EXHIBIT 10.1
LOAN PURCHASE AGREEMENT
THIS LOAN PURCHASE AGREEMENT (this "Agreement") is made and entered into as of
August 22, 2001, by and between DIGITAL CREATIVE DEVELOPMENT CORPORATION
("Buyer"), and UNION BANK OF CALIFORNIA, N. A. ("Seller"), with reference to the
following:
A. Seller has heretofore made that certain $3,601,000.00 loan (the
"Loan"), to International Microcomputer Software, Inc. ("Borrower")
and Xxxxxxxx.xxx ("Guarantor"), which Loan is evidenced by that
certain Second Amended and Restated Secured Non-Revolving Reducing
Promissory Note ("Note") dated April 23, 1999, made payable by
Borrower to the order of Seller in the original principal amount of
$7,200,000.00, and is secured by the following: (i) that certain
Security Agreement dated as of May 1, 1998 ("California Security
Agreement") pursuant to which Borrower granted to Bank a security
interest in the personal property described therein ("California
Collateral") and it was perfected by the filing of a UCC-1 Financing
Statement with the California Secretary of State on May 15, 1998, as
file no. 9813561043 ("California UCC-1"); (ii) that certain
Collateral Assignment, Patent Mortgage and Security Agreement dated
as of May 1, 1998 ("Patent Security Agreement") pursuant to which
Borrower granted to Bank a security interest in the intellectual
property described therein ("Patent Collateral") and it was
perfected by a filing with the United States- Department of Commerce
Patent and Trademark Office on July 24, 1998 as file no. 100773879
and on March 16, 1999 as file no. 100985547 (each a "Patent Filing"
collectively the "Patent Filings") and by the filing of a UCC-1
Financing Statement with the California Secretary of State on May
15, 1998, as file no. 9813561037 ("Patent UCC-1); and (iii) that
certain Pledge Agreement dated as of February 21, 2000 ("Pledge
Agreement") pursuant to which Borrower granted to Bank a security
interest in the common stock of Guarantor described therein ("Stock
Collateral"). The documents and instruments pertaining to the Loan
are further described in the Index of Loan Documents attached hereto
as Exhibit A. All of the documents and instruments evidencing,
securing or pertaining to the Loan, including without limitation
those referred to in this paragraph, are hereinafter referred to
collectively as the "Loan Documents." All types of collateral
referred to in this paragraph are hereinafter referred to
collectively as "Collateral".
B. The Loan matured September 30, 1999, and since then has been in
default.
C. Buyer desires to purchase the Loan and the Loan Documents from
Seller, and Seller desires to sell the Loan and the Loan Documents
to Buyer, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises and
agreements hereinafter contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Buyer
hereby agree as follows:
1. PURCHASE AND SALE.
Subject to the terms and conditions of this Agreement, Buyer shall
purchase from Seller, and Seller shall sell to Buyer, all of Seller's
right, title and interest in and to the Loan and the Loan Documents,
without recourse and without representation or warranty of any kind except
as expressly set forth in this Agreement.
2. PURCHASE PRICE
(a) The purchase price (the "Purchase Price") payable by Buyer to Seller
hereunder for the Loan and the Loan Documents shall be Two Million
Five Hundred Thousand Dollars ($2,500,000.00).
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(b) The Purchase Price shall be paid by Buyer through a wire transfer to
Seller, in accordance with the following wire transfer instructions:
Union Bank of California, N.A. Monterey Park, California
ABA No.: 000-000-000
Wire Account No.: 070-196431
Wire Account Name: Wire Transfer Clearing Account
Attention: 192 Commercial Note Center
Fax No.: (000) 000-0000 or -2251
Telex No.: 188612, UNIONBK UT
Reference: International Microcomputer Software, Inc.
Obligor #000-000-000-0
Contact: Xxxxxxxxxx Xxxxxxxxx, VP
Special Assets Department, 1-001-8
000-000-0000
(c) Upon Seller's receipt of the Purchase Price, Buyer shall become the
owner of and entitled to receive from and after the Closing all
payments and recoveries in respect of the Loan. In no event shall
Buyer have any right or claim in or to any loan fee, commitment fee,
payment or recovery received by Seller prior to the Closing in
respect of the Loan.
