Document/Exhibit Description Pages Size
1: 10KSB Annual Report -- Small Business 38 212K
6: EX-10.10 Material Contract 7 34K
7: EX-10.11 Material Contract 69 237K
8: EX-10.12 Material Contract 26 97K
9: EX-10.13 Material Contract 55 176K
10: EX-10.14 Material Contract 17 65K
2: EX-10.6 Material Contract 4 14K
3: EX-10.7 Material Contract 2 10K
4: EX-10.8 Material Contract 5 18K
5: EX-10.9 Material Contract 9 44K
11: EX-21.1 Subsidiaries of the Registrant 1 6K
12: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 7K
Exhibit 10.14
EXECUTION COPY
CONFIDENTIAL INFORMATION
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CAKEWALK LLC
and
CAKEWALK BRE LLC
-----------------------------------------------
CAPITAL CONTRIBUTION AGREEMENT
-----------------------------------------------
Dated June 29, 1999
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TABLE OF CONTENTS
Page
----
Section 1. Closing Date ................................................... 1
Section 2. Definitions .................................................... 1
Section 3. Warranties, Representations, Covenants and Agreements .......... 1
Section 4. Conveyance ..................................................... 7
Section 5. Procedures With Respect to Contract Assets ..................... 7
Section 6. Conveyance and the Membership Interests ........................ 7
Section 7. Certificates and Opinions; Additional Documents and Power
of Attorney .................................................... 8
Section 8. Actions ........................................................ 9
Section 9. Withholding .................................................... 9
Section 10. Indemnity ...................................................... 9
Section 11. Notices ........................................................ 10
Section 12. Entire Agreement ............................................... 11
Section 13. Miscellaneous .................................................. 11
Section 14. Assignment and Delegation ...................................... 12
Section 15. Recharacterization ............................................. 13
Section 16. Nonpetition Covenant ........................................... 13
LIST OF EXHIBITS
Appendix A: Standard Definitions
Exhibit A: Description of Assets
Exhibit A-1: Masters
Exhibit A-2: Restricted Assets
Exhibit A-3: Royalty or Participation Agreements
Exhibit A-4 Licenses
Exhibit A-5 Other Assets
Exhibit B: Impositions on Rights
Exhibit C: List of Advanced Payments
Exhibit D: Form of Assignment of Rights
Exhibit E: Form of Letter of Direction
This CAPITAL CONTRIBUTION AGREEMENT (the "Agreement"), is dated June
29, 1999 and is between CAKEWALK LLC ("Cakewalk LLC"), a Delaware limited
liability company and CAKEWALK BRE LLC, a New York limited liability company
(the "Company").
-----------------------------
Cakewalk LLC desires to contribute valuable assets to the Company in
return for the Membership Interests of the Company as set forth in the Operating
Agreement, dated as of June 4, 1999, executed by Cakewalk LLC establishing and
governing the Company (the "Operating Agreement") and the Company wishes to
accept such assets;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
Section 1. Closing Date. The "Closing Date" shall be the date
hereof. On the Closing Date, the Company shall acquire from Cakewalk LLC, and
Cakewalk LLC shall transfer to the Company as a contribution of assets in
exchange for the Membership Interest under Section 721 of the Code, subject to
any applicable Impositions on Rights, the Assets described in Exhibit A hereto.
Section 2. Definitions. All capitalized terms used, but not defined,
herein shall have the meanings specified in the Standard Definitions set forth
in Appendix A hereto.
