Document/Exhibit Description Pages Size
1: 10-K International Microcomputer Software, Inc. 82 450K
2: EX-10.1 Material Contract 12 55K
11: EX-10.10 Material Contract 2 14K
12: EX-10.11 Material Contract 2± 11K
13: EX-10.12 Material Contract 1 9K
14: EX-10.13 Material Contract 4 22K
15: EX-10.14 Material Contract 4 21K
16: EX-10.15 Material Contract 3 16K
17: EX-10.16 Material Contract 5 26K
18: EX-10.17 Material Contract 2 12K
3: EX-10.2 Material Contract 16 75K
4: EX-10.3 Material Contract 1 10K
5: EX-10.4 Material Contract 5 27K
6: EX-10.5 Material Contract 12 52K
7: EX-10.6 Material Contract 2 15K
8: EX-10.7 Material Contract 4 20K
9: EX-10.8 Material Contract 6 34K
10: EX-10.9 Material Contract 2± 13K
19: EX-21.1 Subsidiaries of the Registrant 1 6K
20: EX-23.1 Consent of Experts or Counsel 1 8K
EXHIBIT 10.4
PROMISSORY NOTE
(Fixed Rate)
$1,200,000.00 October 9, 2001
Santa Clara, California
FOR VALUE RECEIVED, the undersigned, INTERNATIONAL MICROCOMPUTER SOFTWARE, INC.,
a California corporation ("Borrower"), promises to pay to SILICON VALLEY BANK, a
California banking corporation ("Lender"), or order, at its office at 3003
Tasman Avenue, Santa Clara, California, 95054 or at such other place as Lender
from time-to-time designates in writing, in lawful money of the United States of
America, the principal amount of ONE MILLION TWO HUNDRED THOUSAND AND NO/lOOTHS
DOLLARS ($1,200,000.00), together with interest on the unpaid principal amount
hereof from the date hereof, at the Applicable Rate provided below.
This Note is being delivered pursuant to the terms of a Restructure Agreement of
even date herewith executed by Lender, Borrower, and by other parties as
specified therein. The Restructure Agreement modifies the terms of that certain
Loan and Security Agreement ("Loan Agreement") dated November 3, 1999 executed
by Borrower and Lender.
Payment. Borrower will pay this loan in 12 principal payments of One Hundred
Thousand Dollars ($100,000) each. Borrower's first principal payment is due on
the last date of the month on which this Note is executed ("Initial Payment
Date"), and all subsequent principal payments are due on the same day of each
month after that. In addition, Borrower will pay regular monthly payments of all
accrued unpaid interest due as of each payment date, beginning on the Initial
Payment Date, with all subsequent interest payments to be due on the same day of
each month after that. Borrower's final payment will be due twelve months from
the date on which this Note is executed, and will be for all principal and all
accrued interest not yet paid. Unless otherwise agreed or required by applicable
law, payments will be applied first to any unpaid collection costs (including
without limitation attorneys fees) and any late charges, then to any unpaid
interest, and any remaining amount to principal. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing.
Interest.
Rate. The interest rate to be applied to the unpaid principal balance of this
Note will be at a rate of Twelve Percent (12%) per annum from the date hereof.
Computation. The annual interest rate for this Note is computed on a 365/360
basis; that is, by applying the ratio of the annual interest rate over a year of
360 days, multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding.
Prepayment. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments of less than the full amount owing under
this Note will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments under the payment schedule.
Rather, early payments will reduce the principal balance due and may result in
Borrower's making fewer payments. Borrower agrees not to send Lender payments
marked "paid in full", "without recourse", or similar language. If Borrower
sends such a payment, Lender may accept it without losing any of Lender's rights
under this Note, and Borrower will remain obligated to pay any further amount
owed to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is tendered with other
conditions or limitations or as full satisfaction of a disputed amount must be
mailed or delivered to Lender as specified below.
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Late Charge. If a payment is 5 days or more late Borrower will be charged 5.000%
of the unpaid portion of the regularly scheduled payment.