3. CLOSING
(a) The consummation of the purchase and sale of the Loan and the Loan
Documents contemplated hereby (the "Closing") shall occur on a date
mutually approved by Seller and Buyer, but no later than August 31,
2001. If the Closing has not occurred by the close of business on
such date, then this Agreement shall, at the written election of
either Seller or Buyer, be terminated and Seller and Buyer shall
have no liability whatsoever to each other relating to the
transactions contemplated hereby, whether arising under this
Agreement or otherwise; provided, however, that (i) in the case
where the Closing has not occurred by the close of business on such
date solely because of the failure of one party to use reasonable
efforts to close, the other party alone shall have the right, at its
option, to either terminate this Agreement or specify a reasonable
extension of the Closing; and (ii) in the event that this Agreement
is terminated for any reason, the terms and provisions of Sections
10 and 11 of this Agreement shall survive.
(b) Seller shall bear no expense in connection with this Agreement or
the transactions contemplated hereby.
4. SERVICING.
Upon the Closing of the sale of the Loan, Buyer shall assume complete
responsibility for the servicing and administration of the Loan,
including, but not limited to, the collection of all payments thereunder,
and Seller shall have no further servicing or administrative
responsibilities with respect to the Loan.
5. SELLER'S CLOSING DOCUMENTS.
Except as otherwise provided in this Section, at or promptly following the
Closing, Seller shall deliver the following documents and items
(collectively, the "Closing Documents"), and Buyer agrees to execute and
promptly deliver to Seller a receipt for such documents and items upon
Buyer's receipt thereof:
(a) The executed original of the Note.
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(b) An Endorsement to Promissory Note in the form of Exhibit B attached
hereto, duly executed by Seller, with respect to the Note, which
shall be attached to the Note.
(c) An Assignment of Loan Documents in the form of Exhibit C attached
hereto, duly executed by Seller, assigning and transferring to Buyer
all of Seller's rights and interests in and to the Loan Documents.
(d) The executed originals of all of the Loan Documents (or, if
unavailable, copies of such Loan Documents certified by Seller to be
true, correct and complete copies of the originals).
(e) A Uniform Commercial Code Assignment Statement duly executed by
Seller, for each Uniform Commercial Code Financing Statement naming
Seller as secured party that was recorded or filed in connection
with the Loan (collectively, the "UCC Assignments").
(f) Written notice of the assignment of the Loan, in form and substance
of that attached hereto as Exhibit D duly executed by Seller,
instructing Borrower to remit all payments to Buyer or its
collection agent.
(g) The original stock certificate(s) evidencing the Stock Collateral
and accompanying stock power(s).
(h) Written assignment to Buyer of the Patent Filing, in form suitable
for filing in the United States-Department of Commerce Patent and
Trademark Office, duly executed by Seller.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Buyer, which representations and
warranties shall be deemed restated as of the Closing, that:
(a) Seller is a national banking association, duly organized, validly
existing and in good standing under the laws of the United States.
(b) Seller has, and at all relevant times has had, the full power and
authority to execute, deliver and perform, and to enter into and
consummate all transactions contemplated by this Agreement. Seller
has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement and this
Agreement constitutes a legal, valid and binding obligation of
Seller, enforceable against it in accordance with its terms.
(c) The execution and delivery of this Agreement by Seller, and the
performance and compliance with the terms of this Agreement by
Seller, will not violate Seller's charter or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(d) Seller is the current legal and beneficial owner and holder of the
Loan and the Loan Documents.
(e) As of August 21, 2001, the outstanding principal balance of the Note
was $3,601,000.00, the amount of accrued but unpaid interest on the
Note was $26,480.69 and interest has been paid through July 31,
2001.
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(f) To the best of Seller's knowledge, there is no litigation pending
against Seller which, if determined adversely to Seller, would
materially adversely affect Seller's sale of the Loan or the
execution, delivery or enforceability of this Agreement.
(g) Seller shall not, during the term of this Agreement, enter into an
agreement with any third party with respect to its purchase of the
Loan.
It is understood and agreed that the representations and warranties set
forth above shall survive the assignment of the Loan to Buyer.
7. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to Seller, which representations and
warranties shall be deemed restated as of the Closing, that:
(a) Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Utah.
(b) Buyer has, and at all relevant times has had, the full power and
authority to execute, deliver and perform, and to enter into and
consummate all transactions contemplated by this Agreement. Buyer
has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement and this
Agreement constitutes a legal, valid and binding obligation of
Buyer, enforceable against it in accordance with its terms.
(c) The execution and delivery of this Agreement by Buyer, and the
performance and compliance with the terms of this Agreement by
Buyer, will not violate Buyer's charter or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(d) Buyer is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or
decree of any court, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority.
