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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
SCHEDULE 13D
Under the Securities Exchange Act of 1934
CDnow, Inc.
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(Name of Issuer)
Common Stock, without par value
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(Title of Class of Securities)
125085100
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(CUSIP Number)
Christopher P. Bogart, Esq. Teruhisa Tokunaka
General Counsel Senior Managing Director and
Time Warner Inc. Chief Financial Officer
75 Rockefeller Plaza Sony Corporation
New York, New York 10019 6-7-35 Kitashinagawa
(212) 484-8000 Shinagawa-ku, Tokyo 141-0001 Japan
81-3-5448-2111
with copies to: with copies to:
<TABLE>
<S> <C> <C> <C>
Faiza J. Saeed, Esq. Robert Schumer, Esq. Morton A. Pierce, Esq. Lisa Weiss, Esq.
Cravath, Swaine, & Moore Paul, Weiss, Rifkind, Wharton Dewey Ballantine LLP Rosenman & Colin LLP
825 Eighth Avenue & Garrison 1301 Avenue of the Americas 575 Madison Avenue
New York, New York 10019 1285 Avenue of the Americas New York, New York 10019 New York, New York 10022
(212) 474-1454 New York, New York 10019 (212) 259-8000 (212) 940-8800
(212) 373-3097
</TABLE>
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 13, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
checkthe following box.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 240.13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following pages)
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Page 1 of 19
<PAGE>
CUSIP No. 125085100
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TIME WARNER INC.
IRS. No.: 13-3527249
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(See Instructions) (b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
NUMBER OF 1,500,000*
SHARES ---------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 1,202,750**
REPORTING ---------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
1,500,000*
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,202,750**
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,702,750*'**
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
(See Instructions) [_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5%
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14 TYPE OF REPORTING PERSON*
CO
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- ---------
* Pursuant to a Convertible Loan Agreement dated as of July 12, 1999
(the "Convertible Loan Agreement"), between CDnow, Inc. ("CDnow"), as
borrower, and Sony Music Entertainment Inc. ("Sony Music") and Time Warner
Inc. ("Time Warner"), as lenders, Time Warner and Sony Music agreed to make
term loans to CDnow in an amount not to exceed the loan commitment under the
Convertible Loan Agreement. Each of Time Warner and Sony Music, at its sole
option, at any time and from time to time, has the right to convert all
outstanding loans it has made pursuant to the Convertible Loan Agreement, and
any accrued and unpaid interest on the loans, into shares of common stock of
CDnow. Assuming that Time Warner makes loans to CDnow in the full amount of
its loan commitment, based on the conversion price currently in effect, Time
Warner would have the right to acquire beneficial ownership of 1,500,000
shares of common stock of Cdnow.
** On March 16, 2000, TWI CDNow Holdings Inc., a wholly owned
subsidiary of Time Warner, purchased 1,202,750 shares of CDnow common stock
from CDnow.
Page 2 of 19
<PAGE>
CUSIP No. 125085100
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SONY CORPORATIOM OF AMERICA.
IRS. No.: 13-1914724
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(See Instructions) (b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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7 SOLE VOTING POWER
NUMBER OF 2,702,750*
SHARES ---------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH
REPORTING ---------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
2,702,750*
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,702,750*
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
(See Instructions) [_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5%
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14 TYPE OF REPORTING PERSON*
CO
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---------
* Sony Corporation of America is the parent corporation of
Sony Music Entertainment Inc. ("Sony Music"). Pursuant to a Convertible Loan
Agreement dated as of July 12, 1999 (the "Convertible Loan Agreement"),
between CDnow, Inc. ("CDnow"), as borrower, and Sony Music and Time Warner Inc.
"Time Warner"), as lenders, Sony Music and Time Warner agreed to make term loans
to CDnow in an amount not to exceed the loan commitment under the Convertible
Loan Agreement. Each of Sony Music and Time Warner, at its sole option, at any
time and from time to time, has the right to convert all outstanding loans it
has made pursuant to the Convertible Loan Agreement, and any accrued and unpaid
interest on the loans, into shares of common stock of CDnow. Assuming that Sony
Music makes loans to CDnow in the full amount of its loan commitment, based on
the conversion price currently in effect, Sony Music would have the right to
acquire beneficial ownership of 1,500,000 shares of common stock of CDnow. On
March 16, 2000, Sony Music purchased 1,202,750 shares of CDnow Common Stock
from Cdnow.
Page 3 of 19
<PAGE>
CUSIP No. 125085100
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
SONY CORPORATION
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(See Instructions) (b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Japan
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7 SOLE VOTING POWER
NUMBER OF 2,702,750*
SHARES ---------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH
REPORTING ---------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
2,702,750*
---------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,702,750*
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
(See Instructions) [_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5%
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14 TYPE OF REPORTING PERSON*
CO
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- ---------
* Sony Corporation is the parent corporation of Sony Music Entertainment
Inc. ("Sony Music"). Pursuant to a Convertible Loan Agreement dated as of
July 12, 1999 (the "Convertible Loan Agreement"),between CDnow, Inc. ("CDnow"),
as borrower, and Sony Music and Time Warner Inc. "Time Warner"), as lenders,
Sony Music and Time Warner agreed to make term loans to CDnow in an amount not
to exceed the loan commitment under the Convertible Loan Agreement. Each of
Sony Music and Time Warner, at its sole option, at any time and from time to
time, has the right to convert all outstanding loans it has made pursuant to
the Convertible Loan Agreement, and any accrued and unpaid interest on the
loans, into shares of common stock of CDnow. Assuming that Sony Music makes
loans to CDnow in the full amount of its loan commitment, based on the
conversion price currently in effect, Sony Music would have the right to
acquire beneficial ownership of 1,500,000 shares of common stock of CDnow. On
March 16, 2000, Sony Music purchased 1,202,750 shares of CDnow Common Stock
from Cdnow.
Page 4 of 19
<PAGE>
This Amendment No. 1 to the Statement on Schedule 13D filed by Time
Warner Inc., Sony Corporation of America and Sony Corporation with the
Securities and Exchange Commission on July 22, 1999 (the "Original
Statement"), with respect to the common stock, without par value, of CDnow,
Inc., amends and restates the Original Statement in its entirety.
Item 1. Security and Issuer.
--------------------
This statement relates to the common stock, without par value (the
"CDnow Common Stock"), of CDnow, Inc., a Pennsylvania corporation ("CDnow").
The principal executive offices of CDnow are located at 1005 Virginia Drive,
Fort Washington, Pennsylvania 19034.
Item 2. Identity and Background.
------------------------
This statement is being filed by Time Warner Inc., a Delaware
corporation ("Time Warner"), Sony Corporation of America, a New York
corporation ("SCA"), and Sony Corporation, a Japanese corporation ("Sony",
and, together with Time Warner and SCA, the "Reporting Persons"). Pursuant to
Rule 13d-1(k) under the Securities Exchange Act of 1934 (the "Exchange Act"),
the Reporting Persons have agreed to file jointly one statement with respect
to their ownership of CDnow Common Stock, and this joint statement of the
Reporting Persons is hereinafter referred to as the "Statement".
Time Warner has its principal executive offices at 75 Rockefeller
Plaza, New York, New York 10019. Time Warner is a holding company engaged in
the media and entertainment business. Its businesses are carried on in six
fundamental areas:
o cable networks, consisting principally of interests in cable
television programming;
o publishing, consisting principally of interests in magazine
publishing, book publishing and direct marketing;
o music, consisting principally of interests in recorded music and
music publishing;
o filmed entertainment, consisting principally of interests in
filmed entertainment, television production and television
broadcasting;
o cable, consisting principally of interests in cable television
systems; and
o digital media, consisting principally of interests in
Internet-related and digital media businesses.
SCA, the United States headquarters of, and a wholly owned
subsidiary of, Sony, has its principal executive offices at 550 Madison
Avenue, New York, New York 10022. The principal business of SCA is the
manufacture and sale, through its subsidiaries, of audio, video,
communications and information technology products for the consumer and
professional markets, and the music, motion picture, television and online
entertainment businesses.
Sony has its principal executive offices at 6-7-35 Kitashinagawa,
Shinagawa-ku, Tokyo 141-0001 Japan. The principal business of Sony Corporation
is the development, design, manufacture and sale of various kinds of
electronic equipment, instruments and devices for consumer and professional
markets.
Page 5 of 19
<PAGE>
The name, business address, present principal occupation or
employment, name, principal business and address of any corporation or other
organization in which such employment is conducted and the citizenship of each
director and executive officer of each of the Reporting Persons is set forth
in Annex A, B or C, as the case may be, and Annexes A, B and C are
incorporated herein by reference.
