business.
ArtToday represents and warrants to SVB as follows:
ArtToday is a corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona, or if not in good
standing, shall be in good standing in the State of Arizona within ten
(10) day as of the signing of this Agreement and remain in good standing
until the SVB Obligations are paid in full;
ArtToday has all requisite corporate power and authority to carry on its
business as now conducted and proposed to be conducted;
ArtToday's principal place of business is at 00 Xxxxxxx Xxx, Xxxxxx,
Xxxxxxxxxx;
ArtToday has no trademarks, copyrights or patents except those
identified in the ArtToday IP Security Agreement. Any and all copyright
rights, copyright applications, copyright registrations and like
protections in each work or authorship and derivative work thereof,
whether published or unpublished and whether or not the same also
constitutes a trade secret, now or hereafter existing, created, acquired
or held; all patents, patent applications and like protections including
without limitation improvements, divisions, continuations, renewals,
reissues, extensions and continuations in part of the same, including
without limitation the patents and patent applications; all trademark
and servicemark rights, whether registered or not, applications to
register and registrations of the same and like protections, and the
entire goodwill of the business of ArtToday connected with and
symbolized by such trademarks are set forth on Exhibit H hereto; and
ArtToday is qualified or licensed to do business, and in good standing
as a foreign corporation or foreign limited liability company, as the
case may be, in all jurisdictions in which such qualification or
licensing is required.
DCDC and IMSI each severally represents and warrants to SVB as follows:
The Merger Agreement attached hereto as Exhibit I, is the true, correct
and final form evidencing the Merger Transaction, and has not been and
will not be in any way amended, annulled, rescinded, repealed, revoked
or supplemented.
DCDC, IMSI, and ArtToday each severally represents and warrants to SVB as
follows:
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The execution, delivery and performance of this Agreement and of any
instrument or agreement required by this Agreement are within its
powers, have been duly authorized, are not in conflict with the terms of
any of its charters, bylaws or other organization papers and are not in
conflict with any law or any indenture, agreement or undertaking to
which it is a party or by which it is bound or affected. The execution,
delivery and performance of this Agreement and the agreements
contemplated herein and the consummation of the transactions
contemplated hereby and thereby will not be in conflict with or
constitute, with or without the passage of time and giving of notice,
either a default under any instrument, judgment, order, writ, decree or
contract or an event which results in the creation of, any lien, charge
or encumbrance upon any of its assets.
There is no litigation, claim, proceeding or dispute pending (or to its
knowledge threatened) against or affecting it or its financial condition
which either would impair its ability to perform the obligations
hereunder, questions the validity of this Agreement of the agreements
contemplated hereby, or which has not already been expressly disclosed
to SVB in writing.
This Agreement is a legal, valid and binding agreement of the each,
enforceable against each of them in accordance with its terms, and any
instrument or agreement required hereunder, when executed and delivered,
will be similarly legal, valid, binding and enforceable.
All financial information submitted by or on its behalf to SVB is true
and correct in all material respects and is complete insofar as may be
necessary to give SVB a true and accurate knowledge of the subject
matter thereof.
No event has occurred and is continuing which constitutes an Event of
Default of such party under this Agreement or which would become an
Event of Default (defined below) upon a lapse of time or with notice if
applicable.
It is not aware of any rights, any patents, trademarks, service marks,
trade names, copyrights, trade secrets or proprietary rights and
processes held by third parties that it will be required to obtain in
order to conduct its business as proposed to be conducted and that
cannot be obtained on commercially reasonable terms from such parties.
Except as disclosed in writing to SVB, it has not received any
communications alleging that it has violated any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity, nor is it aware
of any reasonable basis for any such allegations.
IMSI and ArtToday each severally represent and warrant to SVB as follows:
There are no liens, claims or interests in the assets which are subject to SVB's
lien granted except for SVB's lien and the lien which secures the UBOC
Obligations referred to in the Recitals above;
SVB holds and shall retain a first priority lien on the assets of IMSI
and of ArtToday, following execution of the DCDC Subordination
Agreement; and
SVB holds and shall retain a first priority lien on all of the shares of
stock in ArtToday, following execution of the DCDC Subordination
Agreement
There are no other defaults under the Loan Agreement other than the Stated
Defaults.
Legal Opinions/Officer Certificates. Relating to the representations and
warranties provided above, SVB will be provided with: (i) one or more legal
opinions in the form attached hereto as Exhibit J, and (ii) officer certificates
in form as attached hereto as Exhibit K.
