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EXHIBIT 10.11
CONTINGENT LOAN AGREEMENT
THIS CONTINGENT LOAN AGREEMENT (this "Agreement") is made as of
February __, 1999 by and between ▇▇▇▇▇ ▇▇▇▇ (the "Borrower") and The Ultimate
Band List, LLC, a California limited liability company (the "Lender").
R E C I T A L S:
A. Borrower desires to make an aggregate capital contribution to
Lender in the form of shares of the issued and outstanding common stock, $.01
par value (the "Common Stock"), of Imusic, Inc., a Washington corporation
("Imusic"), in exchange for 392.13 common units of Lender (the "Units") pursuant
to that certain Exchange Agreement made on even date herewith by and among
Borrower, Lender and others (the "Exchange Agreement").
B. In order to induce Borrower to enter into the Exchange Agreement,
Lender has agreed to make loans (the "Loan") on the terms and conditions set
forth in this Agreement for the purpose of helping Borrower to pay his federal
and state income tax liabilities which may be incurred as a result of the
allocation of taxable income to Borrower (the "Certain Tax Liabilities") under
either (i) Section 704(c) of the Internal Revenue Code of 1986, as amended (the
"Code"), in connection with the liquidation of Imusic or taxable disposition or
other transfer of the Common Stock or (ii) Section 737 of the Code in connection
with a distribution of property by Lender to Borrower, which does not involve
the distribution of sufficient cash or marketable securities not subject to
restrictions on sale for Borrower to pay such federal and state income tax
liabilities thereon.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and the
agreements, representations, warranties and covenants set forth herein, the
parties hereto agree as follows:
1. Commitment. Under the terms and conditions of the Loan described
herein, Lender agrees to make loans at an annual interest rate equal to the
lowest applicable federal rate in effect for purposes of Section 1274(d) of the
Code as of the effective date of each such loan, up to an aggregate principal
amount of Borrower's Certain Tax Liabilities less aggregate Distributions (as
such term is hereinafter defined) made to Borrower through the date of such
loan. Such loans shall be made from time to time as requested by Borrower to
provide funds as needed to pay the Certain Tax Liabilities (each such loan or
advance, an "Advance"), on any business day during the period from the date
hereof until the Maturity Date (as such term is hereinafter defined) of the
Loan. For purposes of this Agreement, the term "Maturity Date" shall be the
earlier of the date that (a) Borrower exercises his redemption right pursuant to
Section 3.13 of that certain Amended and Restated Operating Agreement made as of
July 28, 1998, as amended (the "Operating Agreement"), (b) except with respect
to any sale of Units pursuant to Section 12.10 of the Operating Agreement,
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Borrower sells, transfers or otherwise disposes of all or any portion of his
Units, (c) Borrower sells all (or the remaining portion) of his Units pursuant
to Section 12.10 of the Operating Agreement, or (d) Lender makes aggregate
Distributions (as such term is hereinafter defined) to Borrower sufficient in
amount to pay the Certain Tax Liabilities of Borrower on the taxable disposition
of the Common Stock. For purposes of this Agreement, the term "Distributions"
shall mean the aggregate amount of all distributions of cash or marketable
securities not subject to restrictions on sale with respect to the Units in
excess of the amount of distributions with respect to the Units which are
necessary to pay all federal and state income taxes imposed upon Borrower as a
result of all income allocated or to be allocated by Lender with respect to the
Units through the date of the Advance (other than with respect to the Certain
Tax Liabilities).
2. Use of Proceeds; Timing. The proceeds of each Advance will be
used by Borrower only for the purpose of paying the Certain Tax Liabilities of
Borrower. Each Advance shall be made by Lender no earlier than ten (10) days
from the due date of the Certain Tax Liabilities underlying Borrower's request
for such Advance.
