Unassociated Document


    
      EXHIBIT
        NO#

      


      


      


      


      


      


      


      


      


      


      LOAN
        SALE AGREEMENT

      


      


      


      Dated
        and
        Effective as of January 31, 2005

      


      by
        and
        between

      


      International
        Microcomputer Software, Inc.,

      


      


      SELLER,

      


      


      


       and

      


      


      


      Mag
        Multi
        Corp.,

      


      BUYER

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      LOAN
        SALE AGREEMENT

      


      THIS
        LOAN
        SALE AGREEMENT ("Agreement "), is made and entered into as of the 31st
        day of
        January 2005, by and between International Microcomputer Systems, Inc.
        ("Seller"), a California corporation, having an address of 100 Rowland Way,
        Novato, CA, and Mag Multi Corp. ("Buyer"), a New York corporation, having
        an
        address of 15 Point Road, Bellport, New York.

      


       RECITALS

      


      A.  Seller
        is
        the owner of and wishes to sell the Loan (as defined in Article 1 below)
        on the
        terms
        and subject to the conditions set forth herein.

      


      B.  Buyer
        wishes to purchase the Loan, on the terms and subject to the conditions set
        forth herein.

      


       AGREEMENT

      


      NOW,
        THEREFORE,
        in
        consideration of the mutual promises herein set forth and other valuable
        consideration, the receipt and sufficiency of which are hereby acknowledged,
        Seller and Buyer agree as follows:

      


       ARTICLE
        1

      DEFINITIONS

      


      For
        purposes of this Agreement, the following terms shall have the meanings
        indicated:

      


      Section
        1.1  “Agreement”
        means
        this Loan Sale Agreement, including all Exhibits and Schedules
        hereto.

      


      Section
        1.2  “Assigned
        Rights”
        means
        all right, title and interest in, to and under the Loan and the Loan Documents,
        including, without limitation, all rights to principal, interest, fees, costs
        and expenses payable thereunder commencing as of the Closing Date and all
        other
        rights and claims thereunder.

      


      Section
        1.3  “Assignment
        of Assigned Rights”
        means
        the document to be delivered on the Closing
        Date by Buyer and Seller, the form of which is attached hereto as Exhibit
        A,
        whereby
        Seller assigns to Buyer, and Buyer accepts from Seller, the Assigned Rights.
        

      


      Section
        1.4  “Business
        Day”
        means
        any day on which Seller is open for business other than a Saturday, a Sunday
        or
        a state or Federal holiday in the State of New York.

      


      Section
        1.5  "Closing"
        means
        the
        occurrence of all acts required by this Agreement to assign and transfer
        the
        Assigned Rights from Seller to Buyer and for Buyer to accept and assume the
        Assigned Rights from Seller. 

      


      Section
        1.6  “Closing
        Date”
        means
        January 31, 2005, or such other date upon which Buyer and Seller may mutually
        agree.

       

      Section
        1.7  “Closing
        Documents”
        means
        all documents described herein that are required to be delivered at the Closing
        by Seller or Buyer.

      


      Section
        1.8  “Collateral”
        means,
        as the case may be, the real and personal property, guaranty, pledge and/or
        other property securing the Loan Note as described in the Loan
        Documents.

      


      Section
        1.9  “Collateral
        Document”
        means,
        as the case may be, the deed of trust, mortgage, security agreement, UCC
        financing statements, guaranty, surety, letter of credit, pledge, certificate,
        loan agreement and/or other instruments creating a security interest in,
        and/or
        a lien, interest or encumbrance upon or in any of the Collateral.

      


      Section
        1.10  “Loan”
        means
        (a) the obligation evidenced by the Loan Note, the Loan Documents and/or
        any
        amendment thereto; (b) all rights, powers, liens or security interests of
        Seller
        in or under any Collateral Document; and (c) any judgments founded upon the
        Loan
        Note or any other Loan Document, to the extent attributable thereto, or
        any lien
        arising therefrom.

      


      
        
          
          

        

        
          -2-

          
            

          

        

        
          
          

        

      

      Section
        1.11  “Loan
        Documents"
        means
        all of the agreements, certificates, legal opinions or other documents related
        to, or evidencing, the Loan, as obtained at the time of its origination and
        any
        subsequent modification, including, but not limited to, the Loan Note, the
        Collateral Documents, loan agreements, appraisals, guarantees, insurance
        certificates, borrower estoppel certifications and credit reports. 

