EXHIBIT 10.6
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of July 28, 2005 (as may be amended,
restated, supplemented or otherwise modified from time to time, this
"Agreement"), among ARTISTDirect, Inc., a Delaware corporation (the "Company"),
and each of the other undersigned grantors (together with the Company, each
being referred to individually as a "Grantor," and collectively the "Grantors")
and U.S. Bank National Association, a national banking association, as
collateral agent (the "Collateral Agent") for the Collateral Agent and the
Holders (as defined below) (collectively, the "Secured Parties").
PRELIMINARY STATEMENTS
A. ARTISTDirect, Inc., a Delaware corporation (the "Company"), the Initial
Purchasers named therein (such Initial Purchasers, together with all holders of
the Notes, the "Holders") and the Collateral Agent have entered into a Note and
Warrant Purchase Agreement dated as of the date hereof (as may be amended,
restated, supplemented, or otherwise modified from time to time, and any
replacement or refinancing thereof, the "Note and Warrant Purchase Agreement").
B. The Company owns all of the issued and outstanding capital stock of the
Subsidiaries.
C. It is a requirement under the Note and Warrant Purchase Agreement that
each Grantor shall have granted the security interests and undertaken the
obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the promises contained herein, in
order to induce the Holders to purchase the Notes under the Note and Warrant
Purchase Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, each Grantor hereby agrees
with the Collateral Agent as follows
Section 1. Definitions. All capitalized terms used herein without
definitions shall have the respective meanings provided therefor in the Note and
Warrant Purchase Agreement. All terms defined in the Uniform Commercial Code of
the State of New York (the "UCC") and used herein shall have the same
definitions herein as specified therein; provided, however, that the term
"instrument" shall be such term as defined in Article 9 of the UCC rather than
Article 3. For purposes of this Agreement, "Obligations" shall mean, with
respect to the Company, all Obligations as defined in the Note and Warrant
Purchase Agreement.
Section 2. Grant of Security Interest.
(a) Collateral Granted. Each Grantor hereby grants to the Collateral
Agent, for the benefit of the Secured Creditors, to secure the payment and
performance in full of all of the Obligations under the Note and Warrant
Purchase Agreement and the other Transaction
Documents, a security interest in and so pledges and assigns to the Collateral
Agent, for the benefit of the Secured Creditors, all of such Grantor's right,
title and interest in the following properties, wherever located, whether now
owned or hereafter acquired or arising, and all proceeds and products thereof
(all of the same being hereinafter called the "Collateral"):
All personal and fixture property of every kind and nature including
without limitation all goods (including inventory, equipment and any accessions
thereto), instruments (including promissory notes), documents, accounts
(including health-care-insurance receivables if any), chattel paper (whether
tangible or electronic), deposit accounts, letter-of-credit rights (whether or
not the letter of credit is evidenced by a writing), commercial tort claims,
securities and all other investment property, supporting obligations, any other
contract rights or rights to the payment of money, insurance claims and
proceeds, and all general intangibles (including all payment intangibles).
(b) Delivery of Instruments, etc.
(i) Pursuant to the terms of the Pledge Agreement and hereof, each
Grantor has endorsed, assigned and delivered to the Collateral Agent all
negotiable or non-negotiable instruments, certificated securities and chattel
paper pledged by it hereunder and under the Pledge Agreement, together with
instruments of transfer or assignment duly executed in blank as the Collateral
Agent may have specified. In the event that any Grantor shall, after the date of
this Agreement, acquire any other negotiable or non-negotiable instruments,
certificated securities or chattel paper to be pledged by it hereunder, such
Grantor shall forthwith endorse, assign and deliver the same to the Collateral
Agent, accompanied by such instruments of transfer or assignment duly executed
in blank as the Collateral Agent may from time to time specify.
(ii) To the extent that any securities, whether certificated or
uncertificated, or other investment property now or hereafter acquired by any
Grantor are held by such Grantor or its nominee through a securities
intermediary or commodity intermediary, such Grantor shall, at the request of
the Collateral Agent, cause such securities intermediary or (as the case may be)
commodity intermediary, pursuant to an agreement in form and substance
satisfactory to the Collateral Agent, to agree to comply with entitlement orders
or other instructions from the Collateral Agent to such securities intermediary
as to such securities or other investment property, or (as the case may be) to
apply any value distributed on account of any commodity contract as directed by
the Collateral Agent to such commodity intermediary, without further consent of
such Grantor or such nominee.