Section 3. Warranties, Representations, Covenants and Agreements. On
and as of the date of this Agreement and the Closing Date (if not the same),
Cakewalk LLC warrants, represents, covenants and agrees as follows:
I. With respect to Cakewalk LLC:
a. Cakewalk LLC has the power, capacity and authority to enter into,
execute and implement this Agreement fully, and Cakewalk LLC has performed
and fulfilled and shall perform and fulfill all of the obligations
required to be performed or fulfilled by Cakewalk LLC under this Agreement
as and when required under this Agreement;
b. Subject to the Impositions on Rights described in Exhibit B
hereto, Cakewalk LLC is the sole and exclusive owner of the Assets owned
by it, as applicable, free and clear of any claims, demands, actions or
other encumbrances by any person, firm or corporation, and Cakewalk LLC's
transfer of the Assets owned by it, as applicable, to the Company shall
vest in the Company full marketable title in and to all such Assets, free
and clear of all claims, demands, actions or other encumbrances, in each
case, other
than the Impositions on Rights or as otherwise set forth in this
Agreement;
c. Cakewalk LLC shall make available or has made available to the
Company for the Company's inspection and evaluation all such Assets no
later than the Business Day prior to the Closing Date;
d. (i) Promptly upon Cakewalk LLC's receipt of any Gross Receipts
after the Closing Date (but in no event later than two (2) Business Days
after receipt thereof), Cakewalk LLC shall account for and pay to the
Company the aggregate amount of such Gross Receipts and Cakewalk LLC
shall, immediately upon Cakewalk LLC's receipt thereof, deliver to the
Company the original copies of all accounting statements and other
documents received by or on behalf of Cakewalk LLC relating to such Gross
Receipts;
(ii) Cakewalk LLC hereby irrevocably constitutes, authorizes,
empowers and appoints the Company as Cakewalk LLC's true and lawful
attorney (with full power of substitution and delegation), in Cakewalk
LLC's name and in such Cakewalk LLC's place and stead, or in the Company's
name, which power shall be irrevocable and is coupled with an interest, to
take such action, and to sign, endorse, execute, deposit and disburse, in
such Cakewalk LLC's name or otherwise, all checks and other payments
consisting entirely of Gross Receipts which the Company is entitled to
receive after the Closing Date in accordance with the terms and conditions
hereof;
e. Cakewalk LLC has complied with the terms and conditions of all
the Royalty or Participation Agreements, Licenses and all other agreements
and licenses constituting the Assets or to which any of the Assets are
subject through the Closing Date;
f. Cakewalk LLC shall not from and after the date of this Agreement
enter into or execute any agreements or licenses for any exploitation of
any Assets except (i) as to any portion of the Assets which is repurchased
by Cakewalk LLC pursuant to Section 10(b) hereof or (ii) pursuant to the
Management Agreement;
g. This Agreement constitutes the legal, valid and binding
obligation of Cakewalk LLC enforceable against Cakewalk LLC in accordance
with its terms except as the enforceability hereof and thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization and other
similar laws of general application affecting creditors' rights generally
and by general principles of equity (whether such enforceability is
considered in a proceeding in equity or at law);
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h. The execution, delivery and performance of this Agreement by
Cakewalk LLC and all other agreements and instruments executed and
delivered or to be executed and delivered pursuant hereto and the
fulfillment of the terms hereof and thereof are legal and will not (i)
conflict with, or result in a breach of any of the provisions of, or
constitute a default under, any of the provisions of any indenture,
mortgage, deed of trust, contract, agreement, charter instrument, by-law
or other instrument to which Cakewalk LLC is a party or by which Cakewalk
LLC or Cakewalk LLC's property is bound, or (ii) result in the creation or
imposition of any lien upon any of the properties or Assets of Cakewalk
LLC pursuant to the terms of any such indenture, mortgage, deed of trust,
contract, agreement, charter instrument, by-law or other instrument;
i. There is no pending action, suit, proceeding or investigation,
including but not limited to any such proceeding or investigation
resulting from the ownership or use of any of the Assets, against or
affecting Cakewalk LLC before any court, administrative agency, arbitrator
or governmental body or, to the best knowledge of Cakewalk LLC any