Interest After Default. Upon default, including failure to pay upon final
maturity, at Lender's option, and if permitted by applicable law, Lender may
add any unpaid accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Note (including any increased
rate). Upon Borrower's failure to pay all amounts declared due pursuant to this
section, Lender, at its option, may, if permitted under applicable law, increase
the variable interest rate on this Note to six percentage points over the Rate
specified above.
Default. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Note, in the Restructure
Agreement in the Loan Agreement or in any of the related documents or to comply
with or to perform any term, obligation, covenant or condition contained in any
other agreement between Lender and Borrower; or if an event of default occurs
thereunder.
Guaranty. The revocation or termination of any guaranty of this Note or of the
Loan Agreement.
False Statements. Any warranty, representation or statement made or furnished to
Lender by Borrower or on Borrower's behalf under this Note or the related
documents is false or misleading in any material respect, either now or at the
time made or furnished or becomes false or misleading at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a going
business, the insolvency of borrower, the appointment of a receiver for any part
of Borrower's property, any assignment for the benefit of creditors, any type of
creditor workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower or by any governmental agency against
any collateral securing the loan. This includes a garnishment of any of
Borrower's accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by Borrower as
to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Borrower gives Lender written notice of
the creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount determined
by Lender, in its sole discretion, as being an adequate reserve or bond for the
dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to
any Guarantor of any of the indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
guaranty of the indebtedness.
Change in Ownership. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower except for the Merger Transaction referred
to in the Restructure Agreement.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of this
Note is impaired.
Lender's Rights. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due and
payable. In addition Lender may enforce its rights under the Loan Agreement and
under any guaranty thereof or hereof.
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Attorneys' Fees; Expenses. Borrower agrees to pay all fees and costs including
without limitation attorneys' fees and costs which may be incurred by Lender in
connection with or related to the enforcement of this Note and Lender's rights
hereunder whether or not legal action is commenced. In the event of any action
to enforce this Note and Lender's rights hereunder (whether in state, federal or
Bankruptcy Court) Borrower agrees to pay all expenses incurred by Lender
including without limitation attorneys' fees and costs.
Collateral. Borrower acknowledges this Note is secured by (i) the terms of the
Loan Agreement, (ii) the terms of an Intellectual Property Security Agreement
executed by Borrower dated November 3, 1999, and (iii) the terms of a Pledge
Agreement executed by Borrower.
Guaranty. Borrower acknowledges that this Note is guaranteed by a Limited
Guaranty executed by ArtToday.com, Inc.
Notices. Any notice, demand or request required hereunder shall be given in
writing (at the addresses set forth below) by any of the following means: (a)
personal service; (b) electronic communication, whether by telex, telegram or
telecopying; (c) overnight courier; or (d) registered or certified, first class
U.S. mail, return receipt requested.
To Borrower: To Bank:
International Microcomputer Software, Inc. Silicon Valley Bank
75 Rowland Way 3003 Tasman Drive
Novato, California 94945 Santa Clara, California 95054
Attn: Geoffrey Koblick, President Attn:
Fax: (415) 897-2544 Fax: (408)
Such addresses may be changed by notice to the other parties given in the same
manner as above provided. Any notice, demand or request sent pursuant to either
subsection (a) or (b), above, shall be deemed received upon such personal
service or upon dispatch by electronic means. Any notice, demand or request sent
pursuant to subsection (c), above, shall be deemed received on the business day
immediately following deposit with the overnight courier, and, if sent pursuant
to subsection (d), above, shall be deemed received forty-eight (48) hours
following deposit into the U.S. mail.
No electronic record or electronic signature (other than a telex or telecopy)
shall be deemed to be a writing so as to satisfy any requirement under this Note
that any agreement, waiver, notice or other instrument under or pursuant hereto
be in writing.
Miscellaneous.