(iii) To the extent that any Grantor is a beneficiary under any written
letter of credit now or hereafter issued in favor of such Grantor, such Grantor
shall deliver such letter of credit to the Collateral Agent. The Collateral
Agent shall from time to time, at the request and expense of such Grantor, make
such arrangements with such Grantor as are in the Collateral Agent's reasonable
judgment necessary and appropriate so that such Grantor may make any drawing to
which such Grantor is entitled under such letter of credit, without impairment
of the Collateral Agent's perfected security interest in such Grantor's rights
to proceeds of such letter of credit or in the actual proceeds of such drawing.
At the Collateral Agent's request, each Grantor shall, for any letter of credit,
whether or not written, now or hereafter issued in favor of such Grantor as
beneficiary, execute and deliver to the issuer and any confirmer of such letter
of credit an
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assignment of proceeds form, in favor of the Collateral Agent and satisfactory
to the Collateral Agent and such issuer or (as the case may be) such confirmer,
requiring the proceeds of any drawing under such letter of credit to be paid
directly to the Collateral Agent for application as provided in Section 0
hereof.
(c) Commercial Tort Claims. If any Grantor shall at any time hold or
acquire a commercial tort claim, such Grantor shall immediately notify the
Collateral Agent in a writing signed by such Grantor of the particulars thereof
and grant to the Collateral Agent, for the benefit of the Secured Creditors, in
such writing a security interest therein and in the proceeds thereof, all upon
the terms of this Agreement, with such writing to be in form and substance
satisfactory to the Collateral Agent.
(d) Authorization to File Financing Statements. Each Grantor hereby
irrevocably authorizes the Collateral Agent at any time and from time to time to
file in any filing office in any Uniform Commercial Code jurisdiction any
initial financing statements and amendments thereto that (i) indicate the
Collateral (A) as all assets of such Grantor or words of similar effect,
regardless of whether any particular asset comprised in the Collateral falls
within the scope of Article 9 of the Uniform Commercial Code of such
jurisdiction, or (B) as being of an equal or lesser scope or with greater
detail, and (ii) provide any other information required by Part 5 of Article 9
of the Uniform Commercial Code of such jurisdiction, for the sufficiency or
filing office acceptance of any financing statement or amendment, including (A)
whether such Grantor is an organization, the type of organization and any
organizational identification number issued to such Grantor and, (B) in the case
of a financing statement filed as a fixture filing or indicating Collateral as
as-extracted collateral or timber to be cut, a sufficient description of real
property to which the Collateral relates. Each Grantor agrees to furnish any
such information to the Collateral Agent promptly upon the Collateral Agent's
request. Each Grantor also ratifies its authorization for the Collateral Agent
to have filed in any Uniform Commercial Code jurisdiction any like initial
financing statements or amendments thereto if filed prior to the date hereof.
(e) Further Actions. Each Grantor shall at any time and from time to time,
take such steps as the Collateral Agent may reasonably request for the
Collateral Agent (i) to obtain an acknowledgement, in form and substance
satisfactory to the Collateral Agent, of any bailee having possession of any of
the Collateral that the bailee holds such Collateral for the Collateral Agent,
(ii) to obtain "control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as such terms are defined
in UCC Article 9 with corresponding provisions in Sections 9-104, 9-105, 9-106
and 9-107 relating to what constitutes "control" for such items of Collateral),
with any agreements establishing control to be in form and substance
satisfactory to the Collateral Agent, and (iii) otherwise to insure the
continued perfection and priority of the Collateral Agent's security interest in
any of the Collateral and of the preservation of its rights therein.
Section 3. Title to Collateral, etc. Each Grantor is the owner of its
respective Collateral free from any adverse lien, security interest or other
encumbrance, except for the security interest created by this Agreement and
Permitted Liens. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in Section 9-102(a)(34) of the UCC. None of the
account debtors in respect of any accounts, chattel paper or general intangibles
and none of the obligors
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in respect of any instruments included in the Collateral is a Governmental
Authority subject to the Federal Assignment of Claims Act.
Section 4. Continuous Perfection. Each Grantor's place of business or, if
more than one, chief executive office is indicated on such Grantor's Perfection
Certificate delivered to the Collateral Agent herewith (each a "Perfection
Certificate" and together "Perfection Certificates"), the form of which is
attached hereto as Exhibit A. In furtherance of, and not in limitation of the
additional restrictions contained in the Note and Warrant Purchase Agreement, no
Grantor will change its jurisdiction of formation without providing at least
thirty (30) days prior written notice to the Collateral Agent. In addition, each
Grantor shall notify the Collateral Agent in writing of any change in its name,
identity or corporate structure within fifteen (15) days of such change. The
Collateral, to the extent not delivered to the Collateral Agent pursuant to
Section 2(b), will be kept at those locations listed on the Perfection
Certificate and no Grantor will remove the Collateral from such locations,
without providing at least thirty (30) days prior written notice to the
Collateral Agent.