3. Conditions Precedent to Advances. The obligation of Lender to
make any Advance shall be subject to the following conditions precedent: (a)
receipt by Lender of a Secured Promissory Note (each, a "Note"), in the form of
Exhibit A, in like amount dated as of the expected date of the Advance and duly
executed by Borrower and in full force and effect; (b) the pledge of the Units
prescribed in Section 4 below has been duly executed by Borrower and remains in
full force and effect; and (c) upon the request of Lender, Borrower shall
provide Lender with all documentation reasonably necessary to substantiate the
Certain Tax Liabilities for which such Advance shall be used to pay and the
amount of federal and state income taxes imposed upon Borrower as a result of
income allocated or to be allocated by Lender with respect to the Units through
the date of the Advance.
4. Security for Performance. Borrower and Lender hereby acknowledge
and agree that:
(a) prior to the first Advance and until the Notes and all
other payment obligations of Borrower hereunder are paid in full, Borrower will
pledge 196.07 Units (the "Collateral Units") to secure the payment of all
obligations existing under the Notes whether for principal, interest, fees,
expenses or otherwise and/or to ensure Borrower's compliance with the terms and
conditions of this Agreement and the Unit Pledge Agreement, in the form of
Exhibit B (the "Pledge Agreement"), and
(b) that in connection with such pledge, Borrower shall enter
into the Pledge Agreement as of the date of the first Advance hereunder
requiring that Collateral Units be held by Lender as security for the payment of
all obligations existing under the Notes, whether for principal, interest, fees,
expenses or otherwise, and for Borrower's compliance with the terms and
conditions of this Agreement and the Pledge Agreement. The Notes and the Pledge
Agreement are hereinafter sometimes referred to collectively as the "Loan
Documents."
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5. Repayment of Notes. Borrower shall pay Lender the outstanding
principal balance, plus any other amounts (including, without limitation,
interest) owed by Borrower, under any outstanding Note on or before the Maturity
Date. Upon a sale of Units pursuant to Section 12.10 of the Operating Agreement,
Borrower shall immediately prepay an amount of the principal, plus any accrued
and unpaid interest thereon, due under the Notes equal to the proceeds of such
sale. Borrower may prepay any amount of the principal due under the Notes
without penalty. Each such payment shall be made in U.S. Dollars at the address
of Lender set forth in Section 11(b) below or in such other manner and at such
location as Lender shall designate in writing.
6. Offset. Borrower hereby acknowledges and agrees that the amount
of principal, interest, fees, and expenses otherwise payable to Lender may be
offset, deducted and withheld from any amounts due and payable to Borrower under
the Operating Agreement with respect to the Units or under the Exchange
Agreement, including, without limitation, the Redemption Price (as such term is
defined in the Operating Agreement) payable in connection with the redemption of
the Units.
7. Events of Default. The occurrence of any one or more of the
following events, acts or occurrences shall constitute an event of default (an
"Event of Default") hereunder:
(a) Failure to Make Payments. Borrower shall fail to pay (i)
when due any principal, any interest or premium outstanding under any Note, or
(ii) after the date when due under any Note, if applicable, or, after five (5)
business days' notice to Borrower, any fees, costs, expenses or other amounts
payable hereunder;
(b) Breach of Covenants. Borrower shall fail duly and
punctually to perform, comply with or observe any agreement, covenant or
obligation to be performed, observed or complied with by Borrower under this
Agreement or the other Loan Documents;
(c) Breach of Warranty. Any representation or warranty or
certification made or furnished by Borrower under this Agreement, any other Loan
Document, or any agreement, instrument or document contemplated hereby or
thereby, or otherwise in connection with the transactions contemplated by this
Agreement or the other Loan Documents shall, at any time, prove to have been
false or incorrect in any material respect when made; or
(d) Bankruptcy; Appointment of Receiver, Etc. The filing by
Borrower of a voluntary petition in bankruptcy; the commencement of a bankruptcy
or insolvency proceeding against Borrower (unless stayed or dismissed within
forty-five (45) days); the filing by Borrower of an assignment for the benefit
of creditors; or the attachment, execution or judicial seizure, whether by
enforcement of money judgment, writ or warrant of attachment or any other
process, of all or substantially all of the assets of Borrower which is not
released within sixty (60) days after such action.