threatened action or proceeding, including but not limited to any such
proceeding or investigation resulting from the ownership or use of any of
the Assets, against or affecting Cakewalk LLC before any of the foregoing
which, if decided adversely to Cakewalk LLC, would materially affect (i)
the condition (financial or otherwise), business, properties, prospects,
profits or operations of Cakewalk LLC, or (ii) the Company's ability to
enforce its interest in the Assets as contemplated hereunder. Cakewalk LLC
is not subject to any order of any court, governmental authority or agency
or arbitration board of tribunal;
j. No consent, approval, authorization, order of, or filing,
registration, qualification with any court or other governmental authority
in respect of Cakewalk LLC is necessary or required in connection with the
authorization, execution, delivery or performance by Cakewalk LLC of this
Agreement or any of the other documents or transactions contemplated
hereby;
k. Cakewalk LLC will comply in all material respects with all
requirements of law applicable to Cakewalk LLC relating to the performance
of its obligations under this Agreement;
l. Neither as a result of the transactions contemplated by this
Agreement nor immediately before or after any such transactions, will
Cakewalk LLC be insolvent or have unreasonably small capital for the
payment of his obligations. Both immediately before and after the sale of
the Assets contemplated by this Agreement: (a) the fair salable value of
Cakewalk LLC's Assets will be in excess of the amount that will be
required to pay Cakewalk LLC's
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probable liabilities as they then exist and as they become absolute and
matured; and (b) the sum of Cakewalk LLC's assets (valued at their fair
salable value), will be greater than the sum of such Cakewalk LLC's debts;
m. In the event that title to any Asset shall revert to Cakewalk
LLC, for whatever reason other than pursuant to the provisions of Section
10(b) hereof, Cakewalk LLC acknowledges that, notwithstanding such
transfer, the Company is entitled to receive in respect of such Assets,
amounts not less than the amounts it was entitled to receive had it
continued to hold title to such Asset, and Cakewalk LLC covenants to
distribute or cause the distribution of such amounts to the Company;
n. Cakewalk LLC will treat or will cause Cakewalk LLC's accountants
to treat the conveyance of the Assets hereunder as a contribution to the
capital of the Company and not as a secured loan for financial reporting
purposes or for federal, state and local income, property and sales tax
purposes. Any financial statements of Cakewalk LLC will contain adequate
disclosure that any creditors of Cakewalk LLC will have no direct interest
in the Assets;
o. At present and continuously since its formation, (i) the managers
of Cakewalk LLC have an office at 250 West 57th Street, New York, New York
10107, and (ii) Cakewalk LLC's chief executive office is at 250 West 57th
Street, New York, New York 10107; and
p. Each of the Warrant, Warrant Subscription Agreement, and the
Registration Rights Agreement has been duly authorized, executed and
delivered by Cakewalk LLC and constitutes a valid, legal and binding
agreement of Cakewalk LLC, and remains in full force and effect.
II. With respect to the Assets:
a. No right, title or interest in and to any Assets which have been
contributed pursuant to this Agreement shall revert at any time prior to
June 29, 2015, for any reason, to any person, firm or corporation other
than the Company;
b. Except for the Impositions on Rights, no liens (including
federal, state and local income tax liens), claims, demands, actions or
other encumbrances exist regarding any one (1) or more of the Assets by
any person, firm or corporation;
c. Each Master is original and is capable of copyright protection
throughout the world in accordance with applicable copyright law;
d. No monies or other contingent compensation shall be payable by
the Company after the Closing Date to any
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person, firm or corporation on exploitations of the Assets prior to the
Closing Date;
e. Except for the Impositions on Rights, Cakewalk LLC has not
pledged, hypothecated, transferred, conveyed, granted or assigned to any
person, firm or corporation other than the Company any Assets or any
right, title, interest or contingent interest in or to any Assets which
remains in full force and effect on the date hereof;
f. The execution and implementation of this Agreement shall not
result in the breach of any conditions or constitute a default (with or
without notice or the lapse of time, or both) under any license or