Section 5. No Liens. Except for the security interest herein granted and
Permitted Liens, each Grantor shall be the owner of its respective Collateral
free from any lien, security interest or other encumbrance, and each Grantor
shall defend the same against all claims and demands of all persons at any time
claiming the same or any interests therein adverse to the Collateral Agent or
any of the Secured Creditors. No Grantor shall pledge, mortgage or create, or
suffer to exist a security interest in the Collateral in favor of any person
other than the Collateral Agent, for the benefit of the Secured Creditors,
except for Permitted Liens.
Section 6. No Transfers. No Transfers. No Grantor will sell or offer to
sell or otherwise transfer any Collateral or any interest therein except as
permitted by the Note and Warrant Purchase Agreement.
Section 7. Insurance.
(a) Maintenance of Insurance. Each Grantor will maintain with financially
sound and reputable insurers insurance with respect to its properties and
business against such casualties and contingencies as shall be in accordance
with general practices of businesses engaged in similar activities in similar
geographic areas. Such insurance shall be in such minimum amounts that such
Grantor will not be deemed a co-insurer under applicable insurance laws,
regulations and policies and otherwise shall be in such amounts, contain such
terms, be in such forms and be for such periods as may be reasonably
satisfactory to the Collateral Agent. In addition, all such casualty or physical
hazard insurance shall be payable to the Collateral Agent as loss payee under a
"standard" or "New York" loss payee clause for the benefit of the Secured
Creditors. Without limiting the foregoing, each Grantor will (i) keep all of its
physical property insured with casualty or physical hazard insurance on an "all
risks" basis, with broad form flood and earthquake coverages (to the extent
necessitated by the geographic area of the property) and electronic data
processing coverage, with a full replacement cost endorsement and an "agreed
amount" clause in an amount equal to 100% of the full replacement cost of such
property, (ii) maintain all such workers' compensation or similar insurance as
may be required by law and (iii) maintain, in amounts and with deductibles equal
to those generally maintained by businesses engaged in similar activities in
similar geographic areas, general public liability insurance
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against claims of bodily injury, death or property damage occurring, on, in or
about the properties of such Grantor; business interruption insurance; and
product liability insurance.
(b) Notice of Cancellation, etc. All policies of insurance shall provide
for at least thirty (30) days' prior written cancellation notice to the
Collateral Agent. In the event of failure by any Grantor to provide and maintain
insurance as herein provided, the Collateral Agent may, at its option, provide
such insurance and charge the amount thereof to such Grantor. Each Grantor shall
furnish the Collateral Agent with certificates of insurance and policies
evidencing compliance with the foregoing insurance provisions.
Section 8. Maintenance of Collateral.
(a) The Grantors will keep any tangible Collateral in good condition
(ordinary wear and tear excepted), repair and working order and will not use the
same in violation of law or any policy of insurance thereon. The Collateral
Agent, or its designee, may inspect the Collateral at any reasonable time,
wherever located. The Grantors shall use commercially reasonable efforts to
obtain consents from any owners of any real property upon which any Collateral
is located, granting permission to the Collateral Agent to enter such property
for the purposes of inspecting the Collateral and otherwise enforcing its rights
under this Agreement, the Pledge Agreement and the Note and Warrant Purchase
Agreement with respect to the Collateral. The Grantors will pay promptly when
due all taxes, assessments, governmental charges, levies and claims upon the
Collateral or incurred in connection with the use or operation of such
Collateral or incurred in connection with this Agreement; provided, that no
Grantor shall not be required to pay any such tax, assessment, charge, levy or
claim that is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with GAAP. Each
Grantor has at all times operated, and each Grantor will continue to operate,
its business in compliance with all applicable provisions of the federal Fair
Labor Standards Act, as amended.
Section 9. Collateral Protection Expenses; Preservation of Collateral.
(a) Expenses Incurred by Collateral Agent. In its discretion, the
Collateral Agent may discharge taxes and other encumbrances at any time levied
or placed on any of the Collateral, make repairs thereto after the occurrence
and during the continuance of an Event of Default and pay any necessary filing
fees. The Grantors agree to reimburse the Collateral Agent on demand for any and
all reasonable expenditures so made. The Collateral Agent shall have no
obligation to any Grantor to make any such expenditures, nor shall the making
thereof relieve any Grantor of any default.