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8. Remedies. Upon the occurrence of an Event of Default or, if such
default is of a nature that is curable within thirty (30) days, upon failure by
Borrower to cure such default within thirty (30) days following delivery of
written notice from Lender of the Event of Default, Lender may declare the
unpaid principal amount of a Note to be, and the same shall thereupon become,
due and payable together with the accrued interest thereon, without presentment,
demand, protest, any additional notice whatsoever or other requirements of any
kind (all of which are hereby expressly waived by Borrower, except as otherwise
provided in this Agreement or by applicable law), and Lender may exercise any
rights or remedies under this Agreement and under any other Loan Document.
9. Expenses. Lender and Borrower shall each pay or cause to be paid
its respective expenses relating to the transactions contemplated hereby;
provided, however, that Borrower shall pay on demand by Lender any and all costs
and expenses (including, without limitation, reasonable attorneys' fees and
disbursements and out-of-pocket costs of settlement) incurred by Lender in any
workout, restructuring or similar arrangements or after an Event of Default in
connection with the protection, preservation, exercise or enforcement of any of
the terms hereof or of Lender's rights hereunder or under any other Loan
Document and instruments contemplated hereby and thereby or in connection with
any foreclosure, collection or bankruptcy proceedings.
10. Further Assurances. At any time or from time to time upon the
request of the Lender, Borrower covenants and agrees to, from the effective date
hereof until the Notes and all other payment obligations of Borrower hereunder
are paid in full, execute such further documents and do such other acts as
Lender may reasonably request in order to effect fully the purposes of this
Agreement and the other Loan Documents and to provide for payment of the Notes
and all other amounts owing to Lender under this Agreement.
11. Miscellaneous.
(a) Waivers; Written Modifications.
(i) The rights and remedies provided for under this Agreement
and in the other Loan Documents are cumulative and are not exclusive of any
rights and remedies that may be available to Lender at law, in equity, or
otherwise. No amendment, modification, supplement, termination, consent or
waiver of this Agreement or any other Loan Document to which Borrower is a party
shall in any event be effective unless the same shall be in writing and signed
by Lender.
(ii) Any waiver of any provision of this Agreement or any
other Loan Document to which Borrower is a party shall be effective only in the
specific instance and for the specific purpose for which given. No notice to or
demand on Borrower in any case shall entitle Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any
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of the parties by another, or whenever any of the parties desires to give or
serve upon another any such communication with respect to this Agreement, each
such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and either shall be delivered in person with
receipt acknowledged (including by recognized overnight courier service) or by
registered or certified mail, return receipt requested, postage prepaid, or by
telecopy and confirmed by telecopy answer back addressed as follows:
If to Borrower: ▇▇▇▇▇ ▇▇▇▇
c/o Imusic, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ de Regt
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender: The Ultimate Band List, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answer back, or
three (3) business days after the same shall have been deposited with the United
States mail.
(c) Assignment by Borrower. Borrower may not assign or grant a
participation in its rights or obligations under this Agreement or any of the
other Loan Documents without the prior written consent of Lender.
(d) Severability of Provisions. Any provision of this Agreement that
is illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition or unenforceability without invalidating or impairing
the remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
(e) Limitation of Liability. Neither Lender nor any of its
affiliates, employees, agents or attorneys shall be liable to Borrower, for any
action taken, or omitted to be taken, by it or them or any of them under any
Loan Document or in connection therewith.
(f) Amendments Must Be Written. No modification, amendment or waiver
of any provisions of this Agreement and no consent to any departure by Borrower
herefrom, shall be effective unless the same shall be in writing and signed by
Borrower and Lender.
(g) Survival of Agreements, Representations and Warranties. All
agreements, representations, and warranties made herein shall survive the
execution and delivery of this Agreement, the execution and delivery of any Note
and the making of the Loan evidenced thereby, and shall continue until one year
after repayment of all of the Notes.
(h) Headings. Section headings used in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or affect the construction of this Agreement.
(i) Construction. Unless the context of this Agreement clearly
requires otherwise, references herein to the plural include the singular, the
singular includes the plural, the part includes the whole, and the word
"including" is not limiting. The words "hereof," "herein" and "hereby," refer to
this Agreement as a whole and not to any particular provision of this Agreement.