      


      Section
        1.12  “Loan
        Files”
        means
        all documents, the Loan Note and the Collateral Documents, in the possession
        of
        Seller pertaining to the Loan.

      


      Section
        1.13 “Loan
        Note”
        means
        that certain 15% Promissory Note dated September 18, 2003 evidencing an
        indebtedness of the principal sum of $350,000.00 executed by Digital Creative
        Development Corporation (“DCDC”), as payor, in favor of Seller, as payee, as
        amended by that certain Amendment #1 to15% Promissory Note made as of September
        18, 2004 executed by DCDC and Seller.

      


      Section
        1.14  “Obligor”
        means
        Digital Creative Development Corporation, and any other person or entity
        obligated for the Loan.

      


      Section
        1.15  “Purchase
        Price”
        means
        the sum of Three Hundred Forty-Three Thousand Four Hundred Six Dollars and
        25/100 ($343,406.25).

      


      ARTICLE
        2

      PURCHASE
        AND SALE OF THE ASSIGNED RIGHTS

      


      Section
        2.1 Agreement
        to Sell and Purchase Assigned Rights.
        On the
        Closing Date, Seller agrees to sell, transfer and assign, and Buyer agrees
        to
        purchase the Assigned Rights. 

      


      Section
        2.2 Assignment
        of Assigned Rights.
        On the
        Closing Date, Seller and Buyer shall each execute and deliver to each other
        an
        Assignment of Assigned Rights in the form of Exhibit
        A
        hereto,
        executed by an authorized representative of Seller and Buyer, which Assignment
        of Assigned Rights shall sell, transfer, assign, set-over, convey and delegate
        to Buyer the Assigned Rights.

       

      Section
        2.3 Consideration
        for Assigned Rights.
        As
        consideration for the transfers and assignments hereunder by Seller, Buyer
        shall
        pay the Purchase Price to Seller. 

      


      ARTICLE
        3

      REPRESENTATIONS,
        WARRANTIES AND COVENANTS OF BUYER

       

      Buyer
        hereby represents, warrants and covenants as of the date hereof and as of
        the
        Closing Date that:

      


      Section
        3.1  Authorization
        and Compliance.
        Buyer
        is duly and legally authorized to enter into this Agreement and has complied
        with all laws, rules, regulations, charter provisions and bylaws to which
        it may
        be subject, and that the undersigned representative is authorized to act
        on
        behalf of and bind Buyer to the terms of this Agreement.

      


      Section
        3.2 Binding
        Obligation of Buyer.
        Assuming due authorization, execution and delivery by each other party hereto,
        this Agreement and all of the obligations of Buyer hereunder are the legal,
        valid and binding obligations of Buyer, enforceable in accordance with the
        terms
        of this Agreement, except as such enforcement may be limited by bankruptcy,
        insolvency, reorganization or other similar laws affecting the enforcement
        of
        creditors' rights generally and by general equity principles (regardless
        of
        whether such enforcement is considered in a proceeding in equity or at
        law).

       

      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

      

      ARTICLE
        4

      REPRESENTATIONS
        AND WARRANTIES OF SELLER

      


      Section
        4.1 Authorization
        and Compliance.
        Seller
        is duly and legally authorized to enter into this Agreement and has complied
        with all laws, rules, regulations, charter provisions and bylaws to which
        it may
        be subject, and that the undersigned representative is authorized to act
        on
        behalf of and bind Seller to the terms of this Agreement.

      


      Section
        4.2 Binding
        Obligation of Seller.
        Assuming due authorization, execution and delivery by each
        other party hereto, this Agreement and all of the obligations of Seller
        hereunder are the legal, valid and binding obligations of Seller enforceable
        in
        accordance with the terms of this Agreement, except as such enforcement may
        be
        limited by bankruptcy, insolvency, reorganization or other similar laws
        affecting the enforcement of creditors' rights generally and by general equity
        principles (regardless of whether such enforcement is considered in a proceeding
        in equity or at law). 