(b) Collateral Agent's Obligations and Duties. Anything herein to the
contrary notwithstanding, each Grantor shall remain liable under each contract
or agreement comprised in the Collateral to be observed or performed by such
Grantor thereunder. Neither the Collateral Agent nor any Secured Creditor shall
have any obligation or liability under any such contract or agreement by reason
of or arising out of this Agreement or the receipt by the Collateral Agent or
any Secured Creditor of any payment relating to any of the Collateral, nor shall
the Collateral Agent or any Secured Creditor be obligated in any manner to
perform any of the obligations of any Grantor under or pursuant to any such
contract or agreement, to make inquiry as to the
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nature or sufficiency of any payment received by the Collateral Agent or any
Secured Creditor in respect of the Collateral or as to the sufficiency of any
performance by any party under any such contract or agreement, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to the Collateral Agent or
to which the Collateral Agent or any Secured Creditor may be entitled at any
time or times. The Collateral Agent's sole duty with respect to the custody,
safe keeping and physical preservation of the Collateral in its possession,
under Section 9-207 of the UCC or otherwise, shall be to deal with such
Collateral in the same manner as the Collateral Agent deals with similar
property for its own account.
Section 10. Securities and Deposits.
(a) Upon the occurrence and during the continuance of an Event of Default,
the Collateral Agent may (a) transfer to itself or any nominee any securities
constituting Collateral, receive any income thereon and hold such income as
additional Collateral or apply it to the Obligations and/or (b) demand, sue for,
collect, or make any settlement or compromise that it deems desirable with
respect to the Collateral.
Section 11. Notification to Account Debtors and Other Obligors.
(a) If an Event of Default shall have occurred and be continuing, each
Grantor shall, at the request of the Collateral Agent, notify account debtors on
accounts, chattel paper and general intangibles of such Grantor and obligors on
instruments for which such Grantor is an obligee of the security interest of the
Collateral Agent in any account, chattel paper, general intangible or instrument
and that payment thereof is to be made directly to the Collateral Agent or to
any financial institution designated by the Collateral Agent as the Collateral
Agent's agent therefor, and the Collateral Agent may itself, if an Event of
Default shall have occurred and be continuing, without notice to or demand upon
any Grantor, so notify account debtors and obligors. After the making of such a
request or the giving of any such notification, each Grantor shall hold any
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by such Grantor as trustee for the Collateral Agent, for
the benefit of the Secured Creditors, without commingling the same with other
funds of such Grantor and shall turn the same over to the Collateral Agent in
the identical form received, together with any necessary endorsements or
assignments. The Collateral Agent shall apply the proceeds of collection of
accounts, chattel paper, general intangibles and instruments received by the
Collateral Agent to the Obligations, such proceeds to be immediately credited
after final payment in cash or solvent credits of the items giving rise to them.
Notwithstanding anything to the contrary in the foregoing, the Collateral Agent
shall not deliver any "entitlement order" (within the meaning of Section 8-102
of the UCC), instruction, "Notice of Sole Control" or other order to any
financial institution or securities intermediary with respect to any Collateral
of a Grantor unless an Event of Default has occurred and is continuing.
Section 12. Further Assurances.
(a) Each Grantor, at its own expense, shall do, make, execute and deliver
all such additional and further acts, things, deeds, assurances and instruments
as the Collateral Agent may reasonably require more completely to vest in and
assure to the Collateral Agent and the Secured
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Creditors their respective rights hereunder or in any of the Collateral,
including, without limitation, (a) authorizing, delivering and, where
appropriate, filing financing statements and continuation statements under the
Uniform Commercial Code of any applicable jurisdiction, (b) using commercially
reasonable efforts to obtain governmental and other third party consents and
approvals, (c) using commercially reasonable efforts to obtain waivers from
mortgagees and landlords and (d) taking all actions required by Sections 8-106
and 9-106 of the Uniform Commercial Code in each relevant jurisdiction with
respect to certificated and uncertificated securities.
Section 13. Power of Attorney.