None of the Reporting Persons nor, to the best knowledge of the
Reporting Persons, any person listed in Annex A, B or C, as appropriate, has
been convicted during the last five years in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
On July 12, 1999, Time Warner and Sony Music Entertainment Inc., a
Delaware corporation and a wholly owned subsidiary of SCA ("Sony Music"),
entered into a convertible loan agreement (the "Convertible Loan Agreement)
with CDnow. Pursuant to the Convertible Loan Agreement, each of Time Warner
and Sony Music, as lenders, agreed to make term loans to CDnow, as borrower,
in an amount not to exceed the loan commitment under the Convertible Loan
Agreement. The loan commitment under the Convertible Loan Agreement is
$30,000,000; provided that in no event will the loan commitment of either Time
Warner or Sony Music exceed $15,000,000. Each of Time Warner and Sony Music
have used, and intend to continue to use, working capital as the source of the
funds for loans made to CDnow under the Convertible Loan Agreement. Each of
Time Warner and Sony Music, at its sole option, at any time and from time to
time, has the right to convert all loans made by it under the Convertible Loan
Agreement, and any accrued and unpaid interest on the loans, into shares of
CDnow Common Stock. For a more detailed description of the Convertible Loan
Agreement, see the response provided in Item 4.
On March 13, 2000, Time Warner and SCA entered into a Termination
Agreement (the "Termination Agreement") with CDnow, Delaware Holdco
Corporation, a Delaware corporation and a wholly owned subsidiary of CDnow
("Holdco"), Pennsylvania Subsidiary, Inc., a Pennsylvania corporation and a
wholly owned subsidiary of Holdco ("Pennsylvania Subsidiary"), Delaware Sub I
L.L.C., a Delaware limited liability company and a wholly owned subsidiary of
Holdco ("Delaware Sub I"), Delaware Sub II, a Delaware limited liability
company and a wholly owned subsidiary of Holdco ("Delaware Sub II"), and
certain individuals who are party to the Termination Agreement. Pursuant to
the Termination Agreement, Time Warner and SCA agreed to purchase, or to cause
one or more of their respective subsidiaries to purchase, and CDnow agreed to
sell to Time Warner and SCA, or one or more of their respective subsidiaries,
an aggregate of 2,405,500 shares of CDnow Common Stock for an aggregate
purchase price of $21,000,000. On March 16, 2000, Time Warner purchased from
CDnow, on behalf of TWI CDNow Holdings Inc., a Delaware corporation and a
wholly owned subsidiary of Time Warner ("TWI CDNow Holdings"), for a purchase
price of $10,500,000, 1,202,750 shares of CDnow Common Stock, and SCA caused
Sony Music to purchase from CDnow, for a purchase price of $10,500,000,
1,202,750 shares of CDnow Common Stock. For each of Time Warner and Sony
Music, working capital was the source of the funds used for payment of the
purchase price for the shares of CDnow Common Stock. For a more detailed
description of the Termination Agreement, see the response provided in Item 4.
Page 6 of 19
<PAGE>
Item 4. Purpose of Transaction.
-----------------------
On July 12, 1999, Time Warner, SCA, CDnow, Holdco, Pennsylvania
Subsidiary, Delaware Sub I and Delaware Sub II entered into an Agreement of
Merger and Contribution (the "Merger Agreement") providing for, among other
things, the combination of the businesses of The Columbia House Company, a New
York general partnership that is owned equally by a subsidiary of Time Warner
and Sony Music, and CDnow on the terms and subject to the conditions set forth
in the Merger Agreement. To facilitate the consummation of the transactions
contemplated by the Merger Agreement, Time Warner, SCA and CDnow entered into
a Stock Option Agreement dated as of July 12, 1999 (the "Stock Option
Agreement"), pursuant to which CDnow granted to Time Warner and SCA (to be
shared equally by them) an irrevocable option, exercisable upon the happening
of certain events, to purchase up to 4,431,721 shares of CDnow Common Stock at
a purchase price per share of $17.9869 (subject to adjustment). In addition,
Time Warner, SCA and several principal shareholders of CDnow (which principal
shareholders collectively held 7,257,002 shares of CDnow Common Stock as of
July 12, 1999) entered into the CDnow, Inc. Shareholder Agreement dated as of
July 12, 1999 (the "Shareholder Agreement"), pursuant to which each of the
principal shareholders agreed to vote all such principal shareholder's shares
of CDnow Common Stock in favor of the transactions contemplated by the Merger
Agreement and against any alternative transaction.
In connection with the execution and delivery of the Merger
Agreement, the Stock Option Agreement and the Shareholder Agreement, Time
Warner, Sony Music and CDnow executed and delivered the Convertible Loan
Agreement. Pursuant to the Convertible Loan Agreement, each of Time Warner and
Sony Music agreed to make term loans to CDnow, at any time and from time to
time during the period from December 16, 1999 to the earliest to occur of (x)
the time that the loan commitment is reduced to zero in accordance with the
terms of the Convertible Loan Agreement, (y) January 15, 2001 and (z) the
effective time of the transactions contemplated by the Merger Agreement (such
date, the "Final Maturity Date") in an amount not to exceed the loan
commitment under the Convertible Loan Agreement. The loan commitment under the
Convertible Loan Agreement is $30,000,000; provided that in no event will the
loan commitment of either Time Warner or Sony Music exceed $15,000,000.
Interest in respect of the unpaid principal amount of each loan outstanding
under the Convertible Loan Agreement accrues from the date of the making of
the loan until the earlier of the date on which the loan is repaid in full and
the Final Maturity Date and is payable on the Final Maturity Date. Each of
Time Warner and Sony Music, at its sole option, at any time and from time to
time, has the right to convert all outstanding loans it has made pursuant to
the Convertible Loan Agreement, and any accrued and unpaid interest on such
loans, into shares of CDnow Common Stock. Each of Time Warner and Sony Music
also has the right, subject to certain limitations, to request that CDnow
effect the registration under the Securities Act of 1933 of all shares of
CDnow Common Stock issued upon conversion of any loan, or any accrued and
unpaid interest on any loan.
On March 13, 2000, Time Warner, SCA, CDnow, Holdco, Pennsylvania
Sub, Delaware Sub I, Delaware Sub II and certain individuals who are party to
the Termination Agreement entered into the Termination Agreement. In the
Termination Agreement, each of Time Warner, SCA and CDnow mutually consent to
terminate the Merger Agreement. The termination of the Merger Agreement caused
the option granted under the Stock Option Agreement to terminate and be of no
further force and effect. In addition, the termination of the Merger Agreement
constitutes an automatic termination of the Shareholder Agreement.
Pursuant to the Termination Agreement, each of Time Warner and CDnow
agreed to, and SCA agreed to cause Sony Music to, enter into an Amendment to
the Convertible Loan Agreement (the "Amendment"). The Amendment provides,
among other things, (i) for the term "Final Maturity Date" to mean the earlier
to occur of (x) the time that the loan commitment is reduced to zero in
accordance with the terms of the Convertible Loan Agreement and (y) January
15, 2003, (ii) for the interest rate in respect of the unpaid principal amount
of each loan outstanding under the Convertible Loan Agreement to be the London
interbank offered rate, commonly referred to as "LIBOR", plus 3% and (iii) for
the conversion price for converting outstanding loans made pursuant to the
Convertible
Page 7 of 19
<PAGE>
Loan Agreement, and any accrued and unpaid interest on such loans, into shares
of CDnow Common Stock to be $10.00 per share of CDnow Common Stock (subject to
customary anti-dilution adjustments). In addition, each of Time Warner and
CDnow agreed to, and SCA agreed to cause Sony Music to, enter into a Consent
(the "Consent") in respect of the Guarantee and Collateral Agreement dated as
of December 9, 1999, made by CDnow in favor of Time Warner, as Security Agent
for Time Warner and Sony Music as lenders under the Convertible Loan Agreement
(the "Security Agent"). The Consent provides for the release of certain
collateral pledged to the Security Agent as security for loans made by Time
Warner and Sony Music to CDnow pursuant to the Convertible Loan Agreement.
In addition, pursuant to the Termination Agreement, on March 16,
2000, Time Warner purchased from CDnow, on behalf of TWI CDNow Holdings, for a
purchase price of $10,500,000, 1,202,750 shares of CDnow Common Stock, and SCA
caused Sony Music to purchase from CDnow, for a purchase price of $10,500,000,
1,202,750 shares of CDnow Common Stock (all such shares of CDnow Common Stock
purchased pursuant to the Termination Agreement, collectively the "Purchased
Shares"). The Termination Agreement provides that each of Time Warner and SCA,
and any of their respective subsidiaries who hold Purchased Shares, shall have
registration rights with respect to the Purchased Shares that are identical to
the registration rights provided under the Convertible Loan Agreement in
respect of any shares of CDnow Common Stock issued upon conversion of any
loans, or any accrued and unpaid interest on any loans, made by Time Warner or
Sony Music pursuant to the Convertible Loan Agreement. The Termination
Agreement further provides that Time Warner and Sony, and any of their
respective subsidiaries who hold shares of CDnow Common Stock, acting as one
group, shall be entitled, but shall not be required, at any time and from time
to time, to designate one individual (the "Designee") to serve as a member of
the Board of Directors of CDnow. The right of Time Warner and SCA, and any of
their respective subsidiaries who hold shares of CDnow Common Stock, to
designate the Designee shall terminate whenever the total number of shares of
CDnow Common Stock held by Time Warner, Sony or any of their respective
subsidiaries shall be less than 50% of the number of shares constituting the
Purchased Shares (subject to customary anti-dilution adjustments).