      


      Section
        4.3 Seller
        is
        the owner and holder of the Loan Documents and has not previously granted,
        assigned, pledged or transferred the Assigned Rights, and there are no
        outstanding agreements to sell the Assigned Rights to which Seller is a party,
        nor rights of first refusal to purchase the Assigned Rights.

      


      Section
        4.4 Seller hereby represents that the outstanding principal balance of the
        Loan
        is $325,000.00, as of the date hereof, and that the accrued interest thereon
        is
        $18,406.25, as of the date hereof, and that DCDC, the payor under the Loan
        Note,
        has no defense, set-off or claim against said indebtedness.

      


      ARTICLE
        5

      CONDITIONS
        PRECEDENT

      


      Section
        5. 1  Notwithstanding
        anything in this Agreement to the contrary, Buyer's obligation to purchase
        the
        Assigned Rights and Obligations shall be subject to and contingent upon the
        satisfaction of each of the following conditions precedent, prior to or on
        the
        Closing Date:

      


      (a)
        All
        Closing Documents necessary to consummate the transactions contemplated in
        this
        Agreement shall have been executed and delivered by Seller and Buyer as required
        by this Agreement.

      


      (b)
        Neither Buyer nor Seller shall have terminated this Agreement pursuant to
        the
        terms of this Agreement.

      


      (c)
        Seller’s
        delivery to Buyer of a certificate executed and delivered by DCDC to Seller
        confirming DCDC’s
        unqualified consent to Seller’s
        assignment of (i) the Loan Note, as amended; (ii) the Pledge and Security
        Agreement dated as of September 18, 2003 by and between DCDC, as Pledgor,
        and
        Seller, as second party; (iii) Assignment Separate From Certificate dated
        September 18, 2004, executed by DCDC in favor of Seller, with respect to
        400,000
        shares of the Common Stock of Seller represented by Certificate No. MS 14780
        (the “IMSI
        Shares”);
        (iv)
        Assignment of UCC-1 Statement granted by DCDC in favor of Seller respecting
        (a)
        the IMSI Shares and (b) the Certificates representing the IMSI Shares, together
        with executed blank stock powers; (v) Assignment Separate From Certificate
        dated
        September 18, 2004, executed by DCDC in favor of Seller with respect to 304,250
        shares of the Preferred Stock of Access Propeller Holdings, Inc. represented
        by
        Certificate No. PA-4 (the “APHI
        Shares”);
        and
        (vi) Assignment of the UCC-1 Statement granted by DCDC in favor of Seller
        respecting (a) the APHI Shares, and (b) the Certificates representing the
        APHI
        Shares, together with executed blank stock powers.

      


      
        
          
          

        

        
          -4-

          
            

          

        

        
          
          

        

      

      (d)
        Seller’s
        delivery to Buyer of an opinion of counsel of IMSI satisfactory to Seller
        as
        required by Section 7 of the Loan Note.

      


      Section
        5.2 Failure
        or Waiver of Conditions Precedent.
        In the
        event any of the

      conditions
        set forth in Section
        5.1 do
        not
        occur as of the Closing Date, or have not been waived in writing by Buyer
        or
        Seller, respectively, the party for whose benefit the failed condition exists
        may terminate this Agreement by written notice to the other party, and neither
        party shall have any further obligation to the other, other than as a result
        of
        a breach by Seller or Buyer as the case may be, or as stated in this
        Agreement.

      


      ARTICLE
        6

      CLOSING

      


      Section
        6.1 Closing.
        The
        Closing shall occur on the Closing Date and, upon the agreement of Seller
        and
        Buyer, shall be conducted either by mail or in person at the place designated
        by
        Buyer and reasonably acceptable to Seller.