(a) Appointment and Powers of Collateral Agent. Each Grantor hereby
irrevocably constitutes and appoints the Collateral Agent and any officer or
agent thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the place and
stead of such Grantor or in the Collateral Agent's own name, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments that may be necessary or
desirable to accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives said attorneys the power and right, on
behalf of such Grantor, without notice to or assent by such Grantor, upon the
occurrence and during the continuance of an Event of Default, generally to sell,
transfer, pledge, make any agreement with respect to or otherwise deal with any
of the Collateral in compliance with the UCC and as fully and completely as
though the Collateral Agent were the absolute owner thereof for all purposes,
and to do at such Grantor's expense, at any time, or from time to time, (i)
after the occurrence and during the continuance of an Event of Default, all acts
and things which the Collateral Agent reasonably deems necessary to protect,
preserve or realize upon the Collateral, and (ii) at any time all acts and
things which the Collateral Agent reasonably deems necessary to maintain the
perfection and priority of the Collateral Agent's security interest in the
Collateral, in each case, in order to effect the intent of this Agreement, all
as fully and effectively as such Grantor might do, including, without
limitation, (x) the filing and prosecuting of registration and transfer
applications with the appropriate federal or local agencies or authorities with
respect to trademarks, copyrights and patentable inventions and processes that
are included within the Collateral, (y) upon written notice to such Grantor, the
exercise of voting rights with respect to voting securities, which rights may be
exercised, if the Collateral Agent so elects, with a view to causing the
liquidation in a commercially reasonable manner of assets of the issuer of any
such securities and (z) the execution, delivery and recording, in connection
with any sale or other disposition of any Collateral, of the endorsements,
assignments or other instruments of conveyance or transfer with respect to such
Collateral. This power of attorney is a power coupled with an interest and shall
terminate upon the termination of this Agreement pursuant to Section 22.
(b) Ratification by the Grantors. To the extent permitted by law, each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof.
(c) No Duty on Collateral Agent. The powers conferred on the Collateral
Agent hereunder are solely to protect the interests of the Collateral Agent and
the Secured Creditors in the Collateral and shall not impose any duty upon the
Collateral Agent to exercise any such powers. The Collateral Agent shall be
accountable only for the amounts that it actually receives
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as a result of the exercise of such powers and neither it nor any of its
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act, except for the Collateral Agent's own gross
negligence or willful misconduct.
Section 14. Remedies. If an Event of Default shall have occurred and be
continuing, the Collateral Agent may, without notice to or demand upon any
Grantor, declare this Agreement to be in default, and the Collateral Agent shall
thereafter have in any jurisdiction in which enforcement hereof is sought, in
addition to all other rights and remedies, the rights and remedies of a secured
party under the Uniform Commercial Code of such jurisdiction, including, without
limitation, the right to take possession of the Collateral, and for that purpose
the Collateral Agent may enter upon any premises on which the Collateral may be
situated and remove the same therefrom. In addition, if an Event of Default
shall have occurred and be continuing, the Collateral Agent may in its
discretion require the Grantors to assemble all or any part of the Collateral at
such location or locations within Los Angeles County, California or at such
other locations as the Collateral Agent may reasonably designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Collateral Agent shall give to
the applicable Grantor at least ten (10) Business Days prior written notice of
the time and place of any public sale of Collateral or of the time after which
any private sale or any other intended disposition is to be made. Each Grantor
hereby acknowledges that ten (10) Business Days prior written notice of such
sale or sales shall be reasonable notice. In addition, each Grantor waives any
and all rights that it may have to a judicial hearing in advance of the
enforcement of any of the Collateral Agent's rights hereunder, including,
without limitation, its right following an Event of Default to take immediate
possession of the Collateral and to exercise its rights with respect thereto.
Section 15. No Waiver, etc. Each Grantor waives demand, notice, protest,
notice of acceptance of this Agreement, notice of loans made, credit extended,
Collateral received or delivered or other action taken in reliance hereon and
all other demands and notices of any description. With respect to both the
Obligations and the Collateral, each Grantor assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of or failure to perfect any security interest
in any Collateral, to the addition or release of any party or person primarily
or secondarily liable, to the acceptance of partial payment thereon and the
settlement, compromising or adjusting of any thereof, all in such manner and at
such time or times as the Collateral Agent may deem advisable. The Collateral
Agent shall have no duty as to the collection or protection of the Collateral or
any income thereon, nor as to the preservation of rights against prior parties,
nor as to the preservation of any rights pertaining thereto beyond the safe
custody thereof as set forth in Section 13(e). The Collateral Agent shall not be
deemed to have waived any of its rights upon or under the Obligations or the
Collateral unless such waiver shall be in writing and in accordance with Section
13(e) of the Note and Warrant Purchase Agreement. No delay or omission on the
part of the Collateral Agent in exercising any right shall operate as a waiver
of such right or any other right. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right on any future occasion. All rights
and remedies of the Collateral Agent with respect to the Obligations or the
Collateral, whether evidenced hereby or by any other instrument or papers, shall
be cumulative and may be exercised singularly, alternatively, successively or
concurrently at such time or at such times as the Collateral Agent deems
expedient.
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Section 16. Marshalling. Neither the Collateral Agent nor any Secured
Creditor shall be required to marshal any present or future collateral security
(including but not limited to this Agreement and the Collateral) for, or other
assurances of payment of, the Obligations or any of them or to resort to such
collateral security or other assurances of payment in any particular order, and
all of the rights of the Collateral Agent hereunder and of the Collateral Agent
or any Secured Creditor in respect of such collateral security and other
assurances of payment shall be cumulative and in addition to all other rights,
however existing or arising. To the extent that it lawfully may, each Grantor
hereby agrees that it will not invoke any law relating to the marshalling of
collateral which might cause delay in or impede the enforcement of the
Collateral Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
each Grantor hereby irrevocably waives the benefits of all such laws.