agreement constituting a portion of the Assets or to which any of the
Assets are subject. Neither Cakewalk LLC nor any person, firm or
corporation associated with or deriving rights through or from Cakewalk
LLC, is in breach or is in default of any applicable agreement
constituting a portion of the Assets or to which any of the Assets are
subject on the date of execution of this Agreement;
g. No advances or other charges heretofore made or received by
Cakewalk LLC in connection with the Assets remain recoupable at any time
from and after the Closing Date from any Gross Receipts earned at any time
before or after the date of this Agreement, except as listed on Exhibit C
attached hereto;
h. The Company's exercise of any of the rights, licenses, privileges
and properties regarding the Assets or the Company's right, title and
interest in and to the Assets, as of the Closing Date does not and shall
not violate or infringe on any common law or statutory rights of any
person, firm or corporation, including, without limitation, contractual
rights, copyrights, rights of privacy and rights of publicity, but is
subject, at all times, to the Impositions on Rights, and as of the Closing
Date comply with all applicable laws and regulations;
i. Except as required under any Impositions on Rights and as
otherwise expressly provided in this Agreement, the Company shall not be
required to account for or pay to any person, firm or corporation any
royalties or other consideration for entering into and executing this
Agreement or as an advance or as a recoupment of any advance, fee or loan
made in connection with or under a License or Royalty or Participation
Agreement. Moreover, without limiting the generality of the foregoing, the
Company shall not be required to account for and pay royalties on
exploitations of the Assets other than as may be required under or in
connection with the Transaction Documents and any Impositions on Rights;
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j. No filings with, notices to or licenses, permits, consents,
authorizations, qualifications, orders or other approvals of any court or
other governmental regulatory body or of any other person, firm,
corporation or other entity are necessary in connection with Cakewalk
LLC's entering into, executing and implementing this Agreement fully.
Without limiting the generality of the foregoing, Cakewalk LLC's
assignment and transfer of the Assets to the Company under this Agreement
are not subject to the provisions of the Uniform Commercial Code relating
to bulk transfers;
k. All of the information set forth in the exhibits and schedules
attached hereto is complete and accurate in all material respects. No
information supplied in writing by, or on behalf of, Cakewalk LLC in
connection with the transactions contemplated by this Agreement, in each
case as of the Closing Date, contains any untrue statement of a material
fact or omits a material fact necessary to make the statements contained
therein or herein not misleading. There is no fact peculiar to Cakewalk
LLC, any Asset conveyed by Cakewalk LLC hereunder or other Person which
Cakewalk LLC has not disclosed to the Company in writing which materially
affects adversely nor, so far as such Person, as applicable, can now
reasonably foresee, will materially affect adversely the financial
condition, affairs or prospects of, or the ability of, Cakewalk LLC to
perform the transactions contemplated by this Agreement;
l. All documents, materials and information included in the Assets
are accurate and complete and are in full force and effect in accordance
with the provisions thereof and shall not be subject to any reversion or
default as a result of this Agreement. No License is a Defaulted License.
Cakewalk LLC agrees to notify each licensee under a License to which
Cakewalk LLC is a party of the transfer hereunder promptly after the
Closing Date;
m. The Company's receipt or inspection of the Licenses and the
Royalty and Participation Agreements shall not constitute notice to the
Company of any default or defect in or limitation on the right of Cakewalk
LLC to enter into, execute or implement this Agreement fully or in any
right, title or interest acquired by the Company in or to the Assets
hereunder, and shall not limit, restrict or waive any warranties,
representations, covenants or agreements made by Cakewalk LLC in this
Agreement or any of the right, title or interest acquired by the Company
from Cakewalk LLC in and to the Assets; and
n. Except as listed in Exhibit A-2, with respect to each Contract
Asset, all required consents, assignment and/or assumption agreements or
notices, if any, have been obtained or delivered in the manner required by
such Contract Asset.