Section, subsection, and exhibit references are to this Agreement unless
otherwise specified.
(j) Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which counterparts, when
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so executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Agreement.
(k) Complete Agreement. This Agreement, together with the exhibits
to this Agreement, together with the other Loan Documents, is intended by the
parties as a final expression of their agreement.
(l) Exhibits. All of the exhibits attached to this Agreement shall
be deemed incorporated herein by reference.
(m) Governing Law; Venue and Jurisdiction. The validity of this
Agreement and the other Loan Documents, the construction, interpretation and
enforcement hereof and thereof and the rights of the parties hereto and thereto
shall be determined under, governed by, and construed in accordance with the
internal laws of the State of California, without giving effect to conflict of
laws principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first set forth above.
"Borrower"
--------------------------------------------------
▇▇▇▇▇ ▇▇▇▇
"Lender" THE ULTIMATE BAND LIST, LLC, a California limited
liability company
By:
--------------------------------------------
Name:
--------------------------------------------
Its: Co-Chief Executive Officer
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EXHIBIT 2.02A
UNSECURED PROMISSORY NOTE
Los Angeles, California
$________________ _________, 1999
FOR VALUE RECEIVED, the undersigned ARTISTdirect, Inc. ("Borrower")
hereby promises to pay to the order of ▇▇▇▇ ▇▇▇▇▇, an individual ("Payee"), the
principal sum of [the ▇▇▇▇▇ Preferred Return (net of the sum of the ▇▇▇▇▇ Common
Capital Bond and any Distributions made to ▇▇▇▇▇ in excess of the ▇▇▇▇▇ Common
Capital Bond in respect of the ▇▇▇▇▇ Preferred Return)] ($__________) together
with interest on the unpaid balance of such principal amount from the date
hereof at the rate of interest equal to the [lowest applicable federal rate for
this Note in effect for purposes of Section 1274(d) of the Internal Revenue Code
of 1986, as amended (the "Code"), as of the effective date hereof per annum
(computed on a basis of a 365-day year).] Accrued interest to be paid on this
Unsecured Promissory Note (this "Promissory Note") shall be payable annually in
arrears commencing on the last day of the first December subsequent to the date
hereof and continuing on the last day of each succeeding December thereafter
until paid in full.
The principal balance of, and all accrued and unpaid interest on,
this Promissory Note shall be payable in full by Borrower to Payee on [To come].
Payments of principal and interest on this Promissory Note shall be
made in legal tender of the United States of America and shall be made at such
place as Payee shall have designated to Borrower. If the date set for any
payment of principal or interest on this Promissory Note is a Saturday, Sunday
or legal holiday, then such payment shall be due on the next succeeding business
day.
The principal balance of, and accrued and unpaid interest on, this
Promissory Note may be prepaid at any time, in whole or in part, without premium
or penalty. Upon [to come], Borrower shall immediately prepay the principal
balance, plus any accrued and unpaid interest thereon, under this Note. [Any
such prepayment shall be first applied to the payment of any accrued and unpaid
interest and then to the unpaid balance of the principal amount.]
The occurrence of any one or more of the following events, acts or
occurrences shall constitute an event of default (an "Event of Default")
hereunder: (a) Borrower shall fail to pay (i) when due any principal, any
interest or premium outstanding under this Promissory Note, or (ii) after the
date when due under this Promissory Note, if applicable, or, after five (5)
business days' notice to Borrower, any fees, costs, expenses or other amounts
payable hereunder; or (b) the filing by Borrower of a voluntary petition in
bankruptcy; the commencement of a bankruptcy or insolvency
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proceeding against Borrower (unless stayed or dismissed within forty-five (45)
days); the filing by Borrower of an assignment for the benefit of creditors; or
the attachment, executing or judicial seizure, whether by enforcement of money
judgment, writ or warrant of attachment or any other process, of all or
substantially all of the assets of Borrower which is not released within sixty
(60) days after such action.