Section 17. Proceeds of Dispositions; Expenses. Except as expressly
provided elsewhere in this Agreement or in the Note and Warrant Purchase
Agreement, all proceeds received by the Collateral Agent in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Collateral Agent, be held by the Collateral Agent
as Collateral for, and/or then, or at any time thereafter, applied in full or in
part by the Collateral Agent against, the Obligations in the following order of
priority:
(i) First, to the payment of, or (as the case may be) the reimbursement
of, the Collateral Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Collateral Agent in connection with the collection of such monies by the
Collateral Agent, for the exercise, protection or enforcement by the Collateral
Agent of all or any of the rights, remedies, powers and privileges of the
Collateral Agent under this Agreement or any of the other Transaction Documents
or in respect of the Collateral or in support of any provision of adequate
indemnity to the Collateral Agent against any taxes or liens which by law shall
have, or may have, priority over the rights of the Collateral Agent to such
monies;
(ii) Second, to all other Obligations (for the ratable benefit of the
holders thereof); provided, however, that distributions shall be made pari passu
among each type of Obligation owing to the Secured Creditors, such as interest,
principal, fees and expenses, among the Secured Creditors pro rata;
(iii) Third, upon payment and satisfaction in full or other provisions for
payment in full satisfactory to the Secured Creditors of all of the Obligations,
to the payment of any obligations required to be paid pursuant to Section
9-615(a)(3) of the UCC or otherwise in accordance with applicable law or
pursuant to an order of a court of competent jurisdiction; and
(iv) Fourth, the excess, if any, shall be returned to the Grantors or to
such other Persons as are entitled thereto.
Section 18. Overdue Amounts. Until paid, all amounts due and payable by
the Grantors hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after
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judgment, interest at the rate of interest after an Event of Default set forth
in the Note and Warrant Purchase Agreement.
Section 19. Governing Law; Terms. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE
EXTENT THAT THE UCC PROVIDES THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. Unless otherwise defined herein or in the Note and Warrant Purchase
Agreement, terms used in Articles 8 and 9 of the Uniform Commercial Code in the
State of New York are used herein as therein defined.
Section 20. Consent to Jurisdiction and Service of Process. ANY AND ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GRANTOR ARISING OUT OF OR RELATING TO
THIS AGREEMENT MAY BE BROUGHT IN ANY NEW YORK STATE COURT LOCATED IN THE CITY OF
NEW YORK, BOROUGH OF MANHATTAN, OR IN ANY FEDERAL DISTRICT COURT IN THE SOUTHERN
DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH
GRANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH GRANTOR
HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER SUCH GRANTOR AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE
AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
GRANTOR. Each Grantor hereby agrees that service of all process in any such
proceeding in any such court may be made by registered or certified mail, return
receipt requested, to such Grantor at its address set forth below its signature
hereto, such service being hereby acknowledged by such Grantor to be sufficient
for personal jurisdiction in any action against such Grantor in any such court
and to be otherwise effective and binding service in every respect. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or shall limit the right of the Collateral Agent to bring proceedings
against any Grantor in the courts of any other jurisdiction.
Section 21. Waiver of Jury Trial. EACH OF THE GRANTORS AND COLLATERAL
AGENT HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of
this waiver is intended to be all-encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each of the Grantors and
the Collateral Agent acknowledges that this waiver is a material inducement for
each of the Grantors
10
and the Collateral Agent to enter into a business relationship, that each of the
Grantors and the Collateral Agent has already relied on this waiver in entering
into this Agreement and that each will continue to rely on this waiver in their
related future dealings. Each of the Grantors and the Collateral Agent further
warrants and represents that it has reviewed this waiver with its legal counsel,
and that each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A WRITTEN AMENDMENT
TO THIS AGREEMENT WHICH MAKES SPECIFIC REFERENCE TO THIS SECTION), AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement may
be filed as a written consent to a trial by the court.
Section 22. Miscellaneous. The headings of each section of this Agreement
are for convenience only and shall not define or limit the provisions thereof.
This Agreement and all rights and obligations hereunder shall be binding upon
each Grantor and their respective successors and assigns, and shall inure to the
benefit of the Collateral Agent, the Secured Creditors and their respective
successors and assigns. If any term of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms hereof shall
in no way be affected thereby, and this Agreement shall be construed and be
enforceable as if such invalid, illegal or unenforceable term had not been
included herein. Each Grantor acknowledges receipt of a copy of this Agreement.