(e) To the best of Buyer's knowledge, there is no litigation pending or
threatened against Buyer, which if determined adversely to Buyer,
would materially adversely affect Buyer's purchase of the Loan or
the execution, delivery or enforceability of this Agreement.
(f) The purchase of the Loan is a legal investment for Buyer under
applicable laws.
(g) Buyer (i) is a sophisticated entity with respect to the purchase of
the Loan and the Loan Documents, (ii) is able to bear the economic
risk associated with the purchase of the Loan and the Loan
Documents, (iii) has adequate information concerning Borrower's and
Guarantor's business and financial condition to make an informed
decision regarding the purchase of the Loan and the Loan Documents,
(iv) has such knowledge and experience, and has made investments of
a similar nature, so as to be aware of the risks and uncertainties
inherent in purchases of the type contemplated in this Agreement,
and (v) has independently and without reliance upon Seller, and
based on such information as Buyer has deemed appropriate, made its
own analysis and decision to enter into this Agreement, except that
Buyer has relied upon Seller's express representations, warranties,
covenants, and indemnities in this Agreement. Buyer acknowledges
that Seller has not given Buyer
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any investment advice, credit information, or opinion on whether the
purchase of the Loan or the Loan Documents is prudent.
The foregoing representations and warranties of Buyer shall survive the
execution of this Agreement and the Closing.
8. CONDITIONS PRECEDENT TO CLOSING; SELLER'S COVENANT.
The following shall be conditions precedent to Buyer's and Seller's
respective duties and obligations under this Agreement, unless Buyer or
Seller (whichever is the beneficiary of the condition in question) waives
the satisfaction thereof in writing:
(a) Seller and Buyer shall each have performed and discharged all of
their respective obligations under this Agreement, whether set forth
in this Section or elsewhere in this Agreement.
(b) Seller and Buyer shall each have delivered to the other party, all
payments, documents and instruments required of such party by the
terms of this Agreement at the times and in the manner provided
hereunder, including without limitation Buyer's payment to Seller of
the Purchase Price in accordance with Section 2 hereof.
(c) Seller and Buyer shall each have done, executed, acknowledged and
delivered all such further acts, instruments and assurances and
shall have taken all such further actions as shall be reasonably
necessary or desirable to consummate and effect the transactions
contemplated by this Agreement.
(d) The representations and warranties of Buyer and Seller contained in
Sections 6 and 7 hereof shall be true and correct as of the Closing.
(e) Borrower and Guarantor shall have executed and delivered to Seller a
general release of claims in the form of Exhibit E, whereunder
Borrower and Guarantor release any and all claims against Seller.
(f) Borrower shall have paid to Seller in immediately available funds
(i) Twenty One Thousand Dollars ($21,000.00) for application to the
outstanding principal of the Loan and (ii) all interest accrued on
the Loan through and including the Closing.
The conditions described above are exclusively conditions precedent to the
Closing. Buyer and Seller agree to use reasonable efforts to satisfy such
conditions, but neither Seller nor Buyer shall have any liability
hereunder whatsoever if the subject transaction is not consummated solely
because of the failure of any such condition to be satisfied
notwithstanding the use of such reasonable efforts.
During the period commencing on the date on which this Agreement is
executed by both Seller and Buyer and ending on the Closing or sooner
termination of this Agreement, Seller shall not enter into any
modification, amendment, supplement, consent, approval or waiver with
respect to the Loan or any of the Loan Documents (which shall be referred
to herein as a "Changed Circumstance") without Buyer's prior written
consent, except as required by law, by the terms of the Loan Documents or
pursuant to the terms of previously negotiated settlements or similar
contracts entered into or pending as of the date of this Agreement and
disclosed to Buyer prior to the date of this Agreement.
9. MISCELLANEOUS
(a) All written notices or demands of any kind that either party hereto
may be required or may desire to serve on the other party hereto in
connection with this Agreement shall be served (as an alternative
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to personal service) by registered or certified mail. Any such
notice or demand so to be served by registered or certified mail
shall be deposited in the United States Mail with postage thereon
fully prepaid and, if the party so to be served be Seller, addressed
to Seller as follows:
Union Bank of California, N. A.