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Events of Default. At the option of SVB, the following shall constitute an
"Event of Default" under this Agreement:
Breach of any provision of this Agreement or any agreement, instrument
or certificate executed pursuant hereto.
Breach (whether presently existing or hereafter occurring) of any
provision of, or the occurrence of an Event of Default, excluding the
Stated Defaults, under the SVB Loan Agreement.
Discovery that: (i) any representation or warranty herein or in any
agreement, instrument or certificate executed pursuant hereto; or (ii)
any financial information provided to SVB in connection herewith, was
false or misleading in any material respect when made or provided to
SVB.
Any action by Imageline to foreclose on or enforce its judgment loan.
Any action by Xxxxxx Financial to foreclose on or enforce its judgment
lien.
Any action by the Unsecured Creditors to enforce the lien granted to the
Credit Manager's Association.
Remedies Upon Default. Upon the occurrence of an Event of Default, SVB may at
its option and without notice or demand:
Immediately make demand for all obligations owed under the SVB Loan
Agreement and/or the Revised Promissory Note and/or this Agreement.
Immediately enforce all rights under this Agreement and the SVB Loan
Agreement and under applicable law.
Exercise any or all of its remedies under the SVB Loan Agreement, the IP
Security Agreement, or the Pledge Agreement under applicable law.
Enforce the Limited Guaranty and all agreements securing the Limited
Guaranty.
Have the right to enforce one or more remedies partially, successively
or concurrently, and in any order it deems appropriate. SVB's
enforcement of any remedy or remedies shall not estop or prevent SVB
from pursuing any additional remedy or remedies that it may have
hereunder or by law.
Waiver and Release of SVB.
In further consideration of SVB entering into this IMSI and DCDC and ArtToday
and each of their past and present officers, shareholders, directors, employees,
agents, successors and assigns (collectively referred to as the "IMSI Releasing
Parties") hereby waive and release any and all claims, rights and defenses,
causes of action and offsets of any nature whatsoever (known or unknown) which
each of the IMSI Releasing Parties now has (or might have) against SVB, all of
SVB's past and present officers, directors, employees, agents, attorneys or
representatives arising from or in any way related to the SVB Loan Agreement and
all modifications, supplements and extensions thereto, all the advances
thereunder, all documents executed in connection therewith and SVB's actions in
connection therewith.
This waiver and release is not intended to release and waive, nor shall it be
interpreted as releasing and waiving, rights, defenses, claims, causes of
actions and offsets arising from or related to this Agreement and the breach of
any representation, warranty or covenant contained herein.
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Each of the IMSI Releasing Parties understands (a) that it is possible that
unknown losses or claims may exist, or (b) that past known losses have been
underestimated; nevertheless each of the IMSI Releasing Parties is taking this
risk into account in determining the consideration it is to receive for this
release through this Agreement. Consequently, each of the IMSI Releasing Parties
expressly waives all rights and benefits conferred by Section 1542 of the
California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
The waiver and release specified above will become effective immediately
upon: (i) execution and delivery to SVB of the Transaction Documents and
(ii) completion of the Related Actions.
Preservation of Agreements. Except as expressly modified herein, the terms and
conditions of the SVB Loan Agreement, the IP Security Agreement, the Pledge
Agreement, the Limited Guaranty, the ArtToday Security Agreement, and the
ArtToday IP Security Agreement remain in full force and effect and unmodified.
Controlling Provisions. To the extent that there is any inconsistency or
conflict between the terms, conditions and provisions of the SVB Loan Agreement,
the IP Security Agreement, the Pledge Agreement, this Agreement, the Limited
Guaranty, the ArtToday Security Agreement, and the ArtToday IP Security
Agreement the terms, conditions and provisions of this Agreement will prevail.
Successors and Assigns. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that the parties hereto other than SVB may not assign this Agreement or
any rights and duties or obligations of them hereunder without the prior written
consent of SVB. SVB may assign this Agreement with the assignment of the SVB
Loan Agreement.
No Waiver. No consent or waiver under this Agreement shall be effective unless
made in writing and signed by the party consenting or waiving. No waiver of any
breach or default shall be deemed a waiver of any breach or default thereafter
occurring.
Attorneys' Fees and Expenses. IMSI, DCDC and ArtToday shall severally pay SVB
for all reasonable attorneys' fees and costs incurred by SVB in connection with
or related to its respective default under this Agreement, whether or not a
legal proceeding is commenced. In the event of any action by SVB to enforce this
Agreement or any instrument or agreement required by this Agreement or to
enforce or interpret SVB's rights under such agreement or instrument (whether in
a state, federal or bankruptcy court or otherwise), each of IMSI, DCDC and
ArtToday agree to pay all expenses incurred by SVB including but not limited to
reasonable attorneys' fees and costs, to the extent that it is the party against
which enforcement is sought.