Section 22. Termination. Upon the indefeasible payment in full in cash of
all Obligations, the security interests granted hereby shall terminate and all
rights to the Collateral shall revert to the Grantors. Upon any such
termination, the Collateral Agent will promptly execute, if applicable, and
deliver to the Grantors, or authorize the Grantors to prepare and file, as
applicable, such instruments as may be reasonably requested by the Grantors to
evidence such termination, including properly completed UCC-3 Financing
Statements; provided, that all such instruments (including UCC-3 Financing
Statements) shall be prepared by and at the expense of the Grantors.
Section 23. Collateral Agent as Agent. The Collateral Agent has been
appointed to act as Collateral Agent hereunder by the Holders. The Collateral
Agent shall be obligated, and shall have the right hereunder, to make demands,
to give notices, to exercise or refrain from exercising any rights, and to take
or refrain from taking any action (including, without limitation, the release or
substitution of Collateral), solely in accordance with this Agreement and the
Note and Warrant Purchase Agreement and upon the instructions of the Holders,
who by their acceptance of the benefits of this Agreement and the other
Transaction Documents, hereby agree to be bound by such instructions.
Section 24. Notices. All notices and other communications called for
hereunder shall be made in writing and, unless otherwise specifically provided
herein, shall be deemed to have been duly made or given when delivered by hand
or mailed first class, postage prepaid, or, in the case of telegraphic or
telexed notice, when transmitted, answer back received, addressed as follows: if
to the Grantors, at the address set forth beneath their signatures hereto, and
if to the Collateral
11
Agent, at the address set forth beneath its signature below, or at such address
as either party may designate in writing to the other.
Section 25. Amendments and Waivers. No amendment or waiver of any
provision of this Agreement nor consent to any departure by any Grantor
therefrom shall be effective unless the same shall be in writing and otherwise
in accordance with the requirements of the Note and Warrant Purchase Agreement.
No failure on the part of Collateral Agent or any other Secured Creditor to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
[Signatures begin on next page]
12
IN WITNESS WHEREOF, intending to be legally bound, each Grantor has caused
this Security Agreement to be duly executed as of the date first above written.
ARTISTDIRECT, INC., a Delaware MEDIADEFENDER, INC., a Delaware
corporation corporation
By: /s/ Robert N. Weingarten By: /s/ Octavio Herrera
------------------------------ ---------------------------------
Name: Robert N. Weingarten Name: Octavio Herrera
Title: Chief Financial Officer Title: Secretary
Notice Address: Notice Address:
c/o ARTISTdirect, Inc. MediaDefender, Inc.
10900 Wilshire Boulevard 4505 Glencoe Avenue
Los Angeles, CA 90024 Marina Del Ray, CA 90292
Attention: Jonathan Diamond Attention: Chief Executive Officer
Telephone: (310) 443-5360 Telephone: (310) 306-9110
Facsimile: (310) 443-5361 Facsimile: (310) 306-9869
ARTISTDIRECT INTERNET GROUP, INC., ARTISTDIRECT DIGITAL, INC., a Delaware
a Delaware corporation corporation
By: /s/ Robert N. Weingarten By: /s/ Robert N. Weingarten
------------------------------ ------------------------------
Name: Robert N. Weingarten Name: Robert N. Weingarten
Title: Secretary Title: Secretary
Notice Address: Notice Address:
c/o ARTISTdirect Internet Group, Inc. c/o ARTISTdirect Digital, Inc.