      


      Section
        6.2 Deliveries
        by Seller.
        At
        Closing, Seller shall deliver to Buyer the following:

       

      (a)   a
        counterpart Assignment and Assumption of Assigned Rights, executed by
        Seller;

       

      (b)  
        UCC-3
        assignment statements executed by Seller assigning Seller's security interests
        in the Collateral created pursuant to the UCC-1 statements executed by DCDC
        in
        favor of Seller;

      


      (c)
        the
        original Loan Note endorsed to the order of Buyer, together with an allonge
        therefor;

      


      (d)
        Assignment of the Pledge and Security Agreement dated as of September 18,
        2003
        by and between DCDC, as pledgor, and Seller, as second party;

      


      (e)
        Assignment of Assignment Separate From Certificate with respect to the ISMI
        Shares;

      


      (f)
        Assignment of Assignment Separate from Certificate with respect to the APHI
        Shares;

      


      (g)
        Certificates representing the ISMI Shares;

      


      (h)
        Certificates representing the APHI Shares; and

       

      (i)
        the
        documents set forth in Section 5.1 above, if not previously provided to
        Buyer.

      


      
        
          
          

        

        
          -5-

          
            

          

        

        
          
          

        

      

      Section
        6.3 Delivery
        of Collateral Documents
        Seller
        agrees to make available to Buyer at Buyer’s
        place
        of business on the Closing Date each original Collateral Document in Seller's
        possession affecting the Loans, together with copies of the contents of the
        Loan
        Files.

      


      Section
        6.4 Closing
        Costs.
        Seller
        and Buyer shall each pay the fees and expenses of their respective legal
        counsel
        incurred in connection with this transaction. On the Closing Date, Buyer
        shall
        deposit with the Seller, by wire transfer of immediately available funds,
        the
        Purchase Price.

      


      ARTICLE
        7

      BREACH
        OF THE AGREEMENT

      


      Section
        7.1  Seller's
        Breach.
        If
        Seller breaches this Agreement, and Buyer does not close the transactions
        contemplated hereunder
        or such breach is discovered after Closing, Seller shall be allowed a reasonable
        opportunity to cure the breach. If the breach cannot be cured Buyer may,
        at
        Buyer's option, pursue all of Buyer's rights and remedies that Buyer may
        have
        under this Agreement and at law and/or in equity, and Buyer shall be entitled
        to
        a return of the Deposit. 

      


      Section
        7.2 Buyer's
        Breach.
        If
        Buyer defaults under this Agreement, Seller's sole and exclusive remedy at
        law
        shall be to terminate this Agreement.

      


      Section
        7.3 Survival.
        The
        parties agree that Seller's and Buyer's warranties and representations contained
        in this Agreement and in any document
        (including any certificate) executed pursuant to this Agreement shall survive
        the Closing.

       

      ARTICLE
        8

      NOTICES

      


      Unless
        otherwise provided for herein, all notices and other communications required
        or
        permitted hereunder shall be in writing (including a writing delivered by
        facsimile transmission and simultaneously sent by regular mail) and shall
        be
        deemed to have been duly given (a) when delivered, if sent by registered
        or
        certified mail (return receipt requested), (b) when delivered, if delivered
        personally or by facsimile or (c) on the second following Business Day, if
        sent
        by overnight mail or overnight courier, in each case to the parties at the
        following addresses (or at such other addresses as shall be specified by
        like
        notice):

       

      
        	If
                to the Buyer:	Mag
                Multi Corp.
	 	805
                Third Avenue
	 	26th
                Floor
	 	New
                York, New York 10022
	 	Attention:
                James G. Goren
	 	Fax
                No. 212-888-1732
	 	 
	with
                a copy to: 	Goldberg
                Weprin & Ustin LLP
	 	1501
                Broadway, 22nd
                Floor
	 	New
                York, New York 10036
	 	Attention:
                Kenneth P. Horowitz, Esq.
	 	Fax
                No. 212-221-6532
	 	 
	 	
                -
                  and -

              
	 	 
	 	
                Mandel
                  & Mandel

              
	 	555
                West 57th Street
	 	Suite
                1325
	 	New
                York, New York 10019
	 	Attention:
                Arnold Mandel, Esq.
	 	Fax
                No. 212-459-2896
	 	 
	If
                to the Seller: 	International
                Microcomputer Software, Inc.
	 	100
                Rowland Way
	 	Suite
                300
	 	Novato,
                CA 94945
	 	Attention:
                Mr. Bill Bush
	 	Fax
                No. 415-897-2544
	 	 
	 	
                -
                  and -

              
	 	 