Special Assets Department
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxx Xxxxxxxxx, VP
and if the party so to be served be Buyer, addressed to Buyer
as follows:
Digital Creative Development Corporation
00 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx III
Service of any such notice or demand so made by mail shall be deemed
complete on the date of actual delivery as shown by the addressee's
registry or certification receipt or at the expiration of the third
(3rd) business day after the date of mailing, whichever is earlier
in time. Any party hereto may from time to time, by notice in
writing served upon the other party hereto as aforesaid, designate a
different mailing address to which or a different person to whose
attention all such notices or demands are thereafter to be
addressed.
(b) No delay or omission by either party hereto in exercising any right
or power arising from any default by the other party hereto shall be
construed as a waiver of such default or as an acquiescence therein,
nor shall any single or partial exercise thereof preclude any
further exercise thereof or the exercise of any other right or power
arising from any default by the other party hereto. No waiver of any
breach of any of the covenants or conditions contained in this
Agreement shall be construed to be a waiver of or an acquiescence in
or a consent to any previous or subsequent breach of the same or of
any other condition or covenant.
(c) This Agreement is made for the sole benefit of Seller and Buyer and
their respective successors and permitted assigns, and no other
person or persons shall have any rights or remedies under or by
reason of this Agreement or any right to the exercise of any right
or power of either party hereto or arising from any default by
either party hereto.
(d) Seller may accept deposits from, lend money to, act as trustee under
indentures or in general engage in any kind of business with
Borrower, any guarantor or their subsidiaries, owners, partners or
affiliates, if any (collectively, "Borrower's Affiliates"), or any
person who may do business with or own interests in any of them.
(e) After Closing, Buyer hereby agrees to allow Seller reasonable access
to the Loan Documents, upon reasonable prior notice to Buyer. Buyer
further agrees to allow Seller, at its expense, to inspect and make
abstracts from or copies of any of the Loan Documents, upon
reasonable terms and conditions and upon reasonable prior notice to
Buyer. Before destruction or disposition of any of the Loan
Documents, Buyer shall attempt to give reasonable notice to Seller
and allow Seller, at its expense, to recover the same from Buyer.
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(f) In the event any legal action is undertaken in order to enforce or
interpret any provision of this Agreement, the prevailing party in
such legal action, as determined by the court, shall be entitled to
receive from the other party the prevailing party's reasonable
attorneys' fees and court costs.
(g) Time is hereby declared to be of the essence of this Agreement and
of every part hereof. When the context and construction so require,
all words used in the singular herein shall be deemed to have been
used in the plural and the masculine shall include the feminine and
the neuter and vice versa.
(h) Prior to Closing, this Agreement shall not be assigned by Buyer
without the written consent of Seller, which consent may be withheld
in Seller's sole discretion.
(i) This Agreement constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof,
superseding all prior written or oral understandings, and may not be
terminated, modified or amended in any way except by a written
agreement signed by each of the parties hereto.
(j) This Agreement may be executed in two (2) or more counterparts,
which may be delivered by facsimile transmission, each of which
shall be deemed an original but all of which together shall
constitute but one and the same document.
(k) Except as otherwise expressly provided in this Agreement, whether or
not the transactions contemplated by this Agreement are consummated,
Buyer shall pay all of its Closing and due diligence expenses and
its expenses in negotiating and carrying out its obligations under
this Agreement, including the costs of its legal counsel and all of
the expenses of Buyer relating to this Agreement.
(l) Buyer and Seller hereby acknowledge, confirm and agree that Buyer
shall have no claims and Seller shall have no liability whatsoever
as a result of or otherwise in connection with any claim that may
arise by reason of the incapacity, lack of authority, death or
disability of Borrower or any other person or entity or the failure
of Seller to file or enforce any claim against Borrower or any other
person or entity, any claim based upon an election of remedies by
Seller, any claim based upon a duty, if any, on the part of Seller
to disclose to Buyer any facts that Seller may now or hereafter know
about Borrower or any other person or entity, or any notice of
default, notice of sale or bankruptcy of Borrower under the Loan.
(m) BUYER AND SELLER HEREBY ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN
NEGOTIATED AND EXECUTED IN THE STATE OF CALIFORNIA. BUYER AND SELLER
EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY,
INTERPRETED UNDER AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA (WITHOUT GIVING EFFECT TO
CALIFORNIA'S PRINCIPLES OF CONFLICTS OF LAWS). BUYER AND SELLER EACH
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN THE COUNTY OF SAN FRANCISCO, STATE OF
CALIFORNIA, OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT. SELLER AND BUYER EACH EXPRESSLY AND
UNCONDITIONALLY WAIVE IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT UNDER OR ARISING OUT OF THIS AGREEMENT ANY AND
EVERY RIGHT EACH MAY HAVE TO A TRIAL BY JURY.