10900 Wilshire Boulevard 10900 Wilshire Boulevard
Los Angeles, CA 90024 Los Angeles, CA 90024
Attention: Jonathan Diamond Attention: Jonathan Diamond
Telephone: (310) 443-5360 Telephone: (310) 443-5360
Facsimile: (310) 443-5361 Facsimile: (310) 443-5361
S-1
Accepted:
U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
By: /s/ Brad E. Scarbrough
----------------------------------
Name: Brad E. Scarbrough
Title: Vice President
Notice Address:
U.S. Bank National Association
633 West Fifth Street, 24th Floor
Los Angeles, CA 90071
Attention: Corporate Trust Services
(ARTISTdirect, Inc. 2005 Security Agreement)
With a copy to:
S-2
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On July 24, 2005, before me, Sharon Rose Hatch, a notary public in
and for said State, personally appeared Robert N. Weingarten, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Sharon Rose Hatch
----------------------------
(Seal)
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On July 25, 2005, before me, Samuel Ron Young, a notary public in
and for said State, personally appeared Octavio Herrera, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Samuel Ron Young
----------------------------
(Seal)
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
On July 22, 2005, before me, Regina T. Lumanlan, a notary public in
and for said State, personally appeared Brad E. Scarbrough, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Regina T. Lumanlan
----------------------------
(Seal)
N-1
Exhibit A
To Security Agreement
Form of Perfection Certificate
[NAME OF COMPANY]
The undersigned, the ________________ of _________________________,
a ______________________ (the "Grantor"), hereby certifies, with reference to a
certain Security Agreement dated as of July 28, 2005 (terms defined in such
Security Agreement having the same meanings herein as specified therein), among
the Grantor, certain affiliates of the Grantor and U.S. Bank National
Association, as Collateral Agent (the "Collateral Agent"), for itself and the
holders of the Notes (the "Holders") which are or may become parties to that
certain Note and Warrant Purchase Agreement dated as of July 28, 2005 (as may be
amended, restated, supplemented or otherwise modified from time to time, and any
replacement or refinancing thereof, the "Note and Warrant Purchase Agreement"),
among ARTISTDirect, Inc. (the "Company"), and the Holders:
1. Name. The exact legal name of the Grantor as that name appears on
its Articles of Incorporation is as follows:
2. Other Identifying Factors.
2.1 The following is a mailing address for the Grantor: [address]
2.2. If different from its indicated mailing address, the Grantor's place
of business or, if more than one, its chief executive office, is located at the
following address: [address]
2.3. The following is the type of organization of the Grantor:
2.4. The following is the jurisdiction of the Grantor's organization:
2.5. The following is the Grantor's state issued organizational
identification number [state "None" if the state does not issue such a number]:
3. Other Names, etc.
3.1. The following is a list of every business or organization to which
the Grantor became the successor by merger, consolidation, acquisition of
assets, change in form, nature or jurisdiction of organization or otherwise, now
or at any time during the past five years:
3.2. The following is a list of all other names (including trade names or
similar appellations) used by the Grantor, or any of the businesses or
organizations described in Section 3.1:
A-1
4. Other Current Locations.
4.1. The following are all locations in the United States of America in
which the Grantor maintains any books or records relating to any of the
Collateral consisting of accounts, instruments, chattel paper, general
intangibles or mobile goods:
Address County State & Zip Code
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
4.2. The following are all places of business of the Grantor in the
United States of America:
Address County State & Zip Code
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
4.3. The following are all locations in the United States of America
where any of the Collateral consisting of inventory or equipment is located:
Address County State & Zip Code
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
4.4. The following are the names and addresses of all persons or entities
other than the Grantor, such as lessees, consignees, warehousemen or purchasers
of chattel paper, which have possession or are intended to have possession of
any of the Collateral consisting of instruments, chattel paper, inventory or
equipment:
Name Street Address City, State & Zip Code
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
4.5. The following are all places of business of the Grantor outside the
United States of America:
Address Country
- -------------------------------------------- ------------------------
- -------------------------------------------- ------------------------
- -------------------------------------------- ------------------------
- -------------------------------------------- ------------------------
- -------------------------------------------- ------------------------
- -------------------------------------------- ------------------------
A-2
5. Prior Locations.
5.1. The following are all locations or places of business previously
maintained by the Grantor at any time during the past five years in a state in
which the Grantor has previously maintained a location or place of business at
any time during the past four months:
Address County State & Zip Code
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
5.2. The following are all locations at which, or other person or entity
with which, any of the Collateral consisting of inventory or equipment has been
previously held at any time during the past twelve months:
Address County State & Zip Code
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
- ---------------------- ------------------------- ------------------------
6. Fixtures. Attached hereto as Schedule 6 is (i) the information
required by Uniform Commercial Code Section 9-502(b) of each state in which any
of the Collateral consisting of fixtures are or are to be located and (ii) the
name and address of each real estate recording office where a mortgage on the
real estate on which such fixtures are or are to be located would be recorded.
7. Unusual Transactions. Except for those purchases, acquisitions and
other transactions described in Section 3.1 or on Schedule 7 attached hereto,
all of the Collateral (i) has been originated by the Grantor in the ordinary
course of the Grantor's business or (ii) consists of goods which have been
acquired by the Grantor in the ordinary course from a person in the business of
selling goods of that kind.
8. Intellectual Property. Attached hereto as Schedule 8 is a complete
list of all patents, copyrights, trademarks, trade names and service marks
registered or for which applications are pending in the name of the Grantor.
[signature page follows]
A-3
IN WITNESS WHEREOF, I have hereunto signed this Certificate on this ____
day of ____________, 2005.
_________________________________
Name:
Title
A-4