Severability. In the event that any provision, or portions thereof, of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions, or
portions thereof, shall not be affected thereby.
Execution in Counterparts. This Agreement and each of the other documents
executed in connection with this Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Captions. The captions contained in this Agreement are for the convenience of
the parties and shall not be deemed or construed as in any way limiting or
extending the language of the provisions to which said captions may refer.
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Notices. All notices, demands, or requests from one party to another shall,
unless otherwise specified herein, be delivered personally or sent by mail,
certified or registered, return receipt requested or sent by facsimile, to the
persons and addresses identified below. Any such notice, demand or request shall
be deemed to have been received when personally delivered or five (5) days after
mailing or upon delivery by facsimile in the manner set forth below:
SVB: WITH NOTICE TO:
Silicon Valley Bank Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxxx, Xxxxx & May
Xxx Xxxxxxxxx, XX 00000 Two Embarcadero Center, 20th Floor
Attn: Xxxxx Xxxxxxxx XxXxx Xxx Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000 Facsimile: (000) 000-0000
IMSI: WITH NOTICE TO:
Xxxxxxxx Xxxxxxx, President Xxxxx X. Xxxxxxxxx, Esq.
International Microcomputer Software, Inc. Xxxxx X. Xxxxxxxxx, P.C.
00 Xxxxxxx Xxx 00 Xxxx Xxx Xxxxxxx Xxxxx Xxxx.
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile 000-000-0000 Facsimile: 000-000-0000
ARTTODAY: WITH NOTICE TO:
Xxxxxxxx Xxxxxxx, CEO Xxxxx X. Xxxxxxxxx, Esq.
XXXXXXXX.XXX, Inc. Xxxxx X. Xxxxxxxxx, P.C.
00 Xxxxxxx Xxx 00 Xxxx Xxx Xxxxxxx Xxxxx Xxxx.
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile 000-000-0000 Facsimile: 000-000-0000
DCDC: WITH NOTICE TO:
Xxxxxx Xxxx, President & CEO Xxxx Xxxxxx, Esq.
Digital Creative Development Corporation Xxxxxx & Eilen, LLP
00 Xxxxxx Xxxxx Xxxxx, 0xx Xxxxx 00 Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties pursuant to this paragraph.
Advice of Attorney. Each of the parties hereto expressly declares that it knows
and understands the contents of this Agreement and has had an opportunity to
consult with an attorney regarding its form and content.
No Other Beneficiaries. Nothing contained in this Agreement is intended, nor
shall it be construed or deemed, to confer any rights, powers or privileges on
any person, firm, partnership, corporation or other entity who or which is not
an express party herein or a successor-in-interest to any party hereto.
Neutral Construction. Each of the parties hereto has been involved in the
negotiation, review and execution of this Agreement; and each has had the
opportunity to receive independent legal advice from an attorney or attorneys of
its choice with respect to the advisability of making and executing this
Agreement. In the event of any dispute or controversy regarding this Agreement,
the parties hereto shall be considered to be the joint authors of this Agreement
and no provision of this Agreement shall be interpreted against a party hereto
because of authorship.