The description of the terms of each of the Termination Agreement,
the Convertible Loan Agreement, the Amendment and the Consent set forth in this
Statement are qualified in their entirety by reference to the terms of the
appropriate agreement.
Although none of the Reporting Persons has a present intention to
acquire additional shares of CDnow Common Stock or to dispose of shares of
CDnow Common Stock beneficially owned by such Reporting Person, any of the
Reporting Persons, acting alone or separately, may in the future acquire
beneficial ownership of additional shares of CDnow Common Stock or dispose of
shares of CDnow Common Stock beneficially owned by such Reporting Person, in
any case in the open market or in negotiated a transaction.
Page 8 of 19
<PAGE>
Item 5. Interest in Securities of the Issuer.
-------------------------------------
Under the Convertible Loan Agreement, each of Time Warner and Sony
Music, as lenders, agreed to make term loans to CDnow, as borrower, in an
amount not to exceed the loan commitment under the Convertible Loan Agreement.
The loan commitment under the Convertible Loan Agreement is $30,000,000;
provided that in no event will the loan commitment of either Time Warner or
Sony Music exceed $15,000,000. Each of Time Warner and Sony Music, at its sole
option, at any time and from time to time, has the right to convert all
outstanding loans made by it under the Convertible Loan Agreement, and any
accrued and unpaid interest on the loans, into shares of CDnow Common Stock at
a conversion price of $10.00 per share (subject to customary anti-dilution
adjustments).
In addition, pursuant to the Termination Agreement, on March 16,
2000, Time Warner purchased from CDnow, on behalf of TWI CDNow Holdings, for a
purchase price of $10,500,000, 1,202,750 shares of CDnow Common Stock, and SCA
caused Sony Music to purchase from CDnow, for a purchase price of $10,500,000,
1,202,750 shares of CDnow Common Stock.
As a result of these transactions:
(i) assuming that Time Warner makes loans to CDnow in the full
amount of its loan commitment, based on the conversion price
currently in effect, Time Warner would have the right to acquire
beneficial ownership of 1,500,000 shares of common stock of CDnow,
representing approximately 4.7% of the outstanding shares of CDnow
Common Stock; and
(ii) Time Warner is deemed to beneficially own 1,202,750 shares
of CDnow Common Stock, representing approximately 3.8% of the
outstanding shares of CDnow Common Stock, held by TWI CDNow Holdings
(assuming the issuance of 1,500,000 shares of CDnow Common Stock to
Time Warner pursuant to the Convertible Loan Agreement).
Upon issuance, Time Warner would have sole power to vote, and sole
power to dispose of, 1,500,000 shares of CDnow Common Stock. Time Warner may be
deemed to share the power to vote, and the power to dispose of, 1,202,750
shares of CDnow Common Stock owned by TWI CDNow Holdings.
In addition,
(i) assuming that Sony Music makes loans to CDnow in the full
amount of its loan commitment, based on the conversion price
currently in effect, Sony Music would have the right to acquire
beneficial ownership of 1,500,000 shares of common stock of CDnow,
representing approximately 4.7% of the outstanding shares of CDnow
Common Stock; and
(ii) Sony Music beneficially owns 1,202,750 shares of CDnow
Common Stock, representing approximately 3.8% of the outstanding
shares of CDnow Common Stock (assuming the issuance of 1,500,000
shares of CDnow Common Stock to Sony Music pursuant to the
Convertible Loan Agreement).
Sony Music has the power to vote, and the power to dispose of, 2,702,750
shares of CDnow Common Stock. Sony and SCA are deemed beneficial owners of
2,702,750 shares of CDnow Common Stock through Sony Music.
Except as described herein, none of the Reporting Persons, nor, to
the best knowledge of the Reporting Persons, any person listed in Annex A, B
or C, as appropriate, beneficially owns, or has acquired or disposed of, any
shares of CDnow Common Stock during the past 60 days.
Page 9 of 19
<PAGE>
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
---------------------------------------------------------------------
to Securities of the Issuer.
---------------------------
Except as described in Item 3, 4 or 5 of this Statement, none of the
Reporting Persons, nor, to the best knowledge of the Reporting Persons, any
person listed in Annex A, B or C, as appropriate, has any contract,
arrangement, understanding or relationship (legal or otherwise) with any
person with respect to any securities of CDnow, including, but not limited to,
the transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or losses, or the giving or withholding of proxies.
Item 7. Material to Be Filed as Exhibits.
---------------------------------
Exhibit Number Description
- ------------- ------------
1 Termination Agreement dated as of March 13, 2000, among
Time Warner Inc., Sony Corporation of America, CDnow,
Inc., Delaware Holdco Corporation, Pennsylvania
Subsidiary, Inc., Delaware Sub I L.L.C., Delaware Sub II
L.L.C. and the individuals party thereto.
2 Convertible Loan Agreement dated as of July 12, 1999,
between CDnow, Inc., as Borrower, and Sony Music
Entertainment Inc. and Time Warner Inc., as lenders.
Amendment Dated as of March 13, 2000, to the Convertible
3 Loan Agreement dated as of July 12, 1999, among CDnow,
Inc., as borrower, and Sony Music Entertainment Inc. and
Time Warner Inc., as lenders.
4 Consent dated as of March 13, 2000 in respect of the
Guarantee and Collateral Agreement dated as of January 21,
2000, made by CDnow (the "Borrower") and the parties
identified therein in favor of Time Warner Inc., as
Security Agent for Time Warner Inc. and Sony Music
Entertainment Inc. (the "Lenders) under the Convertible
Loan Agreement dated as of July 12, 1999, among the
Borrower and the Lenders. 5
5 Joint Filing Agreement dated July 22, 1999, among Time
Warner Inc., Sony Corporation of America and Sony
Corporation (incorporated herein by reference to Exhibit 8
to the Statement on Schedule 13D filed by Time Warner
Inc., Sony Corporation of America and Sony Corporation
with the Securities and Exchange Commission on July 22,
1999).
Page 10 of 19
<PAGE>
Signature
----------
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete
and correct.
Date: March 22, 2000
TIME WARNER INC.,
by:/s/ Spencer B. Hays
---------------------------
Name: Spencer B. Hays
Title: Vice President
SONY CORPORATION OF AMERICA,
by: /s/ M. N. Henny
---------------------------
Name: M. N. Henny
Title: Executive Vice President
SONY CORPORATION,
by:/s/ Teruhisa Tokunaka
---------------------------
Name: Teruhisa Tokunaka
Title: Senior Managing Director
and Chief Financial
Officer
Page 11 of 19
<PAGE>
ANNEX A
Directors and Executive Officers of Time Warner Inc.
The names and present principal occupations of the directors and
executive officers of Time Warner Inc. are set forth below. Unless otherwise
indicated, all directors and officers listed below are citizens of the United
States.
Principal Occupation or
Name Office Employment and Address
- ---- ------ ----------------------
Merv Adelson Director Chairman
East-West Capital Associates
10900 Santa Monica Blvd.
Los Angeles, CA 90024
(private investment company)
Christopher P. Executive Vice Executive Vice President,
Bogart* President, General Counsel and Secretary
General Counsel Time Warner Inc.**
and Secretary
Timothy A. Senior Vice Senior Vice President
Boggs President Time Warner Inc.
800 Connecticut Ave., NW, Suite 800
Washington, DC 20006
J. Carter Bacot Director Retired Chairman and
Chief Executive Officer
The Bank of New York
Company, Inc.
One Wall Street
New York, NY 10286
Stephen F. Director President and Chief
Bollenbach Executive Officer
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
Richard J. Executive Executive Vice President
Bressler Vice President Time Warner Inc.**
John C. Director Partner
Danforth Bryan Cave LLP
1 Metropolitan Square
211 North Broadway
St. Louis, MO 63102-2750
(law firm)
700 13th Street, N.W.
Washington, DC 20005-3960
Beverly Sills Director Chairman
Greenough Lincoln Center for the Performing Arts
70 Lincoln Center Plaza
New York, NY 10023
(entertainment)
Page 12 of 19
<PAGE>
Gerald Greenwald Director Chairman Emeritus
UAL Corporation
P.O. Box 66100
Chicago, IL 66100
Carla A. Hills Director Chairman and Chief
Executive Officer
Hills & Company
1200 19th Street, NW
Washington, DC 20036
(international trade
consultants)
Andrew J. Kaslow Senior Vice Senior Vice President
President Time Warner Inc.**
John A. LaBarca Senior Vice Senior Vice President,
President, Financial Operations
Financial Time Warner Inc.**
Operations
Gerald M. Levin Director, Chairman and Chief
Chairman and Executive Officer,
Chief Executive Time Warner Inc.**
Officer
Reuben Mark Director Chairman and Chief
Executive Officer
Colgate-Palmolive Company
300 Park Avenue
New York, NY 10022
(consumer products)
Michael A. Miles Director Former Chairman and
Chief Executive Officer
Philip Morris
Companies Inc.
1350 Lake Road
Lake Forest, IL 60045
Richard D. Director Director and President
Parsons and President Time Warner Inc.**
Joseph A. Executive Vice Executive Vice President
Ripp President and and Chief Financial Officer
Chief Financial Time Warner Inc.**
Officer
Joan N. Senior Vice Senior Vice President
Sumner President Time Warner Inc.**
Robert E. Director and Vice Chairman
Turner Vice Chairman Time Warner Inc.