10. BROKERS.
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Buyer and Seller each warrant to the other that no fees or commissions are
due or owing to any finders or brokers as a result of the respective
activities of each party in connection with this transaction. In the event
of any claim for brokers' or finders' fees or commissions in connection
with the negotiation, execution or consummation of this Agreement or the
purchase and sale of the Loan, then Buyer shall indemnify, save harmless
and defend Seller from and against any such claim based upon the alleged
statement, representation or agreement by Buyer, and Seller shall
indemnify, save harmless and defend Buyer from and against any such claim
based upon any alleged statement, representation or agreement by Seller.
The indemnity provided for herein shall survive the Closing or the
termination of this Agreement for any reason.
11. INDEMNIFICATION BY BUYER.
Buyer hereby indemnifies and agrees to defend and hold harmless Seller and
each of its affiliates, agents, employees, successors and assigns from and
against any and all losses, liabilities, obligations, judgments,
settlements, damages, costs and expenses, including, without limitation,
interest, penalties and reasonable attorneys' fees, court costs and other
reasonable expenses of litigation and arbitration, suffered by any of such
parties and arising out of or due to:
(a) following the Closing, any act or omission of Buyer in its capacity
as lender under the Loan Documents, provided that forgiveness of the
Loan in whole or part by Buyer following Closing in and of itself
shall not give rise to any liability of Buyer to Bank under this
Section; and
(b) any material breach by Buyer of its representations, warranties,
covenants or agreements set forth in this Agreement.
Any legal counsel hired by Buyer in connection with the indemnification of
Seller pursuant to this Section shall be subject to approval by Seller.
The foregoing indemnity shall survive Closing.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the day
and year first above written.
"SELLER" "BUYER"
UNION BANK OF CALIFORNIA, N. A. DIGITAL CREATIVE DEVELOPMENT CORPORATION
By: /s/ XXXXXXXXXX XXXXXXXXX By: /s/ XXXXXX XXXX III
----------------------------- ---------------------------------
Title: Vice President Title: President and CEO
----------------------------- ---------------------------------
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SCHEDULE OF EXHIBITS
A. Index of Loan Documents
B. Endorsement to Promissory Note to be executed by Seller
C. Assignment of Loan Documents to be executed by Seller
D. Notice to Borrower of Assignment of Claims and Supporting Documentation
E. Borrower's Release
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EXHIBIT A
EXHIBIT B
ENDORSEMENT TO PROMISSORY NOTE
This Endorsement applies to that certain Second Amended and Restated Secured
Non-Revolving Reducing Promissory Note executed by International Microcomputer
Software, Inc. to the order of UNION BANK OF CALIFORNIA, N. A. dated April 23,
1999 in the original amount of Seven Million Two Hundred Thousand and No/100
Dollars ($7,200,000.00), as amended.
PAY TO THE ORDER OF Digital Creative Development Corporation, without recourse
and without representation or warranty of any kind except as expressly set forth
in that certain Loan Purchase Agreement dated as of August 22, 2001, by and
between the undersigned and Digital Creative Development Corporation.
Dated as of August ___, 2001.
UNION BANK OF CALIFORNIA, N. A.
By: /s/ XXXXXXXXXX XXXXXXXXX
-----------------------------
Xxxxxxxxxx Xxxxxxxxx
Vice President
EXHIBIT C
ASSIGNMENT OF LOAN DOCUMENTS
FOR VALUE RECEIVED the undersigned, UNION BANK OF CALIFORNIA, N. A.
("Assignor"), hereby assigns and transfers to Digital Creative Development
Corporation ("Assignee"), all of Assignor's right, title and interest in, to and
under any and all document and instrument executed in connection with, or
related in any manner whatsoever to, the loan evidenced by (i) that certain
Second Amended and Restated Secured Non-Revolving Reducing Promissory Note dated
April 23, 1999; and (ii) all those certain loan documents and instruments
expressly described on Exhibit A attached hereto and hereby made a part hereof.
This Assignment shall be binding upon and shall inure to the benefit of Assignor
and Assignee and their respective successors and assigns.
This Assignment is made without representation or warranty by, or recourse to,
Assignor, except as specifically set forth in the Loan Purchase Agreement dated
as of August 22, 2001, between Assignor and Assignee.
Date: August _____, 0000
XXXXX XXXX XX XXXXXXXXXX, N. A.