	 	Niesar
                & Diamond
	 	90
                New Montgomery Street
	 	9th
                Floor
	 	San
                Francisco, Ca 94104
	 	Attention:
                Gerry Niesar
	 	Fax
                no. (415) 882 - 5400
	 	 
	with
                a copy to:	_______________________________
	 	 


      

       

      


      
        
          
          

        

        
          -6-

          
            

          

        

        
          
          

        

      

      ARTICLE
        9

      MISCELLANEOUS
        PROVISIONS


      Section
        9.1  Severability.
        Each
        part of this Agreement is intended to be severable. If any term, covenant,
        condition or provision hereof is unlawful, invalid, or unenforceable for
        any
        reason whatsoever, and such illegality, invalidity, or unenforceability does
        not
        affect the remaining parts of this Agreement, then all such remaining parts
        hereof shall be valid and enforceable and have full force and effect as if
        the
        invalid or unenforceable part had not been included.

      


      Section
        9.2  Rights
        Cumulative; Waivers.
        The
        rights of each of the parties under this Agreement are cumulative and may
        be
        exercised as often as any party considers appropriate. The right of each
        of the
        parties hereunder shall not be capable of being waived or varied otherwise
        than
        by an express waiver or variation in writing. Any failure to exercise or
        any
        delay in exercising any of such rights shall not operate as a waiver or
        variation of that or any other such right. Any defective or partial exercise
        of
        any of such right shall not preclude any other or further exercise of that
        or
        any other such right. No act or course of conduct or negotiation on the part
        of
        any party shall in any way preclude such party from exercising any such right
        or
        constitute suspension or any variation of any such right.

      


      Section
        9.3  Headings.
        The
        headings of the Articles and Sections contained in this Agreement are inserted
        for convenience only and shall not affect the meaning or interpretation of
        this
        Agreement or any provision hereof.

      


      Section
        9.4  Construction.
        Unless
        the context otherwise requires, singular nouns and pronouns, when used herein,
        shall be deemed to include the plural of such noun or pronoun and a pronoun
        of
        one gender shall be deemed to include the equivalent pronoun of the other
        gender.

      


      Section
        9.5  Prior
        Understandings.
        This
        Agreement supersedes any and all prior discussions and agreements between
        Seller
        and Buyer with respect to the purchase of the Loans and other matters contained
        herein, and this Agreement contains the sole and entire understanding between
        the parties hereto with respect to the transactions contemplated
        herein.

      


      Section
        9.6  Integrated
        Agreement.
        This
        Agreement and all Schedules and Exhibits hereto constitute the final complete
        expression of the intent and understanding of Buyer and Seller. This Agreement
        shall not be altered or modified except by a subsequent 'writing, signed
        by
        Buyer and Seller.

      


      Section
        9.7 Counterparts.
        This
        Agreement may be executed by fax (if promptly followed by the original) and
        in
        any number of counterparts, each of which shall constitute one and the same
        instrument, and either party hereto may execute this Agreement by signing
        any
        such counterpart.

      


      Section
        9.8  Survival.
        Each
        and every covenant hereinabove made by the parties to this Agreement shall
        survive the Closing, and shall not merge into the Closing Documents, but
        instead
        shall he independently enforceable for such period.

      


      Section
        9.9  Governing
        Law.
        This
        Agreement shall be construed, and the rights and obligations of the Seller
        and
        the Buyer hereunder determined, in accordance with the law of the State of
        New
        York.

      


      Section
        9.10  Expenses.
        Except
        as expressly set forth to the contrary in this Agreement, each party hereto
        shall be responsible for and bear all of its own respective expenses, including
        without limitation, expenses of legal counsel, accountants, and other advisors,
        incurred at any time in connection with pursuing or consummating this Agreement
        and the transactions contemplated thereby.

      



      
        
          
          

        

        
          -7-

          
            

          

        

        
          
          

          
          

        

      

      Section
        9.11  Brokers.
        Each
        party to this Agreement represents and warrants to the other that, in connection
        with the sale and purchase of the Loan, the party so representing and warranting
        has not dealt with any broker, agent or finder, and there is no commission,
        charge or other compensation due on account thereof. Buyer and Seller shall
        indemnify and hold each other harmless against and from any inaccuracy in
        such
        representation. The rights, obligations, warranties and representations of
        the
        parties hereto under the provisions of this Section
        9.11
        survive
        Closing or any termination of this Agreement before Closing.