Upon the occurrence of any Event of Default, Payee may accelerate
this Promissory Note and declare the entire unpaid principal amount of this
Promissory Note and all accrued and unpaid interest hereon to be immediately due
and payable and, thereupon, the unpaid principal amount and all such accrued and
unpaid interest shall become and be immediately due and payable, without notice
of default, presentment or demand for payment, protest or notice of nonpayment
or dishonor, or other notices or demands of any kind (all of which are hereby
expressly waived by Borrower). The failure of Payee to accelerate this
Promissory Note shall not constitute a waiver of any of Payee's rights under
this Promissory Note as long as Borrower's default under this Promissory Note
continues.
The provisions of this Promissory Note shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflicts of law rules thereof. In the event that Payee is required to
take any action to collect or otherwise enforce payment of this Promissory Note,
Borrower agrees to pay such reasonable attorneys' fees, court costs and other
expenses as Payee may incur as a result thereof, whether or not suit is
commenced.
The terms and provisions of this Promissory Note shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors and assigns of
Payee and any assignee or transferee of this Promissory Note. In the event of
such transfer or assignment, the rights and privileges conferred upon Payee
shall automatically extend to and be vested in such assignee or transferee, all
subject to the terms and conditions hereof. Borrower's obligations, rights or
any interest hereunder may not be delegated or assigned without the written
consent of Payee.
All notices, requests, demands or other communications under this
Promissory Note shall or may be given to or served upon any of the parties by
another, or whenever any of the parties desires to give or serve upon another
any such communication with respect to this Promissory Note, each such notice,
demand, request, or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged (including by recognized overnight
courier service) or by registered or certified mail, return receipt requested,
postage prepaid, or by telecopy and confirmed by telecopy answer back addressed
as follows:
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If to Borrower: ARTISTdirect, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇
c/o American Recordings, Inc.
c/o Provident Financial Management
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: _______________
with copies to: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Ziffren, Brittenham, Branca & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: _______________
and to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: _______________
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice.
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Every notice, demand, request, or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answer back, or
three (3) business days after the same shall have been deposited with the United
States mail.
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IN WITNESS WHEREOF, this Promissory Note has been duly executed and
delivered by Borrower on the date first above written.
ARTISTdirect, Inc.
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
Co-Chief Executive Officer
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EXHIBIT 2.02B
UNSECURED PROMISSORY NOTE
Los Angeles, California
$________________ _________, 1999
FOR VALUE RECEIVED, the undersigned ARTISTdirect, Inc. ("Borrower")
hereby promises to pay to the order of ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual ("Payee"),
the principal sum of [Two Hundred Seventy-Five Thousand Dollars (net of any
Distributions made to ▇▇▇▇▇▇ pursuant to Section 8.4(b) of the Operating
Agreement.)] ($__________) together with interest on the unpaid balance of such
principal amount from the date hereof at the rate of interest equal to the
[lowest applicable federal rate for this Note in effect for purposes of Section
1274(d) of the Internal Revenue Code of 1986, as amended (the "Code"), as of the
effective date hereof per annum (computed on a basis of a 365-day year).]
Accrued interest to be paid on this Unsecured Promissory Note (this "Promissory
Note") shall be payable annually in arrears commencing on the last day of the
first December subsequent to the date hereof and continuing on the last day of
each succeeding December thereafter until paid in full.
The principal balance of, and all accrued and unpaid interest on,
this Promissory Note shall be payable in full by Borrower to Payee on [To come].
Payments of principal and interest on this Promissory Note shall be
made in legal tender of the United States of America and shall be made at such
place as Payee shall have designated to Borrower. If the date set for any
payment of principal or interest on this Promissory Note is a Saturday, Sunday
or legal holiday, then such payment shall be due on the next succeeding business
day.
The principal balance of, and accrued and unpaid interest on, this
Promissory Note may be prepaid at any time, in whole or in part, without premium
or penalty. Upon [to come], Borrower shall immediately prepay the principal
balance, plus any accrued and unpaid interest thereon, under this Note. [Any
such prepayment shall be first applied to the payment of any accrued and unpaid
interest and then to the unpaid balance of the principal amount.]