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Section 4. Conveyance. Effective on the Closing Date, Cakewalk LLC
hereby irrevocably transfers, contributes and assigns to the Company Cakewalk
LLC's ownership interest in and to all of the Assets, including, without
limitation, the following rights and interests, but subject, in all cases, to
the Impositions on Rights:
a. From and after the Closing Date, the sole and exclusive right
throughout the world and the universe to receive and collect any and all
Gross Receipts regardless of when earned and payable and accruing under
the Contract Assets before or after the date of this Agreement, that are
paid on or after the Closing Date;
b. The sole and exclusive right throughout the world and the
universe to possess, retain and exploit, in perpetuity, in any manner or
media, any and all other rights (including merchandising rights) now or
hereafter existing in all Assets; and
c. The sole and exclusive right to receive all proceeds of the
Contract Assets and to amend, modify, extend or terminate any of such
assets in the Company's own name.
Section 5. Procedures With Respect to Contract Assets. On the
Closing Date, Cakewalk LLC shall deliver to the Company a fully-executed,
original counterpart of each Contract Asset (or executed copy thereof) which it
is contributing hereunder, together with all amendments and modifications
thereto, which Cakewalk LLC hereby certifies to be true, complete and correct.
If any matter arising under any Contract Asset is in dispute between the parties
thereto, Cakewalk LLC shall also deliver to the Company a statement describing
the nature of such dispute and the status thereof as of the Closing Date.
Section 6. Contribution and the Membership Interests. In return for
the contribution of the Assets to the capital of the Company, Cakewalk LLC shall
receive (i) the Membership Interests identified in the Operating Agreement
allocable to Cakewalk LLC, and simultaneously with such issuance Cakewalk LLC
shall be admitted to the Company as a member, and (ii) cash equal to Cakewalk
LLC's pro rata share (in accordance with such Cakewalk LLC's Membership
Interests) of the proceeds of the issuance of securities under the Indenture
less (A) Cakewalk LLC's pro rata share of the amount of expenses relating to the
issuance of securities under the Indenture, and (B) Cakewalk LLC's pro rata
share of any reserves required to be established under the Indenture.
It is the express intent of the parties hereto that the
contributions set forth in this Section 6 be characterized as tax-free capital
contributions within the meaning of Section 721 of the Code, and that the
related cash distributions not be treated as part of a disguised sale of the
Assets to the Partnership, but rather be characterized, for tax purposes, as a
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borrowing against the Assets within the meaning of Sections 1.707-5(b) and
1.707-5(f) (Ex. 11) of the Treasury Regulations.
Section 7. Certificates and Opinions; Additional Documents and Power
of Attorney.
a. On the Closing Date and together with delivery of the Assets,
Cakewalk LLC shall deliver to the Company fully executed closing
certificates and opinions of counsel in form and substance reasonably
satisfactory to the Company.
b. Immediately after the Company's request therefor, Cakewalk LLC
shall execute and deliver to the Company any and all documents deemed
reasonably necessary or reasonably desirable by the Company to evidence or
effectuate the provisions or intent of this Agreement fully as well as any
forms specified under the Uniform Commercial Code or similar legal scheme
under applicable law requested by the Company. Specifically, without
limiting the generality of the foregoing, Cakewalk LLC shall, no later
than the Closing Date, execute and deliver to the Company the assignment
of rights attached hereto as Exhibit D and the letter of direction in
substantially the form attached hereto as Exhibit E.
c. Cakewalk LLC irrevocably constitutes, authorizes, empowers and
appoints the Company as Cakewalk LLC's true and lawful attorney (with full
power of substitution and delegation), in Cakewalk LLC's name and in
Cakewalk LLC's place and stead, or in the Company's name, to take such
action, and to make, execute, acknowledge and deliver any and all
instruments or documents which the Company at any time deems necessary or
desirable to vest in the Company, its successors and assigns, all of the
right, title and interest in and to the Assets which are granted to the
Company hereunder or which the Company from time to time deems necessary
or desirable to effectuate or evidence the provisions of this Agreement
fully. Such power being coupled with an interest is irrevocable.
d. On the Closing Date and together with delivery of the Assets,
Cakewalk LLC shall deliver to the Company a fully executed copy of a
letter of direction to the payor under the Licenses and Royalty or
Participation Agreements, as applicable, as set forth or described in
Exhibit E.