Headings; Gender. The headings of the paragraphs of this Note are inserted for
convenience only and shall not be deemed to constitute a part hereof. All words
and phrases shall be taken to include the singular or plural number, and the
masculine, feminine or neuter gender, as may fit the case.
Waiver.
Borrower for itself and for its successors, personal representatives, heirs and
assigns, all guarantors, endorsers and signers, and their respective successors,
personal representatives, heirs and assigns (collectively the "Obligated
Parties"), hereby waives all valuation and appraisement privileges, presentment
and demand for payment, protest, notice of protest and nonpayment, dishonor and
notice of
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dishonor, bringing of suit, lack of diligence or delays in collection or
enforcement of this Note and notice of the intention to accelerate.
Borrower for itself and the other Obligated Parties agrees that it shall remain
obligated notwithstanding the release of any party liable, the release of any
security for debt, the taking of any additional security and any other
indulgence or forbearance.
Borrower for itself and the other Obligated Parties agrees (i) that this Note
and any or all payments coming due hereunder may be extended or renewed from
time-to-time without in any way affecting or diminishing its liability hereunder
and (ii) that the Note may be modified without the consent of or notice to
anyone other than the party with whom the modification is made.
Severability. If any provision of this Note or any payments pursuant to the
terms hereof shall be invalid or unenforceable to any extent, the remainder of
this Note and any other payments hereunder shall not be affected thereby and
shall be enforceable to the greatest extent permitted by law.
No Waiver. No failure or delay by Lender or its assigns in exercising any right,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
Assignability. This Note shall be binding upon Borrower and Borrower's
representatives, successors and assigns and shall inure to the benefit of
Lender, its successors and assigns, and their successors and assigns and
respective personal representatives, successors and assigns according to the
context hereof, except that Borrower shall not have the right to assign the
obligations contained in this Note. Notice is hereby waived with respect to any
such assignment.
Joint and Several Obligations. If this Note is executed by more than one person
or entity as Borrower, the obligations of each such person or entity shall be
joint and several. If Borrower is a partnership, all general partners of
Borrower, whether or not signatory hereto, shall be directly and personally
liable hereunder, jointly and severally. This Note is executed with full
recourse to all assets of each person or entity constituting Borrower or, if
Borrower is a partnership, each person or entity which is a general partner of
Borrower. No such person shall be a mere accommodation maker, and each such
person shall be primarily and directly liable hereunder.
Governing Law and Venue. This Note shall be governed by and construed under the
laws of the State of California. Jurisdiction and venue shall be appropriate in
any state court within the City and County of San Francisco, State of
California, or the County of Santa Clara, State of California, or the federal
courts located in the Northern District of California, at Lender's election.
Borrower waives any right Borrower may have to assert the doctrine of forum
non-conveniens or to object to such venue and hereby consents to the
jurisdiction of such courts and to any court-ordered relief.
115
Time. Time is of the essence of this Note and each provision hereof. Whenever in
this Note the term "day" is used, it means a calendar day, unless the term
"business day" is used, in which case the term "business day" shall mean a day
on which Lender is open for its usual banking business, other than a Saturday or
Sunday.
WAIVER OF JURY TRIAL. BORROWER HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS NOTE, OR THE VALIDITY, PROTECTION,
INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF, OR ANY OTHER CLAIM OR DISPUTE
HOWSOEVER ARISING (INCLUDING TORT AND CLAIMS FOR BREACH OF DUTY), BY BORROWER.
[The remainder of this page left intentionally blank.]
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note as of
the date and year first above written.
BORROWER:
INTERNATIONAL MICROCOMPUTER SOFTWARE, INC.
a California corporation
By: /s/ MARTIN WADE III
-------------------------------------
Its: CEO
-------------------------------------
By:
-------------------------------------
Its:
-------------------------------------
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 10/15/01 |
| | 10/9/01 | | 1 |
| For Period End: | | 6/30/01 | | | | | | | NT 10-K |
| | 11/3/99 | | 1 | | 3 |
| List all Filings |
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