One CNN Center
Atlanta, GA 30303
Page 13 of 19
<PAGE>
Francis T. Director Chairman
Vincent, Jr. Vincent Enterprises
290 Harbor Drive
Stamford, CT 06902
(private investor)
* Citizen of Canada.
** The business address of Time Warner Inc.is 75 Rockefeller Plaza,
New York, NY 10019.
Page 14of 19
<PAGE>
ANNEX B
Directors and Executive Officers of Sony Corporation of America
The names and present principal occupations of the directors and
executive officers of Sony Corporation of America are set forth below. Unless
otherwise indicated, all directors and officers listed below are citizens of
the United States.
Principal Occupation or
Name Office Employment and Address
- ----- ------ -----------------------
Nobuyuki Idei* Chairman of the President and Representative
Board Director; Chief Executive Officer
Sony Corporation**
Norio Ohga* Director Chairman and Representative Director
Sony Corporation**
Tsunao Hashimoto* Director Chairman
Sony Life Insurance Co., Ltd.
1-1 Minami Aoyama 1-Chome, Minato-ku
Tokyo 107-8585 Japan
Tamotsu Iba* Director Executive Deputy President and
Representative Director Overseas
Financial business, Broadcasting
business and Computer Entertainment
business Sony Corporation**
Howard Stringer*** Chairman and Chief Chairman and Chief Executive Officer;
Executive Officer; President Sony Corporation of
President America****
Teruo Masaki* Director Senior Managing Director
Overseas Legal matters and
Telecommunications business
Sony Corporation**
Peter G. Peterson Director Chairman
The Blackstone Group
345 Park Avenue
New York, NY 10154
H. Paul Burak Director Partner
Rosenman & Colin LLP
575 Madison Avenue
New York, NY 10022
Teruhisa Tokunaka* Director Senior Managing Director
and Chief Financial Officer
Sony Corporation**
Marinus N. Henny Executive Vice Executive Vice President and
President Chief Financial Officer
and Chief Financial Sony Corporation of America****
Officer
Yang Hun Lee***** Executive Vice Executive Vice President
President Sony Corporation of America****
Steven E. Kober Senior Vice Senior Vice President and Controller
President Sony Corporation of America****
and Controller
Page 15 of 19
<PAGE>
Kenneth L. Nees Senior Vice Senior Vice President and Secretary
President Sony Corporation of America****
and Secretary
J. Michael Suffredini Senior Vice Senior Vice President and Treasurer
President Sony Corporation of America****
and Treasurer
Karen Halby Vice President Vice President
Sony Corporation of America****
Atsuko Murakami* Assistant Treasurer Assistant Treasurer
Sony Corporation of America****
Craig R. Torrie Assistant Treasurer Assistant Treasurer
Sony Corporation of America****
* Citizen of Japan.
** The business address of Sony Corporation is 6-7-35 Kitashinagawa,
Shinagawa-ku,Tokyo 141-0001 Japan.
*** Citizen of the United Kingdom.
**** The business address of Sony Corporation of America is 550 Madison
Avenue,New York, New York 10022.
***** Citizen of Republic of Korea.
Page 16 of 19
<PAGE>
ANNEX C
Directors and Executive Officers of Sony Corporation
The names and present principal occupations of the directors and
executive officers of Sony Corporation are set forth below. Unless otherwise
indicated, all directors and officers listed below are citizens of Japan.
Principal Occupation or
Name Office Employment and Address
- ---- ------ -----------------------
Nobuyuki Idei President and President and Representative
Representative Director; Chief Executive Officer
Director; Chief Sony Corporation*
Executive Officer
Norio Ohga Chairman and Chairman and Representative Director
Representative Sony Corporation*
Director
Minoru Morio Executive Deputy Executive Deputy President and
President and Representative Director Sony
Representative Corporation*
Director
Tamotsu Iba Executive Deputy Executive Deputy President and
President and Representative Director Sony
Representative Corporation*
Director
Teruhisa Tokunaka Senior Managing Senior Managing Director and Chief
Director and Chief Financial Officer Sony Corporation*
Financial Officer
Teruo Masuki Senior Managing Senior Managing Director
Director Sony Corporation*
Howard Stringer** Director Chairman and Chief Executive
Officer; President Sony Corporation
of America***
Peter G. Peterson**** Director Chairman
The Blackstone Group
345 Park Avenue
New York, NY 10154
Kenichi Suematsu Director Advisor
The Sakura Bank
1-3-1 Kudan-minami, Chiyoda-ku
Tokyo 100-8611 Japan
Iwao Nakatani Director Part-time Lecturer
Hitotsubashi University
2-1 Naka, Kunitachi
Tokyo 186-8601 Japan
Akiyoshi Kawashima Corporate Senior Corporate Senior Executive
Executive Vice President
Vice President Sony Corporation*
Suehiro Nakamura Corporate Senior Corporate Senior Executive
Executive Vice President Sony Corporation*
Vice President
Page 17of 19
<PAGE>
Kenichi Oyama Corporate Senior Corporate Senior Executive
Executive Vice President Sony Corporation*
Vice President
Masayoshi Morimoto Corporate Senior Corporate Senior Executive
Executive Vice President
Vice President Sony Corporation*
Shizuo Takashino Corporate Senior Corporate Senior Executive
Executive Vice President Sony Corporation*
Vice President
Kunitake Ande Corporate Senior Corporate Senior Executive
Executive Vice President Sony Corporation*
Vice President
Mario Tokoro Corporate Executive Corporate Executive Vice President
Vice President Sony Corporation*
Sunobu Horigome Corporate Executive Corporate Executive Vice President
Vice President Sony Corporation*
Kenichiro Yonezawa Corporate Senior Corporate Senior Vice President
Vice President Sony Corporation*
Ken Kutaragi Group Executive Group Executive Officer
Officer Sony Corporation*
* The business address of Sony Corporation is 6-7-35 Kitashinagawa,
Shinagawa-ku,Tokyo 141-0001, Japan.
** Citizen of the United Kingdom.
*** The business address of Sony Corporation of America is 550 Madison
Avenue, New York, New York 10022.
**** Citizen of the United States.
Page 18 of 19
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- ------------
1
Termination Agreement dated as of March 13, 2000, among
Time Warner Inc., Sony Corporation of America, CDnow,
Inc., Delaware Holdco Corporation, Pennsylvania
Subsidiary, Inc., Delaware Sub I L.L.C., Delaware Sub II
L.L.C. and the individuals party thereto.
2 Convertible Loan Agreement dated as of July 12, 1999,
between CDnow, Inc., as Borrower, and Sony Music
Entertainment Inc. and Time Warner Inc., as lenders.
Amendment Dated as of March 13, 2000, to the Convertible
3 Loan Agreement dated as of July 12, 1999, among CDnow,
Inc., as borrower, and Sony Music Entertainment Inc. and
Time Warner Inc., as lenders.
4 Consent dated as of March 13, 2000 in respect of the
Guarantee and Collateral Agreement dated as of January 21,
2000, made by CDnow (the "Borrower") andthe parties
identified therein in favor of Time Warner Inc., as
Security Agent for Time Warner Inc. and Sony Music
Entertainment Inc. (the "Lenders) under the Convertible
Loan Agreement dated as of July 12, 1999, among the
Borrower and the Lenders.
5 Joint Filing Agreement dated July 22, 1999, among Time
Warner Inc., Sony Corporation of America and Sony
Corporation (incorporated herein by reference to Exhibit 8
to the Statement on Schedule 13D filed by Time Warner
Inc., Sony Corporation of America and Sony Corporation
with the Securities and Exchange Commission on July 22,
1999).
Page 19 of 19
CONFORMED COPY
TERMINATION AGREEMENT dated as of March 13, 2000, among
TIME WARNER INC., a Delaware corporation ("Time Warner"),
SONY CORPORATION OF AMERICA, a New York corporation
("Sony"), CDNOW, INC., a Pennsylvania corporation ("CDnow"),
DELAWARE HOLDCO CORPORATION, a Delaware corporation and a
direct wholly owned subsidiary of CDnow ("Holdco"),
PENNSYLVANIA SUBSIDIARY, INC., a Pennsylvania corporation
and a direct wholly owned subsidiary of Holdco
("Pennsylvania Sub"), DELAWARE SUB I L.L.C., a Delaware
limited liability company and a direct wholly owned
subsidiary of Holdco ("Delaware Sub I"), DELAWARE SUB II
L.L.C., a Delaware limited liability company and a direct
wholly owned subsidiary of Holdco ("Delaware Sub II"), and
the individuals party to this Termination Agreement.
