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Exhibit 10.36
AGREEMENT TO RESTRUCTURE DEBT
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FCB Worldwide, Inc. d/b/a FCB Seattle ("FCB") and PhotoWorks, Inc.
("PhotoWorks") enter into this Agreement to Restructure Debt ("Agreement")
effective as of the 1/st/ day of November, 2000 (the "Effective Date").
WHEREAS, PhotoWorks is indebted to FCB in the amount of $2,052,409.11 (the
"Outstanding Balance"), which represents unpaid principal and accrued interest
due and payable to FCB as of the Effective Date;
WHEREAS, FCB and PhotoWorks desire to restructure the debt to allow
PhotoWorks to repay the Outstanding Balance plus interest over time;
NOW THEREFORE, FCB and PhotoWorks, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, agree to the following
terms:
1. PhotoWorks hereby acknowledges that it owes FCB $2,052,409.11 as of the
Effective Date, pursuant to the April 27, 2000 agency-client agreement
between the parties (the "Agency Agreement"). PhotoWorks represents and
warrants that it does not and will not ever dispute the validity of this
debt. (Subject to final media audit. LCB)
2. PhotoWorks hereby agrees to repay the Outstanding Balance, plus interest at
the rate of 1% per month on the then unpaid portion of the Outstanding
Balance until the entire Outstanding Balance is repaid, as follows.
PhotoWorks shall make monthly interest payments to FCB on the then unpaid
portion of the Outstanding Balance beginning on December 1, 2000 (for
interest accrued for the prior month) and continuing on the first business
day of each consecutive month until the entire Outstanding Balance is
repaid. Further, PhotoWorks shall make principal payments to reduce the
Outstanding Balance in the amounts and no later than the dates shown below.
March 23, 2001 $410,481.82
June 28, 2001 $410,481.82
October 2, 2001 $410,481.82
December 28, 2001 $410,481.82
March 22, 2002 $410,481.82
A schedule showing the required interest and principal payments is attached
hereto as Exhibit A. All required payments shall be made by wire transfer
to the following account:
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Bank: Bank One - Chicago, IL
Acct. Name: True North Communications Inc.
Acct. Num: 10-03540
ABA Num: 071 000 013
3. For as long as PhotoWorks is making timely payments in accordance with
paragraph 2 above, FCB shall refrain from filing any legal action against
PhotoWorks to recover the then unpaid portion of the Outstanding Balance
plus interest. If PhotoWorks misses or is late in making a single payment
required by paragraph 2 above, then the then unpaid portion of the
Outstanding Balance plus interest shall become immediately due and payable,
and FCB may at its option commence legal proceedings immediately to collect
such sums. Interest will continue to accrue until the entire Outstanding
Balance plus interest is paid to FCB.
4. Beginning on December 20, 2000, and continuing on the 20th of each
consecutive month until the entire Outstanding Balance is repaid,
PhotoWorks shall send copies to FCB of its actual monthly statement of cash
flows for the prior month along with its then most current projection of
future cash flows. For calendar quarter-ends and calendar year-ends,
PhotoWorks shall have an additional 10 day grace period to provide such
information to FCB.
5. If FCB receives any vendor invoices or talent charges after the Effective
Date that are not included in the Outstanding Balance for work previously
authorized by and billable to PhotoWorks, FCB shall invoice PhotoWorks for
such costs and PhotoWorks shall pay such invoices within 30 days of receipt
from FCB. If not paid within 30 days, such invoices will become subject to
interest charges and all other applicable provisions of the Agency
Agreement.
6. If FCB receives any vendor rebates, refunds, or credits after the Effective
Date that are not included in the Outstanding Balance for charges
attributable to PhotoWorks (including any partial credit agreed to by The
Hacker Group), FCB shall credit such amounts against PhotoWorks' then
Outstanding Balance. Such credits will not change the principal payments
due on the dates provided in paragraph 2 above, except insofar as they
would reduce the amount of the final principal payment.
7. No delay or omission on the part of FCB in the exercise of any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy.
8. This Agreement inures to and binds the successors and assigns of FCB and
PhotoWorks.
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9. Time is of the essence as to the terms of this Agreement.
10. This Agreement shall be construed according to the substantive laws of the
State of Washington, excluding its conflict of laws rules. The parties
agree and consent that jurisdiction and venue of all matters relating
hereto shall be vested exclusively in the federal, state and local courts
located within the State of Washington. In any action to enforce any
provisions of this Agreement, the prevailing party shall be entitled to
recover all reasonable costs and expenses, including attorneys' fees,
related to any such action.
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly
executed and effective as of the date and year first written above.
PHOTOWORKS, INC. FCB WORLDWIDE, INC. d/b/a
FCB SEATTLE
/s/ Howard Lee /s/ Peter Hatt
By: Howard Lee By: Peter Hatt
Title: President & CEO Title: Chairman
Dated: 11-29-00 Dated: 11-22-00
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EXHIBIT A
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PhotoWorks Payment Schedule
As of 11/22/2000
<TABLE>
<CAPTION>
Date Item Interest Payments Principle Payments Balance
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Beginning Balance $ 2,052,409.11
December 1, 2000 Nov 2000 Interest 20,524.09 - $ 2,052,409.11
January 1, 2001 Dec 2000 Interest 20,524.09 - $ 2,052,409.11
February 1, 2001 Jan 2001 Interest 20,524.09 - $ 2,052,409.11
March 1, 2001 Feb 2001 Interest 20,524.09 - $ 2,052,409.11
March 23, 2001 Principle Pmt 1/5 - 410,481.82 $ 1,641,927.29
April 1, 2001 Mar 2001 Interest 19,464.78 - $ 1,641,927.29
May 1, 2001 Apr 2001 Interest 16,419.27 - $ 1,641,927.29
June 1, 2001 May 2001 Interest 16,419.27 - $ 1,641,927.29
June 28, 2001 Principle Pmt 2/5 - 410,481.82 $ 1,231,445.47
July 1, 2001 Jun 2001 Interest 16,145.62 - $ 1,231,445.47
August 1, 2001 Jul 2001 Interest 12,314.45 - $ 1,231,445.47
September 1, 2001 Aug 2001 Interest 12,314.45 - $ 1,231,445.47
October 1, 2001 Sep 2001 Interest 12,314.45 - $ 1,231,445.47
October 2, 2001 Principle Pmt 3/5 - 410,481.82 $ 820,963.65
November 1, 2001 Oct 2001 Interest 8,474.46 - $ 820,963.65
December 1, 2001 Nov 2001 Interest 8,209.64 - $ 820,963.65
December 28, 2001 Principle Pmt 4/5 - 410,481.82 $ 410,481.83
January 1, 2002 Dec 2001 Interest 7,812.40 - $ 410,481.83
February 1, 2002 Jan 2001 Interest 4,104.82 - $ 410,481.83
March 1, 2002 Feb 2001 Interest 4,104.82 - $ 410,481.83
March 22, 2002 Mar 2001 Interest 4,104.82 - $ 410,481.83
March 22, 2002 Principle Pmt 5/5 - 410,481.82 $ 0.01
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Totals $ 224,299.63 $ 2,052,409.10
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