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.
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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).
(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, NA. 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,
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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.
(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
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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.
(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.
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(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 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
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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 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
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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 Ill
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.
(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
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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 or 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
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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. 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________________________________ By:______________________
Title:____________________________ Title:___________________
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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
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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: ______________________________
Xxxxxxxxxx Xxxxxxxxx
Vice President
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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: _______________________________
Xxxxxxxxxx Xxxxxxxxx
Vice President
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EXHIBIT D
August 31, 2001
Via Certified Mail
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: ____________________________
Xxxxxxxxxx Xxxxxxxxx
Vice President
cc: Xxxxxxxx.xxx, Guarantor (via certified mail)
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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 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
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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:_________________________________
Title: _____________________________
GUARANTOR
Xxxxxxxx.xxx
By:________________________________
Title:_____________________________
1. UCC Assignment -Initial Financing Statement #9813561037.
2. UCC Assignment -Initial Financing Statement #9813561043.
3. UCC Assignment -Initial Financing Statement #100773879.
4. UCC Assignment -Initial Financing Statement#100985547.
5. UCC Assignment -Initial Financing Statement#110067640.
6. Original Letter Agreement between UBOC and International Microcomputer
Software, Inc. as of February 21, 2000.
7 Original First Amended and Restated Loan Agreement between International
Microcomputer Software. Inc. and UBOC as of April 23, 1999.
8. Continuing Guaranty between XxxXxxxx.Xxx, Inc. and UBOC dated as of
February 21, 2000.
9. Original Certificate of Incorporation from the State of Arizona Office
of the Corporate Commission regarding XxxXxxxx.Xxx, Inc.,
10. Original Union Bank of California Security Agreement dated as of
February 21, 2000 between UBOC and XxxXxxxx.Xxx., Inc.-With Annex I
11. Original Pledge Agreement between International Microcomputer Software,
Inc., and UBOC dated as of February 21, 2000- with attached Schedule I
and Schedule II, and Assignment Separate from Certificate dated February
21, 2000.
12. Original Affidavit of Lost Certificate dated October 19. 1998- regarding
Certificate Number 8 issued for 1,000 shares of the common stock of
Zedcor, Inc., an Arizona corporation.
13. Original Pledge Agreement between International Microcomputer Software,
Inc., and UBOC dated as of April 23. 1999-To include Schedule I dated as
of April 23, 1999, and Schedule II.
14. Original Security Agreement between International Microcomputer
Software, Inc. and UBOC dated May 1. 1998- to include Exhibit A and
Exhibit B, and a listing of Affiliates and Subsidiaries Offices.
15. Copy of Collateral Assignment, Patent Mortgage and Security Agreement
between International Microcomputer Software, Inc. and UBOC as of May
1,1998-with exhibits
16. Copy of Subordination Agreement dated January 28. 1999 between
International Microcomputer Software. Inc., and Silicon Valley Bank.
17. Copy of the Collateral Assignment, Patent Mortgage and Security
Agreement between International Microcomputer Software, Inc. and UBOC
dated June 23, 1999
18. Copy of letter dated October 26, 1998 re: Certified Copy of Trademark
Recording between International Microcomputer Software, Inc.. and UBOC.
19. Copy of Letter Re: Collateral Assignment, Patent Mortgage and Security
Agreement dated May 7,1998.
20. Copy of Certificate from the United States Department of Commerce-United
States Patent and Trademark Office dated October 21, 1998.
21. Plastic package containing the originals of items number 17,18,19 and
20.
22. Original Second Amended and Restated Secured Non-Revolving Reducing
Promissory Note in the amount of $7,200,000.00.00 dated September 30,
1999.
23. Folder containing the following documents:
a. Certificate Number #1 50.00 shares of Software Development
International, LTD
b. Certificate Number 0002-1 share of IMSI (Bermuda) LTD. Issued to Xxxxxx
X. Xxxxx
c. Certificate Number 0003-1 share of IMSI (Bermuda) LTD. Issued to Xxxxxx
Xxxxx
d. Certificate Number 0004-1 share of IMSI (Bermuda) LTD Issued to Xxxxxxx
Xxxxxxxx
e. Certificate Number 0005-1 share if IMSI (Bermuda) LTD. Issued to
Xxxxxxxx Xxxxxxx f Certificate Number 0001-11994 shares of IMSI
(Bermuda) LTD Issued to International Microcomputer Software, Inc.
g. Share Certificate Number 4 IMSI Australia PTY. LTD--50 shares to
International Microcomputer Software, Inc.
h. Share Certificate Number 3 IMSI Australia PTY. LTD--50 shares to
International Microcomputer Software, Inc.
i. Original Memo dated June 19, 2000 with regards to the Zedcor Stock
j. Copy of letter dated August 21, 2000, with the original signature of
UBOC
k. Declaration of Trust-Xxxxxxx Xxxxxxx
I. Declaration of Trust-Xxxxxx Xxxxx
m. Declaration of Trust-Xxxxxxxx Xxxxxxx
n. Declaration of Trust-Xxxxxx X. Xxxxx
o. Original Schedule dated February 21, 2000
p. Original Stock Certificate Number 5-226,878 shares of XxxXxxxx.Xxx.,
Inc. to International Microcomputer Software, Inc.
q. Assignment Separate from Certificate dated August 21, 2000
r. Original Officer s Certificate dated April 23, 1999
s. Annex "A"
t. Articles of Amendment to the Articles of Incorporation of Zedcor, Inc.
(Copy)
u. Exhibit A to Item #20
v. Articles of Incorporation of Zedcor, Inc. (Copy)
w. Article V to Item #22
x. Annex "B"
y. Copy of Stock Certificate Number 1-1 78,223 shares of XxxXxxxx.Xxx.,
Inc. to International Microcomputer Software, Inc
z. Annex "C"
aa. Copy of Stock Certificate Number 2-45,377 shares of XxxXxxxx.Xxx., Inc.
to International Microcomputer Software, Inc
bb. Annex "D"
cc. Copy of Stock Certificate Number 3-2,278 shares of XxxXxxxx.Xxx., Inc.
to International Microcomputer Software, Inc
dd. Annex "E"
ee. Copy of Stock Certificate Number 4-1,000 shares of XxxXxxxx.Xxx., Inc.
to International Microcomputer Software. Inc
ff. Annex "F"
gg. Copy of Stock Certificate Number 5-226,878 shares of XxxXxxxx.Xxx., Inc.
to International Microcomputer Software, Inc.