WHEREAS Time Warner, Sony, CDnow, Holdco, Pennsylvania Sub, Delaware
Sub I and Delaware Sub II have entered into an Agreement of Merger and
Contribution dated as of July 12, 1999 (the "Merger and Contribution
Agreement");
WHEREAS, in connection with the execution and delivery of the Merger
and Contribution Agreement, Warner Music Canada Ltd., a corporation organized
under the laws of Ontario ("Time Warner Canada"), Sony Music Entertainment
(Canada) Inc., a corporation organized under the laws of Canada ("Sony Canada"),
The Columbia House Company (Canada), a general partnership organized under the
laws of Ontario ("Columbia House Canada"), the general partners of which are
Time Warner Canada and Sony Canada, 3030809 Nova Scotia ULC, an unlimited
liability company organized under the laws of Nova Scotia and a direct wholly
owned subsidiary of Columbia House Canada, and Holdco entered into a Master
Canadian Transaction Agreement dated as of July 12, 1999 (the "Master Canadian
Transaction Agreement");
WHEREAS, in connection with the execution and delivery of the Merger
and Contribution Agreement, Time Warner, Sony and the certain shareholders of
CDnow entered into the CDnow, Inc. Shareholders Agreement dated as of July 12,
1999 (the "CDnow Shareholder Agreement");
WHEREAS, in connection with the execution and delivery of the Merger
and Contribution Agreement, Time
<PAGE>
2
Warner, Sony and CDnow entered into a Stock Option Agreement dated as of July
12, 1999 (the "Stock Option Agreement");
WHEREAS, in connection with the execution and delivery of the Merger
and Contribution Agreement, Time Warner, Sony, CDnow, Holdco, Pennsylvania
Subsidiary, Delaware Sub I and Delaware Sub II entered into a Letter Agreement
dated July 12, 1999 (together with the Merger and Contribution Agreement, the
Master Canadian Transaction Agreement, the CDnow Shareholder Agreement and the
Stock Option Agreement, the "Transaction Agreements");
WHEREAS, in connection with the execution and delivery of the Merger
and Contribution Agreement, Time Warner, Sony Music Entertainment Inc., a
Delaware corporation ("SMEI"), and CDnow entered into a Convertible Loan
Agreement dated as of July 12, 1999 (the "Convertible Loan Agreement);
WHEREAS, in connection with the Convertible Loan Agreement, CDnow and
certain related companies entered into a Guarantee and Collateral Agreement
dated as of January 21, 2000, in favor of Time Warner, as Security Agent for
Time Warner and SMEI as lenders under the Convertible Loan Agreement (the
"Security Agreement"); and
WHEREAS, the parties hereto mutually desire to terminate the
Transaction Agreements on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the covenants
and agreements set forth in this Termination Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
Termination
SECTION 1.01. Termination. Time Warner, Sony and CDnow mutually
consent to terminate the Merger and Contribution Agreement pursuant to Section
10.01(a) of the Merger and Contribution Agreement, which termination constitutes
automatic termination of (i) the Master Canadian Transaction Agreement pursuant
to Section 4.4 thereof and (ii) the CDnow Shareholder Agreement pursuant to
Section 4 thereof. Each of Time Warner, Sony and CDnow acknowledges and agrees
that, pursuant to Section 2 of the Stock Option Agreement, the termination of
the Merger and Contribution Agreement as provided in the preceding sentence
shall cause
<PAGE>
3
the Option (as defined in Section 1 of the Stock Option Agreement) granted
under the Stock Option Agreement to terminate and be of no further force and
effect.
SECTION 1.02. Effect of Termination. Notwithstanding anything to the
contrary contained in the Transaction Agreements, the Convertible Loan Agreement
or the Security Agreement, except with respect to (i) Section 3.14, Section
4.14, the last sentence of Section 8.02(a), Section 8.07(a), Section 10.02 and
Article XI of the Merger and Contribution Agreement and (ii) Article 4 of the
Master Canadian Transaction Agreement, which provisions shall survive the
termination of the Transaction Agreements (for the avoidance of doubt, Section
8.07(b) and Section 8.07(c) of the Merger and Contribution Agreement shall not
survive the termination of the Transaction Agreements), none of the parties to
this Termination Agreement nor any of their respective parents, subsidiaries or
affiliates, or any of their respective directors, officers, trustees,
representatives, employees, attorneys, advisors, investment bankers, agents,
stockholders, warrant holders, partners, associates, predecessors, heirs,
executors, administrators, legal representatives, successors or assigns shall
have any liability or obligation under the Transaction Agreements.
SECTION 1.03. Public Announcements. The press release announcing the
termination of the Transaction Agreements shall be in the form of Exhibit A to
this Termination Agreement.
ARTICLE II
Releases and Absence of Indemnification
SECTION 2.01. Releases. (a) Each of CDnow, Holdco, Pennsylvania Sub,
Delaware Sub I, Delaware Sub II, and each of the individuals who execute this
Termination Agreement, for such party and such party's successors and assigns,
hereby releases and forever discharges each of Time Warner and Sony, and any and
all of their respective present, former and future parents, subsidiaries and
affiliates, and any and all of their respective present, former and future
directors, officers, trustees, representatives, employees, attorneys, advisors,
investment bankers, agents, stockholders, warrant holders, partners, associates,
predecessors, heirs, executors, administrators, legal representatives,
successors and assigns, in any capacity whatsoever (the "Time Warner and Sony
Released Persons"), from all claims, actions, complaints, causes of
<PAGE>
4
action, judgments, liabilities, obligations, damages, debts, demands or suits
(each individually, a "Claim" and collectively, "Claims"), at law or in
equity, known or unknown, which CDnow or any other CDnow Released Person (as
hereinafter defined) claiming through, under or on behalf of CDnow or any
other CDnow Released Person or any of their successors or assigns ever had,
now has or hereafter can, shall or may have for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the date
of this Termination Agreement, which Claims relate to or result from or arise
out of any Transaction Agreement or any of the transactions contemplated by
any of the Transaction Agreements. For the avoidance of doubt, nothing in this
Termination Agreement shall constitute a release of any Claims under the
Convertible Loan Agreement or the Security Agreement or the notes and
documents issued thereunder.
(b) Each of Time Warner and Sony, for such party and such party's
successors and assigns, hereby releases and forever discharges each of CDnow,
Holdco, Pennsylvania Sub, Delaware Sub I, Delaware Sub II, and each of the
individuals who execute this Termination Agreement, and any and all of their
respective present, former and future parents, subsidiaries and affiliates, and
any and all of their respective present, former and future directors, officers,
trustees, representatives, employees, attorneys, advisors, investment bankers,
agents, stockholders, warrant holders, partners, associates, predecessors,
heirs, executors, administrators, legal representatives, successors and assigns,
in any capacity whatsoever (the "CDnow Released Persons"), from all Claims, at
law or in equity, known or unknown, which Time Warner, Sony or any other Time
Warner and Sony Released Person claiming through, under or on behalf of Time
Warner or Sony or any other Time Warner and Sony Released Person or any of their
successors or assigns ever had, now has or hereafter can, shall or may have for,
upon, or by reason of any matter, cause or thing whatsoever from the beginning
of the world to the date of this Termination Agreement, which Claims relate to
or result from or arise out of any Transaction Agreement or any of the
transactions contemplated by any of the Transaction Agreements. For the
avoidance of doubt, nothing in this Termination Agreement shall constitute a
release of any Claims under the Convertible Loan Agreement or the Security
Agreement or the notes and documents issued thereunder.
(c) Each of the parties to this Termination Agreement hereby
acknowledges and agrees that all claims under Section 1542 of the California
Civil Code and any other provision of law now or hereafter enacted, adjudicated
<PAGE>
5
or sought to be adjudicated relating to the release or waiver of unknown or
unspecified claims are hereby specifically and expressly released and waived.
Each of the parties understands that Section 1542 of the California Civil Code
provides that "[a] general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected his
settlement with the debtor". For purposes of this Termination Agreement, each
of the parties acknowledges and agrees that it may be considered to be both a
"creditor" and a "debtor" for all purposes and with respect to all claims it
may now know or suspect to exist within the meaning of Section 1542 of the
California Civil Code and any other provision of law nor or hereafter enacted,
adjudicated or sought to be adjudicated relating to the release or waiver of
unknown or unspecified claims.
SECTION 2.02. No Indemnification. Nothing in this Article II shall in
any way constitute an agreement by any party to this Termination Agreement to
indemnify any other party hereto against any third party Claim or, except as
specifically set forth herein with respect to the Time Warner and Sony Released
Persons and the CDnow Released Persons, waive, release, limit or restrict any
Claim which any party may have against any person or entity not a party to this
Termination Agreement.
ARTICLE III
Financing Arrangements
SECTION 3.01. Amendment of Convertible Loan Agreement and Consent in
respect of Security Agreement. Time Warner and CDnow shall, and Sony shall cause
SMEI to, simultaneously with the execution and delivery of this Termination
Agreement, enter into an amendment to the Convertible Loan Agreement in the form
of Exhibit B to this Termination Agreement. Time Warner and CDnow shall, and
Sony shall cause SMEI to, simultaneously with the execution and delivery of this
Termination Agreement, enter into a consent in respect of the Security Agreement
in the form of Exhibit C to this Termination Agreement.