The occurrence of any one or more of the following events, acts or
occurrences shall constitute an event of default (an "Event of Default")
hereunder: (a) Borrower shall fail to pay (i) when due any principal, any
interest or premium outstanding under this Promissory Note, or (ii) after the
date when due under this Promissory Note, if applicable, or, after five (5)
business days' notice to Borrower, any fees, costs, expenses or other amounts
payable hereunder; or (b) the filing by Borrower of a voluntary petition in
bankruptcy; the commencement of a bankruptcy or insolvency
B-1
15
proceeding against Borrower (unless stayed or dismissed within forty-five (45)
days); the filing by Borrower of an assignment for the benefit of creditors; or
the attachment, executing or judicial seizure, whether by enforcement of money
judgment, writ or warrant of attachment or any other process, of all or
substantially all of the assets of Borrower which is not released within sixty
(60) days after such action.
Upon the occurrence of any Event of Default, Payee may accelerate
this Promissory Note and declare the entire unpaid principal amount of this
Promissory Note and all accrued and unpaid interest hereon to be immediately due
and payable and, thereupon, the unpaid principal amount and all such accrued and
unpaid interest shall become and be immediately due and payable, without notice
of default, presentment or demand for payment, protest or notice of nonpayment
or dishonor, or other notices or demands of any kind (all of which are hereby
expressly waived by Borrower). The failure of Payee to accelerate this
Promissory Note shall not constitute a waiver of any of Payee's rights under
this Promissory Note as long as Borrower's default under this Promissory Note
continues.
The provisions of this Promissory Note shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflicts of law rules thereof. In the event that Payee is required to
take any action to collect or otherwise enforce payment of this Promissory Note,
Borrower agrees to pay such reasonable attorneys' fees, court costs and other
expenses as Payee may incur as a result thereof, whether or not suit is
commenced.
The terms and provisions of this Promissory Note shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors and assigns of
Payee and any assignee or transferee of this Promissory Note. In the event of
such transfer or assignment, the rights and privileges conferred upon Payee
shall automatically extend to and be vested in such assignee or transferee, all
subject to the terms and conditions hereof. Borrower's obligations, rights or
any interest hereunder may not be delegated or assigned without the written
consent of Payee.
All notices, requests, demands or other communications under this
Promissory Note shall or may be given to or served upon any of the parties by
another, or whenever any of the parties desires to give or serve upon another
any such communication with respect to this Promissory Note, each such notice,
demand, request, or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged (including by recognized overnight
courier service) or by registered or certified mail, return receipt requested,
postage prepaid, or by telecopy and confirmed by telecopy answer back addressed
as follows:
B-2
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If to Borrower: ARTISTdirect, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇: ▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ARTISTdirect, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Ziffren, Brittenham, Branca & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: _______________
and to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: _______________
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request, or
other communication hereunder shall be deemed to have been duly given or served
on the date on which personally delivered, with receipt acknowledged, telecopied
B-3
17
and confirmed by telecopy answer back, or three (3) business days after the same
shall have been deposited with the United States mail.
B-4
18
IN WITNESS WHEREOF, this Promissory Note has been duly executed and
delivered by Borrower on the date first above written.
ARTISTdirect, Inc.
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Co-Chief Executive Officer
B-5
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EXHIBIT 2.02C
UNSECURED PROMISSORY NOTE
Los Angeles, California
$________________ _________, 1999
FOR VALUE RECEIVED, the undersigned ARTISTdirect, Inc. ("Borrower")
hereby promises to pay to the order of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual
("Payee"), the principal sum of [Two Hundred Seventy-Five Thousand Dollars (net
of any Distributions made to ▇▇▇▇▇▇ pursuant to Section 8.4(b) of the Operating
Agreement.)] ($__________) together with interest on the unpaid balance of such
principal amount from the date hereof at the rate of interest equal to the
[lowest applicable federal rate for this Note in effect for purposes of Section
1274(d) of the Internal Revenue Code of 1986, as amended (the "Code"), as of the
effective date hereof per annum (computed on a basis of a 365-day year).]
Accrued interest to be paid on this Unsecured Promissory Note (this "Promissory
Note") shall be payable annually in arrears commencing on the last day of the
first December subsequent to the date hereof and continuing on the last day of
each succeeding December thereafter until paid in full.