Section 8. Actions. The Company shall have the exclusive right to
take such action as it deems necessary, either in Cakewalk LLC's name, in the
Company's name or in both names, against any party to protect all rights and
interests acquired by the Company hereunder. Cakewalk LLC shall cooperate fully
with the Company in any controversy that may arise or litigation which may be
brought concerning the Company's rights and interests hereunder. The Company
shall have the right, in its discretion, to employ attorneys and to institute or
defend against any claim, demand, action or proceeding, whether for infringement
of
-8-
copyright or otherwise, and to take any other necessary steps to protect the
right, title and interest of the Company in and to each Asset and, in connection
therewith, to settle, compromise or in any other manner dispose of any such
claim, action or proceeding and to satisfy or collect on any judgment which may
be rendered.
Section 9. Withholding. The Company shall be entitled to deduct and
withhold taxes, deductions, charges or withholdings, and all liabilities with
respect thereto ("Withholding Taxes") from the amounts payable to Cakewalk LLC
hereunder (with any amount so deducted and withheld treated as a payment in
respect of the amounts due to Cakewalk LLC hereunder), but only if and to the
extent that such deduction or withholding is required by applicable law. The
Company shall make a good-faith estimate of the amount of Withholding Taxes that
are required by applicable law to be deducted and withheld from the amounts
described in Section 6, if any, and shall deduct, withhold and pay over such
amount of Withholding Taxes to the appropriate taxing authority in a timely
manner. The Company shall be entitled to deduct and withhold Withholding Taxes
from the amounts payable to the members hereunder.
Section 10. Indemnity.
a. Cakewalk LLC indemnifies, saves and holds the Company, its
successors and assigns, and its members and its and their respective
officers, fiduciaries, employees and agents, harmless from any and all
liability, claims, demands, loss and damage (including, without
limitation, reasonable attorneys' fees and court costs) arising from (i)
the fact that Cakewalk LLC shall have failed to perform Cakewalk LLC's
obligations hereunder as and when due or shall have failed to perform such
its obligations under an Asset conveyed hereunder, (ii) or the fact that
any representation or warranty made by Cakewalk LLC in this Agreement
proves to be or to have been false or materially incorrect, or (iii) any
liability of the Company for taxes, interest, penalties or additions to
tax in respect of any failure by the Company to deduct and withhold
Withholding Taxes. Cakewalk LLC shall reimburse the Company, on demand,
for any loss, cost, expense or damage to which the foregoing indemnity
applies. The Company shall notify Cakewalk LLC promptly of any claim,
demand or action covered by the Cakewalk LLC's foregoing indemnity, and if
appropriate, Cakewalk LLC shall have the right, at Cakewalk LLC's expense,
to participate in the defense of any such claim, demand or action with
counsel of Cakewalk LLC's choice.
b. The representations, warranties and covenants set forth in
Section 3 of this Agreement and in any instrument delivered pursuant to
this Agreement, with respect to each of the Assets conveyed hereunder,
shall survive the Closing and the consummation of the transactions
contemplated by this Agreement. Upon discovery by the Company or Cakewalk
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LLC that any of such representations or warranties was incorrect as of the
time made, the party making such discovery shall give prompt notice of
such discovery to the other. In the event any defect, misrepresentation or
omission with respect to any such Asset adversely affects the interests of
the Company, Cakewalk LLC shall eliminate or cure the circumstance or
condition causing the defect within 60 days of the earlier of Cakewalk
LLC's or the Company's discovery thereof or Cakewalk LLC's receipt of
notice thereof, or shall repurchase such Asset within ten (10) Business
Days after the expiration of such GO-day period at the applicable CP
Price. The Company shall direct Cakewalk LLC to pay such purchase price in
accordance with Section 12.3 of the Indenture and cause such asset to be
conveyed to Cakewalk LLC, or as they may direct pursuant to Section 12.3
of the Indenture. The Company hereby acknowledges and agrees that Cakewalk
LLC's purchase of any Asset as provided hereinabove shall constitute the
sole remedy of the Company with respect to any such defect,
misrepresentation or omission.