SECTION 3.02. Purchase of Common Stock. (a) Each of Time Warner and
Sony agrees to, or to cause one or more of its subsidiaries to, purchase from
CDnow, and CDnow agrees to sell to each of Time Warner and Sony, or one or more
subsidiaries of Time Warner or Sony, as the case may be, that number of shares
of common stock, without par
<PAGE>
6
value, of CDnow (the "CDnow Common Stock"), determined by dividing $10,500,000
by the Market Value (as defined below) of shares of CDnow Common Stock,
rounded up to the nearest whole share (all such shares of CDnow Common Stock
purchased by Time Warner and Sony, and any of their respective subsidiaries,
the "Purchased Shares") for an aggregate purchase price of $21,000,000 (the
"Aggregate Purchase Price"). For purposes of this Section 3.02, the term
"Market Value" shall mean $8.73 per share of CDnow Common Stock, which is the
volume weighted average of the closing price of CDnow Common Stock as reported
on the Nasdaq National Market on each of the ten consecutive trading days
ending with the trading day immediately preceding the date of this Termination
Agreement. CDnow represents and warrants that, upon issuance of the Purchased
Shares and receipt of payment therefor, such shares will be validly issued,
fully paid and nonassessable.
(b) On or prior to March 16, 2000, each of Time Warner and Sony shall
pay to CDnow, in U.S. dollars by wire transfer in immediately available funds to
an account specified by the Chief Financial Officer of CDnow in a written notice
delivered to each of Time Warner and Sony on or prior to March 14, 2000, an
amount equal to one-half of the Aggregate Purchase Price. Not later than one
business day following receipt by CDnow of the Aggregate Purchase Price, CDnow
shall deliver to each of Time Warner and Sony certificates representing the
Purchased Shares.
(c) Each of Time Warner and Sony, and any of their respective
subsidiaries who hold Purchased Shares, shall have registration rights with
respect to the Purchased Shares that are identical to the registration rights
provided in Section 9 of the Convertible Loan Agreement in respect of any shares
of CDnow Common Stock issued upon conversion of any loans, or any interest
payable with respect thereto, made by Time Warner or SMEI to CDnow pursuant to
the Convertible Loan Agreement.
(d) Time Warner and Sony, and any of their respective subsidiaries who
hold shares of CDnow Common Stock, acting as one group, shall be entitled, but
shall not be required, at any time and from time to time, to designate one
individual (the "Designee") to serve as a member of the Board of Directors of
CDnow (the "Board of Directors"). In the event a Designee shall have been
designated, CDnow shall use all reasonable efforts to cause the Board of
Directors to effect the nomination of the Designee (i) in the case of any
Designee designated on or prior to December 31, 2001, as a Class I Director and
(ii) in the case of any Designee designated after December 31, 2001, for so long
as the Board
<PAGE>
7
of Directors shall have more than one class, as a member of that class of
directors whose term expires at the annual meeting of shareholders of CDnow
occurring in the year that is three years after the year in which such
Designee is designated, and, in the event the Board of Directors shall have
only one class, as a member of the Board of Directors. If the Designee is a
director or holds a management level position in any entity whose primary
business (i) is engaged in selling pre-recorded music or videos through the
Internet or (ii) otherwise competes with the business of CDnow, then Time
Warner and Sony shall cause this Designee to immediately resign from the Board
of Directors. The right of Time Warner and Sony, and any of their respective
subsidiaries who hold shares of CDnow Common Stock, to designate the Designee
shall terminate whenever the total number of shares of CDnow Common Stock held
by Time Warner, Sony or any of their respective subsidiaries shall be less
than 50% of the number of shares constituting the Purchased Shares, in each
case appropriately adjusted in accordance with the provisions contained in
Exhibit D to the Convertible Loan Agreement.
ARTICLE IV
Strategic Relationships
Each of Time Warner, Sony and CDnow will work together to explore
strategic relationships into which they may enter for the benefit of the
businesses of CDnow and The Columbia House Company. Nothing contained in this
Termination Agreement, any of the Transaction Agreements, the Convertible Loan
Agreement or the Security Agreement shall in any way require or otherwise
obligate, or be deemed to require or otherwise obligate, any of the parties to
this Termination Agreement to enter into any relationship with, or to make any
commitment to, any of the other parties to this Termination Agreement, and any
and all decisions as to whether or not to enter into any such relationship or to
make any such commitment shall be made by each party in its sole discretion.
ARTICLE V
General Provisions
SECTION 5.01. Notices. All notices, requests, claims, demands and
other communications under this Termination Agreement shall be in writing and
shall be
<PAGE>
8
deemed given upon receipt by the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Time Warner, to
Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
Attention: General Counsel
with a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention: Faiza J. Saeed, Esq.
(b) if to Sony, to
Sony Corporation of America
550 Madison Avenue
New York, New York 10022
Attention: Executive Vice President and
Chief Financial Officer
with a copy to:
Sony Corporation of America
550 Madison Avenue
New York, New York 10019
Attention: Vice President,
Legal Department
and:
Rosenman & Colin
575 Madison Avenue
New York, New York 10022
Attention: H. Paul Burak, Esq.
<PAGE>
9
(c) if to CDnow, Holdco, Pennsylvania Sub, Delaware Sub I, Delaware
Sub II or any individual who is a party to this Termination Agreement, to
CDnow, Inc.
1005 Virginia Drive
Ft. Washington, Pennsylvania 19034
Attention: General Counsel
with a copy to:
Morgan, Lewis & Bockius LLP
1701 Market Square
Philadelphia, Pennsylvania 19103
Attention: N. Jeffrey Klauder, Esq.
SECTION 5.02. Interpretation. When a reference is made in this
Termination Agreement to a Section, such reference shall be to a Section of this
Termination Agreement unless otherwise indicated. The headings contained in this
Termination Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Termination Agreement. Whenever
the words "include", "includes" or "including" are used in this Termination
Agreement, they shall be deemed to be followed by the words "without
limitation".
SECTION 5.03 Severability. If any term or other provision of this
Termination Agreement is invalid, illegal or incapable of being enforced by any
rule or law, or public policy, all other conditions and provisions of this
Termination Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Termination Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
SECTION 5.04 Counterparts. This Termination Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement. This Termination Agreement shall become effective as of the date
first written above when each of Time Warner, Sony, CDnow, Holdco, Pennsylvania
Sub, Delaware Sub I and Delaware
<PAGE>
10
Sub II shall have received counterparts of this Termination Agreement that,
when taken together, bear the signatures of all such parties to this
Termination Agreement, notwithstanding the absence of counterparts of this
Termination Agreement bearing the signature of any individual identified on
the signature pages to this Termination Agreement. Once effective, this
Termination Agreement shall be binding upon, and enforceable against, each of
Time Warner, Sony, CDnow, Holdco, Pennsylvania Sub, Delaware Sub I, Delaware
Sub II and each individual who executes this Termination Agreement,
notwithstanding the failure of any individual identified on the signature
pages to this Termination Agreement to execute this Termination Agreement. For
the avoidance of doubt, each of Time Warner, Sony, CDnow, Holdco, Pennsylvania
Sub, Delaware Sub I, Delaware Sub II and each individual who executes this
Termination Agreement, and no other entity or person, shall be a party to this
Termination Agreement.
SECTION 5.05. Entire Agreement; No Third-Party Beneficiaries. This
Termination Agreement and the Convertible Loan Agreement, as amended as provided
in this Termination Agreement, and Security Agreement, as modified as provided
in this Termination Agreement, and any notes and documents issued thereunder,
(a) constitute the entire agreement, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Termination Agreement and (b) except as provided in
Section 2.01(a) and Section 2.01(b), are not intended to confer upon any person
other than the parties any rights or remedies.
SECTION 5.06. Governing Law. This Termination Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
SECTION 5.07. Assignment. This Termination Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
SECTION 5.08 Enforcement. The parties to this Termination Agreement
agree that irreparable damage would occur and that the parties would not have
any adequate remedy at law in the event that any of the provisions of this
Termination Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
<PAGE>
11
Termination Agreement and to enforce specifically the terms and provisions of
this Termination Agreement in any New York state court or, any Federal court
located in the State of New York, this being in addition to any other remedy
to which they are entitled at law or in equity. Each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of any New York state
court or any Federal court located in the State of New York in the event any
dispute arises out of this Termination Agreement, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that it will not bring any
action relating to this Termination Agreement in any court other than any New
York state court or any Federal court sitting in the State of New York and
(iv) waives any right to trial by jury with respect to any action related to
or arising out of this Termination Agreement.
SECTION 5.09. Acknowledgments. Each of the parties to this Termination
Agreement acknowledges and represents that this Termination Agreement, including
Article II hereof, is entered into freely and voluntarily by it, it is
represented by counsel and it has had an opportunity to review this Termination
Agreement, including Article II hereof, with counsel prior to affixing its
signature to this Termination Agreement.
SECTION 5.10. Fees and Expenses. All fees and expenses incurred in
connection with this Termination Agreement and the termination of the
Transaction Agreements shall be borne by the party incurring such fees and
expenses.
<PAGE>
12
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Termination Agreement, all as of the date first written above.