By: /s/ XXXXXXXXXX XXXXXXXXX
-----------------------------
Xxxxxxxxxx Xxxxxxxxx
Vice President
EXHIBIT D
August 31, 2001
Via Certified Mail
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International Microcomputer Software, Inc.
00 Xxxxxxx Xxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Re: Sale and Transfer of Loan evidenced by that certain Second Amended and
Restated Secured Non-Revolving Reducing Promissory Note dated April 23, 1999,
made by International Microcomputer Software, Inc., payable to the order of
Union Bank of California, N.A., in the original principal amount of $
7,200,000.00.
Ladies and Gentlemen:
Effective August 31, 0000, XXXXX XXXX XX XXXXXXXXXX, N. A. has transferred the
above-referenced loan (the "Loan") to Digital Creative Development Corporation
("Purchaser").
Accordingly, you are hereby irrevocably and unconditionally authorized and
directed that each payment of interest, principal, escrows or any other charge
made by you under the Loan is to be made in the form of a check made payable to
the order of Purchaser, and delivered to the following address:
Fleet Bank
Hartford, CT
ABA # 000-000-000
Digital Creative Development Corporation
Account # 000-000-0000
Payments that are not made in accordance with this authorization and direction
will not be credited to payment of such interest, principal, escrows or other
charges until otherwise properly directed.
Yours truly,
UNION BANK OF CALIFORNIA, N. A.
By: /s/ XXXXXXXXXX XXXXXXXXX
-----------------------------
Xxxxxxxxxx Xxxxxxxxx
Vice President
cc: Xxxxxxxx.xxx, Guarantor (via certified mail)
EXHIBIT E
BORROWER'S AND GUARANTOR'S RELEASE
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
International Microcomputer Software, Inc., a corporation, and Xxxxxxxx.xxx, on
their own behalf and on behalf of their past, present and future officers,
directors, shareholders, representatives, agents, attorneys, administrators,
predecessors, successors and assigns (collectively, the "Releasing Parties"),
hereby enter into this Borrower's and Guarantor's Release ("Release").
The Releasing Parties are entering into this Release in connection with that
certain loan (as heretofore amended, the "Loan"), heretofore made by UNION BANK
OF CALIFORNIA, N. A. ("Bank") to International Microcomputer
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Software, Inc., a California corporation ("Borrower"), and Xxxxxxxx.xxx
("Guarantor"), which Loan is evidenced by that certain Second Amended and
Restated Secured Non-Revolving Reducing Promissory Note dated April 23, 1999
made payable by Borrower to the order of Bank in the original principal amount
of $7,200,000.00 (as previously amended, the "Note").
NOW, THEREFORE, the Releasing Parties hereby release and forever discharge Bank
from and against all claims, demands or causes of action arising out of or
relating to the Loan including, without limitation, all actions taken or not
taken by Bank with respect thereto prior to the date hereof.
The Releasing Parties represent, warrant and agree that in executing and
entering into this Release they are not relying and have not relied upon any
representations, promises or statements made by anyone that are not recited,
contained or embodied herein.
The Releasing Parties understand and expressly assume the risk that any fact not
recited, contained or embodied herein may turn out hereafter to be other than,
different from or contrary to the facts now known by the Releasing Parties or
believed by the Releasing Parties to be true. Nevertheless, the Releasing
Parties, with the advice of their own independently selected legal counsel,
intend by this Release to release fully, finally and forever all released
matters and agree that this Release shall be effective in all respects
notwithstanding any difference in facts, and shall not be subject to
termination, modification or rescission by reason of any such difference in
facts. In that regard, the Releasing Parties waive all rights that they may have
California Civil Code Section 1542 (and all similar ordinances and statutory,
regulatory, or judicially created laws or rules of any other jurisdiction),
which provides:
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 Releasing Parties hereby represent and warrant that they have not heretofore
assigned or transferred or purported to assign or transfer to any person or
entity all or any part of any interest in any claim, contention, demand or cause
of action relating to this Release.
This Release may be executed in two (2) or more counterparts, each of which
shall be an original but all of which together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, this Release has been executed as of August ____, 2001.
BORROWER
INTERNATIONAL MICROCOMPUTER SOFTWARE, INC.
By: /s/ XXXXXXXX X. XXXXXXX
---------------------------------
Title: CEO
---------------------------------
GUARANTOR
XXXXXXXX.XXX
By: /s/ XXXXXXXX X. XXXXXXX
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Title: CEO
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