Section 11. Notices. The addresses of the Company and Cakewalk LLC
for all purposes of this Agreement are set forth below, until notice of a
different address is received by the party notified of that different address.
All notices from one party to the other party shall be sent to the other party's
address by certified or registered mail (return receipt requested) or by
facsimile transmission (or the equivalent transmission providing written
confirmation of receipt at the facsimile number of the addressee), all charges
prepaid. The date of mailing or transmittal by facsimile (or the equivalent
transmission providing written confirmation of receipt at the facsimile number
of the addressee) in accordance with the foregoing provision shall be the
effective date of notice, except for notices of a different address.
The Company Cakewalk LLC
----------- ------------
CAKEWALK BRE LLC Cakewalk LLC
250 West 57th Street 250 West 57th Street
New York, New York 10107 New York, New York 10107
Attn: Robert Miller Attn: Robert Miller
with a copy to: with a copy to:
Baer Marks & Upham LLP Baer Marks & Upham LLP
805 Third Avenue 805 Third Avenue
New York, New York 10022 New York, New York 10022
Attn: Michael Blumenthal, Esq. Attn: Michael Blumenthal, Esq.
Section 12. Entire Agreement. This Agreement supersedes any and all
prior negotiations, understandings and
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agreements between the parties hereto with respect to the subject matter hereof.
Each of the parties acknowledges and agrees that neither party has made any
representations or promises in connection with this Agreement or the subject
matter hereof not contained herein.
Section 13. Miscellaneous.
a. This Agreement may not be canceled, altered, modified, amended or
waived, in whole or in part, in any way, except by an instrument in
writing signed by the party sought to be bound. The waiver by either party
of any breach of this Agreement in any one (1) or more instances shall in
no way be construed as a waiver of any subsequent breach of this Agreement
(whether or not of a similar nature). If any part of this Agreement shall
be held to be void, invalid or unenforceable, it shall not affect the
validity of the balance of this Agreement unless essential to the intended
purpose of this Agreement;
b. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
NEW YORK AND ITS VALIDITY, CONSTRUCTION AND EFFECT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS WHOLLY
PERFORMED THEREIN. THE VENUE FOR ANY AMOUNT, SUIT OR PROCEEDING ARISING
FROM OR BASED UPON THIS AGREEMENT SHALL BE THE APPROPRIATE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK.
ACCORDINGLY, THE COMPANY AND CAKEWALK LLC AGREE THAT ANY ACTION, SUIT OR
PROCEEDING ARISING FROM OR BASED ON THIS AGREEMENT SHALL BE COMMENCED IN
AND DETERMINED BY THOSE APPROPRIATE STATE AND FEDERAL COURTS LOCATED IN
THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK; THE PARTIES HEREBY WAIVE
ANY OBJECTION TO THE PROPRIETY OR CONVENIENCE OF VENUE IN SUCH COURTS OR
TO THE JURISDICTION OF THE COURTS OVER EITHER PARTY AND AGREE THAT ANY
JUDGMENT ENTERED THEREIN MAY BE ENFORCED WITH NO FURTHER DEFENSE OR OFFSET
IN ANY JURISDICTION IN WHICH THE DEFENDANT IS A CITIZEN, RESIDES OR OWNS
PROPERTY;
c. This documentation of the Agreement shall not be binding upon the
Company until signed by an authorized signatory of the Company;
d. If any action, suit or proceeding arising from or based upon this
Agreement is commenced by either party hereto against the other, the
prevailing party shall be entitled to recover from the other party its
reasonable attorneys' fees in connection therewith in addition to the
other costs of that action, suit or proceeding;
e. The headings of paragraphs or other divisions hereof are inserted
only for the purpose of convenience and reference. Such headings shall not
be deemed to govern, limit, modify or in any other manner affect the
scope, meaning or intent of the provisions of this Agreement or any
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part thereof, and they shall not otherwise be given any legal effect;
f. No action taken pursuant to this Agreement, including, without
limitation, the execution hereof or any investigation or evaluation by or
on behalf of either of the Company or Cakewalk LLC, shall constitute a
waiver by the Company or Cakewalk LLC of compliance with any warranty,
representation, covenant or agreement set forth in this Agreement;
g. If one or more of the provisions of this Agreement shall be for
any reason whatever held invalid, such provisions shall be deemed
severable from the remaining covenants, agreements and provisions of this
Agreement and shall in no way affect the validity or enforceability of
such remaining provisions, the rights of any parties hereto. To the extent
permitted by law, the parties hereto hereby waive any provision of law
which renders any provision of this Agreement prohibited or unenforceable
in any respect;
h. All provisions of this Agreement shall be binding upon and inure
to the benefit of the respective successors and permitted assigns of the
parties hereto; and
i. This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 14. Assignment and Delegation.