TIME WARNER INC.,
by
/s/ Spencer B. Hays
--------------------------
Name: Spencer B. Hays
Title: Vice President and
Deputy General
Counsel
SONY CORPORATION OF AMERICA,
by
/s/ Marinus N. Henny
--------------------------
Name: Marinus N. Henny
Title: Executive
Vice President
CDNOW, INC.,
by
/s/ Jason Olim
--------------------------
Name: Jason Olim
Title: President and
Chief Executive Officer
DELAWARE HOLDCO CORPORATION,
by
/s/ David A. Capozzi
--------------------------
Name: David A. Capozzi
Title: Vice President and
Secretary
PENNSYLVANIA SUBSIDIARY, INC.,
by
/s/ David A. Capozzi
--------------------------
Name: David A. Capozzi
Title: Vice President and
Secretary
<PAGE>
13
DELAWARE SUB I L.L.C.,
by
/s/ Jason Olim
---------------------------
Name: Jason Olim
Title: President
DELAWARE SUB II L.L.C.,
by
/s/ Jason Olim
--------------------------
Name: Jason Olim
Title: President
JASON OLIM
/s/ Jason Olim
--------------------------
MATTHEW OLIM
/s/ Matthew J. Olim
--------------------------
JONATHAN V. DIAMOND
--------------------------
ROBERT DAVID GRUSIN
--------------------------
JAMES E. COANE
--------------------------
<PAGE>
EXHIBIT A
Press Release
CDNOW To Merge With Sony's and Time Warner's Columbia House, FOR IMMEDIATE
RELEASE:
CDNOW, TIME WARNER AND SONY CORPORATION ANNOUNCE STRATEGIC
RELATIONSHIP IN PLACE OF MERGER
Parties Agree Not to Proceed With Merger
Time Warner and Sony to Be Equity Investors in CDNOW
NEW YORK and FORT WASHINGTON, PA , March 13, 2000 - CDNOW (Nasdaq:CDNW), Time
Warner Inc. (NYSE:TWX) and Sony Corporation (NYSE: SNE) announced the
termination of the pending merger of CDNOW with Time Warner's and Sony's
Columbia House. The parties have reached a new arrangement with significant
investments and a commitment to explore strategic relationships with CDNOW.
With this arrangement, CDNOW remains an independent public company with
continued ties to Time Warner, Sony and Columbia House.
Time Warner and Sony have agreed to commit $51 million to CDNOW, by providing
an additional $21 million in cash as an equity investment and converting an
existing $30 million short-term loan commitment into long-term convertible
debt.
Jason Olim, CDNOW's President and CEO said, "We are obviously disappointed
that the merger originally envisioned last July will not be completed.
However, we feel the termination of the merger is the best move for CDNOW and
its shareholders. This new relationship with Time Warner and Sony, including
their significant commitment to purchase 2,405,500 shares of CDNOW common
stock for $21 million in cash coupled with the conversion of existing and
future borrowings under a $30 million short-term loan commitment to long-term
convertible debt, allows us to focus on our primary business: building one of
the world's great music brands. We plan to immediately begin considering other
strategic opportunities for the company."
Scott Flanders, Chairman and CEO of Columbia House, said, "I am pleased with
this commitment to CDNOW and am excited about this alliance with Jason and his
colleagues. It's unfortunate that we could not proceed with our merger as
originally planned, but we expect our ongoing relationship to provide many
benefits to both CDNOW and to Columbia House and its parents."
-more-
<PAGE>
2
About CDNOW
CDNOW, Inc. (Nasdaq: CDNW) is the online music destination that offers the
most comprehensive, personalized connection to the world of music. CDNOW's
offerings consist of more than 500,000 music and entertainment-related items,
including CDs, music downloads, DVDs, videotapes, cassettes, vinyl albums and
Custom CDs, as well as music samples and intelligent album recommendations.
CDNOW Media, the Company's newly formed interactive division, develops CDNOW's
interactive content, including allstar(TM) News, artist interviews and
reviews, Cosmic Music Network-an innovative community for unsigned bands-and
the Company's cybercasting and entertainment initiatives.
About Time Warner Inc.
Time Warner Inc. (NYSE: TWX, www.timewarner.com) is the world's leading media
company. Its businesses: cable networks, publishing, music, filmed
entertainment, cable and digital media.
About Sony
Sony Corporation is a leading manufacturer of audio, video, communications and
information technology products for the consumer and professional markets. Its
music, pictures and computer entertainment operations make Sony one of the
most comprehensive entertainment companies in the world. Sony recorded
consolidated annual sales of over $56 billion for the fiscal year ended March
31, 1999. Sony's Home Page URL: http://www.sony.co.jp/
###
Contacts:
CDNOW, Inc. CDNOW, Inc. Sony Corporation of
America
Debbie Vondran Marlo Zoda Ann Morfogen
215-619-9366 215-619-9432 212-833-6873
Patricia Kiel Time Warner Inc.
Sony Music Entertaiment Edward Adler
212-833-4647 212-484-6630
<PAGE>
EXHIBIT B
AMENDMENT dated as of March 13, 2000 (this
"Amendment"), to the Convertible Loan Agreement dated as of
July 12, 1999 (the "Convertible Loan Agreement"), among
CDNOW, INC., a Pennsylvania corporation (the "Borrower"),
SONY MUSIC ENTERTAINMENT INC. ("Sony Music") and TIME WARNER
INC. ("Time Warner", and together with Sony Music, the
"Lenders").
WHEREAS the Borrower and the Lenders have entered into the Convertible
Loan Agreement;
WHEREAS the Borrower and the Lenders desire to amend the Convertible
Loan Agreement to make certain modifications and clarifications to the
provisions contained therein;
NOW, THEREFORE, in consideration of the premises, mutual promises,
representations, warranties and covenants contained in this Amendment, the
parties hereto hereby agree:
SECTION 1. Amendment of Section 1. (a) The definition of the term
"Conversion Price" in Section 1 of the Convertible Loan Agreement is hereby
deleted in its entirety and such definition is hereby replaced with the
following definition:
"'Conversion Price' shall mean $10.00.".
(b) The definition of the term "Final Maturity Date" in Section 1 of
the Convertible Loan Agreement is hereby deleted in its entirety and such
definition is hereby replaced with the following definition:
"'Final Maturity Date' shall mean the earlier of (a) such time as the
Loan Commitment is reduced to zero pursuant to the terms hereof and
(b) January 15, 2003.".
(c) The definition of the term "Indebtedness" in Section 1 of the
Convertible Loan Agreement is hereby amended to delete clause (iv) thereof in
its entirety and such clause is hereby replaced with the following clause:
"(iv) any obligation of such Person issued or assumed as the deferred
purchase price of Property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of
business,
<PAGE>
2
which in either case are not more than 120 days overdue, or
alternative terms of which have been agreed to by the parties (so long
as such terms do not provide for any amounts to be more than 366 days
overdue) or which are being contested in good faith)".
(d) The definition of the term "Interest Rate" in Section 1 of the
Convertible Loan Agreement is hereby deleted in its entirety and such definition
is hereby replaced with the following definition:
"'Interest Rate' shall mean a rate per annum equal to the Eurodollar
Rate plus 3%.".
(e) The definition of the term "Net Debt Proceeds" in Section 1 of the
Convertible Loan Agreement is hereby deleted in its entirety.
(f) The definition of the term "Permitted Interim Financing" in
Section 1 of the Convertible Loan Agreement is hereby deleted in its entirety
and such definition is hereby replaced with the following definition:
"'Permitted Interim Financing' shall mean Indebtedness for borrowed
money incurred by the Borrower provided that (i) the maturity date
thereof extends to at least 366 days beyond the Final Maturity Date,
(ii) such Indebtedness (A) is unsecured or is secured by a Lien that
is junior to any Lien securing any amounts outstanding under this
Agreement and (B) is not guaranteed by any Subsidiary of the Borrower,
(iii) such Indebtedness contains representations, warranties,
covenants and agreements which are not more restrictive, individually
or taken as a whole, than those in effect hereunder and (iv) such
Indebtedness is subject to subordination and intercreditor
arrangements satisfactory to the Lenders (and appropriate to reflect
the senior, secured nature of the Obligations).".
(g) The definition of the term "Third Party Tender Offer" in Section 1
of the Convertible Loan Agreement is hereby amended to add to the end thereof
the phrase "(and replacing every reference to "Company" therein with "Borrower",
the reference to "Purchaser" therein with "Lender" and the reference to "Common
Stock" therein with "common stock, without par value, of the Borrower")".
<PAGE>
3
SECTION 2. Amendment of Section 2.6. Section 2.6 of the Convertible
Loan Agreement is hereby amended to delete clause (i) thereof in its entirety
and such clause is hereby replaced with the following clause:
(i) the Borrower shall give the Lenders written notice (or telephonic
notice promptly confirmed in writing), which notice shall be
irrevocable, of its intent to prepay the Loans, at least five Business
Days prior to a prepayment, which notice shall specify the date (which
shall be a Business Day), the Loans and the amount of such prepayment
and".
