EXHIBIT 10.7
REAFFIRMATION OF GUARANTY AND SECURITY AGREEMENT
This Reaffirmation of Guaranty ("Agreement") is made as of October 9,
2001 by and among SILICON VALLEY BANK, a California banking corporation ("SVB"),
and XXXXXXXX.XXX, INC., an Arizona corporation ("ArtToday").
RECITALS
A. International Microcomputer Software, Inc. ("IMSI") is indebted to
SVB pursuant to a Loan and Security Agreement dated November 3, 1998
("SVB Loan Agreement").
The obligations under the SVB 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, 1999 and by the assets
described therein ("IP Collateral").
In addition the SVB 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 is 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 any promissory
notes issued thereto and all documents executed in connection
therewith, as amended and modified (collectively, "UBOC Loan
Agreement").
C. The obligations under the UBOC Loan Agreement ("UBOC Obligations")
are secured by the 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 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.
D. 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.
E. The SVB Obligations and the UBOC Obligations are guarantied pursuant
to the terms of a Limited Guaranty executed by ArtToday ("Limited
Guaranty").
F. The obligations of ArtToday under the ArtToday Guaranty are secured
by all of the assets of ArtToday pursuant to the terms of:
a Security Agreement (All Personal Property Assets) ("ArtToday
Security Agreement"); and
an Intellectual Property Security Agreement executed by Art Today
("ArtToday IP Security Agreement").
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G. Concurrent herewith IMSI and SVB and DCDC and other parties are
entering into a Restructure Agreement of even date which will
restructure and reduce the monetary obligations owed by IMSI under
the SVB Loan Agreement.
H. Concurrent herewith IMSI is executing as maker a promissory note of
even date ("Revised Promissory Note") in the original principal sum
of $1,200,000 which shall reflect the reduction of the monetary
obligations of IMSI under the SVB Loan Agreement.
I. DCDC intends to merge with a wholly owned subsidiary of IMSI ("Merger
Subsidiary") in such a manner that Merger Subsidiary acquires all
assets and obligations of DCDC (the "Merger Transaction"). Prior to
such merger DCDC will purchase the UBOC Loan Agreement. As a result
of the Merger Transaction Merger Subsidiary shall acquire the UBOC
Loan Agreement and all liens related thereto.
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:
Acknowledgment of Guaranty. ArtToday hereby recognizes and agrees that:
it is obligated as guarantor of all obligations and indebtedness under
the SVB Loan Agreement pursuant to the terms provided in the Limited
Guaranty; and
the Limited Guaranty guaranties all obligations of IMSI under the
Revised Promissory Note in addition to such other obligations as are
included in the SVB Loan Agreement.
Enforceability and No Defenses. ArtToday hereby confirms that the Limited
Guaranty remains in full force and effect and that there are no defenses,
offsets or counter-claims to its liability under the Limited Guaranty.
Acknowledgment of Security Agreements. ArtToday hereby recognizes and agrees:
It is obligated as debtor under the ArtToday Security Agreement and
bound by all of the terms thereof;
It is obligated as debtor under the ArtToday IP Security Agreement and
bound by all of the terms thereof;
The ArtToday Security Agreement and the ArtToday IP Security Agreement
remain in full force and effect and there are no defenses, offsets or
counter-claims to ArtToday's liability thereunder;
The ArtToday Security Agreement and the ArtToday IP Security Agreement
continue to secure the obligations of ArtToday under the Limited
Guaranty.
Consent. ArtToday hereby consents to the restructure of the SVB Loan Agreement
as provided in the Restructure Agreement and the related documents executed
concurrent herewith.
Reaffirmation. ArtToday hereby reaffirms: (i) the Limited Guaranty and the SVB
Loan Agreement and all terms thereof following the Merger Transaction; and (ii)
the ArtToday Security Agreement and the ArtToday IP Security Agreement and all
of the terms and all comments, representations and warranties contained therein
and thereof.
Waiver and Release.
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Waiver and Release. In further consideration of SVB entering into the
Restructure Agreement, ArtToday and each of its past and present officers,
shareholders, directors, employees and agents (collectively referred to as the
"Releasing Parties") hereby waives and releases any and all claims, rights and
defenses, causes of action and offsets of any nature whatsoever (known or
unknown) which each of them now has (or might have) against SVB, all of SVB's
past and present officers, directors, employees, agents, attorneys or
representatives arising under or related to the SVB Loan Agreement, the Limited
Guaranty, the Restructure Agreement or any other document executed in connection
with any of the foregoing documents. This waiver and release includes, but is
not limited to, claims, defenses, offsets and causes of action arising from or
in any way related to the SVB Loan Agreement, the Limited Guaranty and all
modifications, supplements and extensions thereto, all the advances thereunder
and SVB's actions in connection therewith. The Releasing Parties hereby
recognize and agree that the release herein releases and waives all defenses set
forth above.
Release of Third Parties. ArtToday hereby waives any right or defense it may now
or hereafter have based upon (i) SVB's release of any party who may be obligated
to SVB; (ii) SVB's release or impairment of any collateral for the SVB
Obligation; and (iii) the modification or extension of the SVB Obligation.
General Waivers. Without limiting the generality of any other waiver or other
provision of this Agreement, ArtToday hereby waives, to the maximum extent such
waiver is permitted by law, any and all benefits or defenses arising directly or
indirectly under any one or more of: (i) California Civil Code Sections 2808,
2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845, 2849, 2850, 2899,
and 3433; or (ii) California Uniform Commercial Code 3605.
Release. The Releasing Parties each understand (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 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 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."
Preservation of Agreements. Except as expressly modified herein, the terms and
conditions of 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 Limited Guaranty
and this 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 ArtToday 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 Limited Guaranty.
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IN WITNESS WHEREOF, the parties hereto have executed this Reaffirmation
of Guaranty Agreement as of the date set forth above.
XXXXXXXX.XXX, INC., SILICON VALLEY BANK,
a Utah corporation a California corporation
By: /s/ XXXXXX XXXX III By: /s/ XXXXX XXXXXXXX XxXXX
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Its: CEO Its: Vice President
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