a. The Company shall have the right to assign this Agreement or any
of the Company's rights or Assets hereunder, in whole or in part, to any
person, firm or entity.
b. Cakewalk LLC shall not assign any rights or delegate any
obligations of Cakewalk LLC hereunder. Cakewalk LLC acknowledges that the
rights of the Company hereunder will be assigned to the Lender under the
Indenture for the benefit of the holders of the Notes.
c. The rights and obligations provided in this Agreement shall inure
to the benefit of and be binding upon the permitted assigns of the Company
and successor(s)-in-interest to each of the Company and Cakewalk LLC.
Section 15. Recharacterization. It is the express intent of the
parties hereto that the conveyance of the Assets by Cakewalk LLC to the Company
be, and is treated as, a contribution to the capital of the Company. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge of the Assets by Cakewalk LLC to the Company to secure a debt or other
obligation of Cakewalk LLC. However, in the event that, notwithstanding the
intent of the parties, the Assets are held by
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a court to continue to be property of Cakewalk LLC and the distribution by the
Company of any portion of the proceeds of the Notes to Cakewalk LLC are held by
such court to represent a loan to Cakewalk LLC by the Company, then (a) this
Agreement shall also be deemed to be a security agreement within the meaning of
the applicable Uniform Commercial Code; and (b) the transfer of the Assets
provided for herein shall be deemed to be a grant by Cakewalk LLC to the Company
of, and Cakewalk LLC does hereby grant to the Company a security interest in all
of Cakewalk LLC's right, title and interest in and to the Assets and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property. Any assignment of the interest
of the Company shall also be deemed to be an assignment of any security interest
created hereby. Cakewalk LLC and the Company shall, to the extent consistent
with this Agreement, take such actions as may be necessary, including, without
limitation, filing all applicable UCC financing statements without need of
signatures of the parties to the extent allowed by law, to ensure that, if this
Agreement is deemed to create a security interest in the Assets, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such through the term of this
Agreement.
Section 16. Nonpetition Covenant. None of the parties hereto shall
petition or otherwise invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Company under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Company or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Company.
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IN WITNESS WHEREOF, the Company and Cakewalk LLC have executed this
Agreement the day and year first above written.
CAKEWALK LLC
By: /s/ Robert Miller
----------------------------------
Name: Robert Miller
Title: Manager
CAKEWALK BRE LLC
By: /s/ Robert Miller
----------------------------------
Name: Robert Miller
Title: Chief Executive Officer
and President
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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This ‘10KSB’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
| | 6/29/15 | | 7 |
| | 4/17/00 |
Filed on: | | 4/14/00 |
For Period End: | | 12/31/99 | | | | | | | NT 10-K |
| | 6/29/99 | | 1 | | 4 |
| | 6/4/99 | | 4 |
| List all Filings |
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