105
WAIVER OF RIGHT TO JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT (WHETHER ARISING UNDER
THE CONSTITUTION OF THE UNITED STATES, THE STATE OF CALIFORNIA OR OF ANY OTHER
STATE, OR ANY FOREIGN JURISDICTION, UNDER ANY STATUTES REGARDING OR RULES OF
CIVIL PROCEDURE APPLICABLE IN ANY STATE OR FEDERAL OR FOREIGN LEGAL PROCEEDING,
UNDER COMMON LAW, OR OTHERWISE) TO DEMAND OR HAVE A TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, THE LOAN
AGREEMENT, OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DISCUSSIONS, DEALINGS OR ACTIONS OF SUCH PERSONS OR ANY OF THEM (WHETHER ORAL OR
WRITTEN) WITH RESPECT THERETO, OR TO THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND EACH SUCH PERSON HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY TRIAL COURT
WITHOUT A JURY, AND THAT ANY OTHER PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THEIR WAIVER OF RIGHT TO TRIAL BY JURY. BORROWER AND EACH OF THEM, ACKNOWLEDGE
AND AGREE THAT THEY HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER RELATED DOCUMENT TO WHICH IT
IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR SVB ACCEPTING
THIS AGREEMENT. BY WAIVING A JURY TRIAL, THE PARTIES INTEND CLAIMS AND DISPUTES
TO BE RESOLVED BY A JUDGE ACTING WITHOUT A JURY IN ORDER TO AVOID THE DELAYS,
EXPENSE AND RISK OF MISTAKEN INTERPRETATIONS WHICH EACH PARTY ACKNOWLEDGES TO BE
GREATER WITH JURY TRIALS THAN WITH NON-JURY TRIALS. NOTHING IN THIS SECTION
DEALING WITH WAIVER OF JURY TRIAL SHALL BE DEEMED TO WAIVE ANY PROVISION OF THE
SUCCEEDING PARAGRAPH DEALING WITH ARBITRATION, BUT RATHER TO SUPPLEMENT THE
AGREEMENT OF THE PARTIES TO ARBITRATE TO THE EXTENT, IF ANY, THAT ANY OR ALL
DISPUTES AMONG THE PARTIES ARE LITIGATED IN A LEGAL ACTION DESPITE THE
ARBITRATION PROVISION.
INITIALS:
------------- ------------- ------------- ------------- -------------
Arbitration. In the event of any dispute, claim or controversy between the
parties arising out of or in any way relating to this Agreement or any term or
condition of this Agreement, whether in contract, tort, equity or otherwise, and
whether relating to the meaning, interpretation, effect, validity, performance
or enforcement thereof, including any controversy as to the arbitrability
thereof, such dispute, claim or controversy shall be resolved by and through an
arbitration proceeding before a single arbitrator in Santa Xxxxx County,
California, pursuant to the commercial arbitration rules of the American
Arbitration Association. Both the foregoing agreement of the parties to
arbitrate any and all such claims, and the results, determination, finding,
judgment and/or award rendered through such arbitration, shall be final and
binding on the parties hereto and may be specifically enforced by legal
proceedings. The parties intend that they be permitted to conduct reasonable and
expedited discovery in advance of any arbitration proceeding.
Controlling Law. This Agreement and any instrument or agreement executed in
connection with this Agreement shall be governed by and construed under the laws
of the State of California without regard to conflict of law principles.
Venue and Jurisdiction. Any and all legal proceedings to enforce or interpret
this Agreement and any instrument or agreement executed in connection with this
Agreement and the rights thereunder (including any action to compel arbitration
hereunder or to enforce any award or judgment rendered thereby) shall be
governed in accordance with paragraph 34 of the Restructure Agreement.
Jurisdiction and venue on such matters shall be appropriate in any state
106
court within the City and County of San Francisco, State of California, or the
County of Santa Xxxxx, State of California, or the federal courts located in the
Northern District of California, at SVB's election. The parties hereto each
waives any right it may have to assert the doctrine of forum non-conveniens or
to object to such venue. Each of the parties hereto hereby consents to and
submits to the jurisdiction of such courts and to any court-ordered relief
issued by such courts.
IN WITNESS WHEREOF, the parties hereto have executed this Restructure Agreement.