The principal balance of, and all accrued and unpaid interest on,
this Promissory Note shall be payable in full by Borrower to Payee on [To come].
Payments of principal and interest on this Promissory Note shall be
made in legal tender of the United States of America and shall be made at such
place as Payee shall have designated to Borrower. If the date set for any
payment of principal or interest on this Promissory Note is a Saturday, Sunday
or legal holiday, then such payment shall be due on the next succeeding business
day.
The principal balance of, and accrued and unpaid interest on, this
Promissory Note may be prepaid at any time, in whole or in part, without premium
or penalty. Upon [to come], Borrower shall immediately prepay the principal
balance, plus any accrued and unpaid interest thereon, under this Note. [Any
such prepayment shall be first applied to the payment of any accrued and unpaid
interest and then to the unpaid balance of the principal amount.]
The occurrence of any one or more of the following events, acts or
occurrences shall constitute an event of default (an "Event of Default")
hereunder: (a) Borrower shall fail to pay (i) when due any principal, any
interest or premium outstanding under this Promissory Note, or (ii) after the
date when due under this Promissory Note, if applicable, or, after five (5)
business days' notice to Borrower, any fees, costs, expenses or other amounts
payable hereunder; or (b) the filing by Borrower of a voluntary petition in
bankruptcy; the commencement of a bankruptcy or insolvency
C-1
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proceeding against Borrower (unless stayed or dismissed within forty-five (45)
days); the filing by Borrower of an assignment for the benefit of creditors; or
the attachment, executing or judicial seizure, whether by enforcement of money
judgment, writ or warrant of attachment or any other process, of all or
substantially all of the assets of Borrower which is not released within sixty
(60) days after such action.
Upon the occurrence of any Event of Default, Payee may accelerate
this Promissory Note and declare the entire unpaid principal amount of this
Promissory Note and all accrued and unpaid interest hereon to be immediately due
and payable and, thereupon, the unpaid principal amount and all such accrued and
unpaid interest shall become and be immediately due and payable, without notice
of default, presentment or demand for payment, protest or notice of nonpayment
or dishonor, or other notices or demands of any kind (all of which are hereby
expressly waived by Borrower). The failure of Payee to accelerate this
Promissory Note shall not constitute a waiver of any of Payee's rights under
this Promissory Note as long as Borrower's default under this Promissory Note
continues.
The provisions of this Promissory Note shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflicts of law rules thereof. In the event that Payee is required to
take any action to collect or otherwise enforce payment of this Promissory Note,
Borrower agrees to pay such reasonable attorneys' fees, court costs and other
expenses as Payee may incur as a result thereof, whether or not suit is
commenced.
The terms and provisions of this Promissory Note shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors and assigns of
Payee and any assignee or transferee of this Promissory Note. In the event of
such transfer or assignment, the rights and privileges conferred upon Payee
shall automatically extend to and be vested in such assignee or transferee, all
subject to the terms and conditions hereof. Borrower's obligations, rights or
any interest hereunder may not be delegated or assigned without the written
consent of Payee.
All notices, requests, demands or other communications under this
Promissory Note shall or may be given to or served upon any of the parties by
another, or whenever any of the parties desires to give or serve upon another
any such communication with respect to this Promissory Note, each such notice,
demand, request, or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged (including by recognized overnight
courier service) or by registered or certified mail, return receipt requested,
postage prepaid, or by telecopy and confirmed by telecopy answer back addressed
as follows:
C-2
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If to Borrower: ARTISTdirect, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ARTISTdirect, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Ziffren, Brittenham, Branca & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: _______________
and to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: _______________
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request, or
other communication hereunder shall be deemed to have been duly given or served
on the date on which personally delivered, with receipt acknowledged, telecopied
C-3
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and confirmed by telecopy answer back, or three (3) business days after the same
shall have been deposited with the United States mail.
C-4
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IN WITNESS WHEREOF, this Promissory Note has been duly executed and
delivered by Borrower on the date first above written.
ARTISTdirect, Inc.
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Co-Chief Executive Officer
C-5