      


      Section
        9.12 Further
        Assurances.
        Each
        party shall provide to the other party such other information regarding the
        Loans or the Collateral as the other party may reasonably request, and each
        party shall execute and deliver such other documents, deliver such other
        items
        and take such other actions as may be reasonably requested to allow the
        completion and consummation (or termination, as appropriate) of all tasks
        and
        the transactions contemplated by this Agreement.

      


      IN
        WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
        date
        first above written.

      


      BUYER:  
        Mag Multi Corp.

       

       

      By:

      
        
          

        

      

      Name:

      
        

      

      Title:

      
        

         

      


      


      SELLER:  
        International Microcomputer Software, Inc.

       

       

      By:

      
        
          

        

        Name:

        
          
            

          

        

        Title:

        
          
            

          

        

      

      


       

      
        
          
          

        

        
          -8-

          
            

          

        

        
          
          

          
          

        

      

      EXHIBIT
        AFORM OF ASSIGNMENT OF ASSIGNED
        RIGHTS AND OBLIGATIONS

       

      This
        Assignment and Assumption of Assigned Rights and Obligations is entered into
        by
        and between International Microcomputer Software, Inc. ("Assignor") and Mag
        Multi Corp. ("Assignee").

      


      RECITALS

      


      Assignor
        and Assignee entered into that certain Loan Sale Agreement effective January
        31,
        2005 (the "Loan Sale Agreement"). 

      


      The
        Loan
        Sale Agreement provides for the sale and transfer by Assignor to Assignee
        of
        certain Assigned Rights and Obligations (such term and all other capitalized
        terms used herein and not otherwise defined herein have the definitions ascribed
        to them in the Loan Sale Agreement).

      


      In
        exchange for the Purchase Price set forth in the Loan Sale Agreement and
        such
        other good and valuable consideration as provided in the Loan Sale Agreement,
        Assignor hereby agrees to sell to Assignee the Assigned Rights and Obligations
        as set forth in the Loan Sale Agreement and pursuant to the terms, conditions
        and provisions hereof.

      


      NOW,
        THEREFORE, premises considered:

      


      Assignor
        hereby transfers, assigns and conveys all right, title, interest and obligations
        in, to and under the Loans and the Loan Documents set forth on Schedule
        1
        hereto,
        including, without limitation, all rights to principal, interest, fees, costs
        and expenses payable thereunder after the Closing Date and all other rights
        and
        claims thereunder. 

      


      
        	
                Dated:
                  January 31, 2005

              	 	 	 


      

      ASSIGNOR:

       

       

      By:

      
        
          

        

      

      Its:

      
        
          

        

      

       

      ASSIGNEE:

       

       

      By:

      
        
          

        

      

      Its:

      
        
          

        

      

      



      
        
          
          

        

        
          -9-

          
            

          

        

        
          
          

        

      

       SCHEDULE
        1

      


      ASSIGNMENT
        OF ASSIGNED RIGHTS AND OBLIGATIONS

      


      


      1.    15%
        Promissory Note dated September 18, 2003, evidencing an indebtedness in
the
        principal sum of $350,000.00 executed by Digital Creative Development
        Corporation (“DCDC”), as payor, in favor of Assignor, as payee, as amended by
        that certain Amendment #1 to 15% Promissory Note made as of September 18,
        2004;

      


      2.    UCC-1
        Financing Statement from DCDC to Assignor; 

      


      3.    Certificate
        of DCDC;

      


      4.    Pledge
        and
        Security Agreement dated as of September 18, 2003 by and between DCDC, as
        Pledgor, and Assignor, as second party;

      


      5.    Assignment
        Separate From Certificate dated September 18, 2004, executed by DCDC in favor
        of
        Assignor;

      


      6.    400,000
        shares of the Common Stock of Assignor represented by Certificate No. MS
        14780;

      


      7.    Assignment
        Separate From Certificate dated September 18, 2004 executed by DCDC in favor
        of
        Assignor; and

      


      8.    304,250
        shares of the Preferred Stock of Access Propeller Holdings, Inc. represented
        by
        Certificate No. PA-4.

      


      


      
        
          
          

        

        -10-