SILICON VALLEY BANK,
a California banking corporation
By: /s/ XXXXX XXXXXXXX XxXXX
----------------------------------------
DIGITAL CREATIVE DEVELOPMENT CORPORATION,
a Utah corporation
By: /s/ XXXXXX XXXX III
----------------------------------------
Its: President and CEO
----------------------------------------
INTERNATIONAL MICROCOMPUTER SOFTWARE, INC.,
a California corporation
By: /s/ XXXXXX XXXX III
----------------------------------------
Its: CEO
----------------------------------------
XXXXXXXX.XXX, INC.,
an Arizona corporation
By: /s/ XXXXXX XXXX III
----------------------------------------
Its: CEO
----------------------------------------
APPROVED AS TO FORM:
CROSBY, HEAFEY, XXXXX & MAY,
PROFESSIONAL CORPORATION
By:
----------------------------------------
Xxxxx X. Xxxxx
Attorneys for Silicon Valley Bank
107
EXHIBIT "A"
SUBORDINATION AGREEMENT
EXHIBIT "B"
DCDC PLEDGE AGREEMENT
EXHIBIT "C"
REAFFIRMATION OF SUBORDINATION AGREEMENT
EXHIBIT "D"
REVISED PROMISSORY NOTE
EXHIBIT "E"
SUBORDINATION OF SECURITY AGREEMENT BY MERGER SUBSIDIARY
EXHIBIT "F
REAFFIRMATION OF GUARANTEE BY ARTTODAY
EXHIBIT "G"
IMSI COPYRIGHTS
SCHEDULE A - ISSUED COPYRIGHTS
None
SCHEDULE B - PENDING COPYRIGHT APPLICATIONS
None
SCHEDULE C - UNREGISTERED COPYRIGHTS
(Where No Copyright Application Is Pending)
None
IMSI PATENTS
None
IMSI TRADEMARKS
TRADEMARK DESCRIPTION COUNTRY REG. NO STATUS
--------------------- ------- ------- ------
XxxxxXXX XXX 0000000 Live
FormTool USA 1391469 Xxxx
XxxxxXxxx XXX 0000000 Live
WinDelete USA 1939951 Live
EZ Language USA 1926749 Live
Living Media USA 1954650 Live
IMSI USA 1982398 Live
IMSI USA 2164950 Live
108
IMSI USA 1980954 Live
IMSI USA 2159821 Live
IMSI Publisher USA 1808946 Live
IMSI Mouse USA 1818785 Live
EZ Internet USA 2150003 Live
TurboPublisher USA 2038641 Live
TurboDraw USA 2038648 Live
TurboProject USA 2122203 Live
FloorPlan USA 2308531 Live
IMSI:
MasterPhotos Studio UpdateNow
MasterPhotos 75,000 MasterClips Email Animator
MasterPhotos 50,000 MasterClips 303,000
MasterPhotos 25,000 MasterClips 202,000
MicroCookbook MasterClips 150,000
Graphics Converter MasterClips 150,000 (Mac)
Graphics File Converter MasterClips 101,000 (Mac)
NetAccelerator Deluxe MasterClips 35,000 (Mac)
NetAccelerator v2 MasterClips 75,000
Net Accelerator v3 MasterClips 45,000
NetAccelerator TurboCAD Professional v4 - v7
MasterPublisher 97 TurboCAD v4 - v7
TotalCAD 2D/3D TurboCAD 3D Modeler
Xxxx Xxx Wine Country Cuisine TurboSketch
PeopleScheduler TurboCAD 2D/3D for Windows
Web Business Builder TurboCAD 2D/3D for Mac
MultiMedia Fusion TurboCAD Designer v5 - v7
Lumiere Flow!
RAM Shield FormTool Express
UpdateNow FormTool Scan&OCR
Xxxx Xxx Wine Country Cuisine Lumiere
MasterPhotos Studio FormTool v4
MasterPhotos 75,000 IMSI Publisher
MasterPhotos 50,000 Living Media
MasterPhotos 25,000 3D Design Plus
MicroCookbook Web Business Builder
Graphics Converter MultiMedia Fusion
Graphics File Converter PeopleScheduler
NetAccelerator Deluxe WinDelete 97
NetAccelerator v2 WinDelete Deluxe
Net Accelerator v3 MapLinx Professional
NetAccelerator HiJaak Pro v4.5, v5
MasterPublisher 97 Hijaak v5 Professional
TotalCAD 2D/3D RAM Shield
109
EXHIBIT "H"
ARTTODAY COPYRIGHTS
SCHEDULE A - ISSUED COPYRIGHTS
None
SCHEDULE B - PENDING COPYRIGHT APPLICATIONS
None
SCHEDULE C - UNREGISTERED COPYRIGHTS
(Where No Copyright Application Is Pending)
None
ARTTODAY PATENTS
PATENT DESCRIPTION DOCKET NO. COUNTRY SERIAL NO. FILING DATE STATUS
------------------ ---------- ------- ---------- ----------- ------
Computer-Implemented U.S.A. Application 2/29/96 Pending
Optimization of Publishing 60/012,697
Layouts
ARTTODAY TRADEMARKS
TRADEMARK DESCRIPTION COUNTRY SERIAL NO. REG. NO STATUS
--------------------- ------- ---------- ------- ------
1) Costodometer U.S.A. 74-669,432 1,972,787 Registered
2) The Newspaper Architect U.S.A. 74-669,399 1,973,744 Registered
3) The Magazine Architect U.S.A. 74-669,311 1,972,785 Registered
4) Poteus U.S.A. 74-669,310 1,968,407 Registered
5) Rebel Artist
6) ArtToday
7) DeskGallery
8) DeskPaint
EXHIBIT "I"
MERGER AGREEMENT
EXHIBIT "J"
LEGAL OPINION
EXHIBIT "K"
SECRETARY / INCUMBENCY CERTIFICATE
110