SECTION 3. Amendment of Section 2.7. Section 2.7(a) of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced with the following two sentences:
"If the Borrower or any of its Subsidiaries shall receive any proceeds
from any sale, lease, transfer or disposition to any Person of any of
its Property or Equity Securities then the Borrower shall immediately
upon receipt thereof apply in accordance with Section 2.9 an amount in
cash equal to 100% of the Net Sale Proceeds from such sale, lease,
transfer or disposition to the Lenders as a mandatory repayment of
outstanding Loans and reduction in the remaining Loan Commitment in
accordance with the requirements of Section 2.8; provided, however,
that this Section 2.7(a) shall not apply to (i) sales of inventory in
the ordinary course of business, (ii) permitted Sale and Leaseback
Transactions, (iii) sales of shares of CDnow Common Stock to Time
Warner and Sony Corporation of America ("Sony"), or any of their
respective Subsidiaries, pursuant to the Termination Agreement dated
as of the date hereof among Time Warner, Sony, the Borrower, Delaware
Holdco Corporation, Pennsylvania Subsidiary, Inc., Delaware Sub I
L.L.C., Delaware Sub II L.L.C., (iv) sales of shares of Liquid Audio,
Inc. held by the Borrower or any of its subsidiaries in accordance
with the terms of the Consent dated as of the date hereof among the
Borrower, Time Warner and SMEI or (v) the issuance of Equity
Securities for fair market value representing up to 19.9% of the then
<PAGE>
4
outstanding shares of CDnow Common Stock in connection with any
Permitted Interim Financing. For the avoidance of doubt, if the
Borrower or any of its Subsidiaries shall receive any proceeds from
any Permitted Interim Financing, such proceeds shall not be applied as
a mandatory repayment of outstanding Loans or a reduction in the
remaining Loan Commitment."
Section 2.7(b) of the Convertible Loan Agreement is hereby deleted in
its entirety and Section 2.7(c) of the Convertible Loan Agreement is hereby
denoted Section 2.7(b).
SECTION 4. Amendment of Section 2.8. Section 2.8 of the Convertible
Loan Agreement is hereby amended to delete the second sentence of such section
in its entirety and such sentence is hereby replaced with the following
sentence:
"The excess of any Net Sale Proceeds over amounts required to repay
principal and Interest shall reduce the remaining unused Loan
Commitment.".
SECTION 5. Amendment of Section 5.1. Section 5.1(h) of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced
with the following:
" - five Business Days prior to the Borrower or any Subsidiary
entering into any transaction or taking any action which would result
in a mandatory prepayment under Section 2.7, a written notice
specifying the nature thereof.".
SECTION 6. Amendment of Section 6.3. Section 6.3 of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced with the following sentence:
"The Borrower will not, and will not permit its Subsidiaries to,
directly or indirectly, incur any Indebtedness other than Permitted
Indebtedness, and the Borrower will not issue any Disqualified Stock
or permit any of its Subsidiaries to issue any Disqualified Stock.".
<PAGE>
5
SECTION 7. Amendment of Section 8.1 Section 8.1 of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced with the following sentence:
"Subject to and upon compliance with the provisions of this Section 8,
each Lender, at its sole option, may, at any time and from time to
time, irrespective of whether the Borrower shall have delivered any
notice pursuant to Section 2.6 or Section 5.1, convert (a) each Note
or any portion of the principal amount thereof which equals $500,000
or any integral multiple thereof, and (b) the amount of accrued and
unpaid Interest on the Loan represented by such Note (including
without limitation any overdue Interest accruing at the Default Rate),
into a number of fully paid and nonassessable shares (calculated as to
each conversion to the nearest 1/100 of a share) of CDnow Common Stock
equal to the quotient obtained by dividing (i) the aggregate of such
principal amount and accrued and unpaid interest to be so converted by
(ii) the Conversion Price, determined as hereinafter provided, in
effect at the time of conversion.
SECTION 8. Representations and Warranties. (a) The Borrower represents
and warrants to each of the Lenders that (i) the Borrower has all requisite
power and authority to execute and deliver this Amendment, (ii) the execution
and delivery by the Borrower of this Amendment have been duly authorized by all
necessary action on the part of the Borrower, (iii) the Borrower has duly
executed and delivered this Amendment, and, assuming the due authorization,
execution and delivery by each person other than the Borrower party hereto, this
Amendment constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms and (iv) the representations and
warranties set forth in the Section 4 of the Convertible Loan Agreement are true
and correct in all material respects on and as of the date of this Amendment
with the same effect as though made on and as of the date hereof, except to the
extent such representations and warranties expressly relate to an earlier date.
(b) Time Warner represents and warrants to the Borrower and Sony Music
that (i) Time Warner has all requisite power and authority to execute and
deliver this Amendment, (ii) the execution and delivery by Time Warner of
<PAGE>
6
this Amendment have been duly authorized by all necessary action on the part
of Time Warner and (iii) Time Warner has duly executed and delivered this
Amendment, and, assuming the due authorization, execution and delivery by each
person other than Time Warner party hereto, this Amendment constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
(c) Sony Music represents and warrants to the Borrower and Time Warner
that (i) Sony Music has all requisite power and authority to execute and deliver
this Amendment, (ii) the execution and delivery by Sony Music of this Amendment
has been duly authorized by all necessary action on the part of Sony Music and
(iii) Sony Music has duly executed and delivered this Amendment, and, assuming
the due authorization, execution and delivery by each person other than Sony
Music party hereto, this Amendment constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 9. Governing Law, Submission to Jurisdiction. (a) THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF
LAW).
(b) Any legal action or proceeding with respect to this Amendment and
any action for enforcement of any judgment in respect hereof may be brought in
the courts of the State of New York in New York County or of the United States
of America for the Southern District of New York, and, by execution and delivery
of this Amendment, the Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Borrower irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Borrower at its address set forth in
Section 10.3 of the Convertible Loan Agreement. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Amendment brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Lenders or any
holder of a Note (as defined in the Convertible Loan
<PAGE>
7
Agreement) to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Borrower in any
other jurisdiction.
SECTION 10. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 11. Headings Descriptive. The headings of the several Sections
of this Amendment are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Amendment.
SECTION 12. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER AND EACH LENDER HEREBY IRREVOCABLY WAIVES
ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR IN CONNECTION WITH THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
SECTION 13. Full Force and Effect. Except as expressly set forth in
this Amendment, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies of
the Lenders or the Borrower under the Convertible Loan Agreement or any other
Loan Document (as defined in the Convertible Loan Agreement), and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Convertible Loan Agreement
or any other Loan Document, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Nothing contained in this
Amendment shall be deemed to entitle the Borrower to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Convertible Loan Agreement
or any other Loan Document in similar or different circumstances. This Amendment
shall constitute a "Loan Document" for all purposes of the Convertible Loan
Agreement and the other Loan Documents. As used in the Convertible Loan
Agreement, the terms "hereof" and "hereto", and words of similar import, shall,
unless the context otherwise requires, refer to the Convertible Loan Agreement
as amended by this Amendment. Any reference in any document to the Convertible
Loan Agreement shall be deemed to be a reference to the Convertible Loan
Agreement as amended by this Amendment.
<PAGE>
8
SECTION 14. Fees and Expenses. All fees and expenses incurred in
connection with this Amendment shall be borne by the party incurring such fees
and expenses.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Amendment, all as of the date first written above.
CDNOW, INC.,
by
--------------------------
Name:
Title:
SONY MUSIC ENTERTAINMENT INC.,
by
--------------------------
Name:
Title:
TIME WARNER INC.,
by
--------------------------
Name:
Title:
<PAGE>
9
The undersigned guarantors
under the Guarantee and
Collateral Agreement
entered into in connection
with the Convertible Loan
Agreement hereby consent to
the Amendment and acknowledge
and agree that the Guarantee
and Collateral Agreement
(including the guarantee
provided by such guarantor
thereunder) remains in full
force and effect.
CDNOW ONLINE, INC.,
by
--------------------------
Name:
Title:
N2K INC.,
by
--------------------------
Name:
Title:
CDNOW INVESTMENTS, INC.,
by
--------------------------
Name:
Title:
CDNOW TRADEMARKS, INC.,
by
--------------------------
Name:
Title:
<PAGE>
10
SUPERSONIC BOOM, INC.,
by
--------------------------
Name:
Title:
TSI LICENSING, INC.,
by
--------------------------
Name:
Title:
<PAGE>
EXHIBIT C
CONSENT dated as of March 13, 2000 (this "Consent"), in
respect of the Guarantee and Collateral Agreement (the
"Security Agreement") dated as of January 21, 2000, made by
CDnow, Inc. (the "Borrower") and the other parties
identified therein, in favor of Time Warner Inc., as
Security Agent (in such capacity, the "Security Agent") for
Time Warner Inc. ("Time Warner") and Sony Music
Entertainment Inc. (together with "Time Warner", the
"Lenders") under the Convertible Loan Agreement dated as of
July 12, 1999, among the Borrower and the Lenders (the
"Convertible Loan Agreement").
WHEREAS the Borrower and the Lenders have entered into the Convertible
Loan Agreement;
WHEREAS, in connection with the Convertible Loan Agreement the
Borrower and the other parties identified therein have made the Security
Agreement in favor of the Security Agent;
WHEREAS the Borrower has requested that the Lenders and the Security
Agent (i) consent to the sale of all shares of common stock of, and all warrants
to acquire shares of common stock of, Liquid Audio, Inc. (the "Shares") to a
third party that is not a subsidiary of, or in any way affiliated with, the
Borrower (the "Sale") for a purchase price that is equal to the fair market
value of such shares or warrants, as the case may be, and (ii) release from the
lien created pursuant to the Security Agreement all of the Shares that are sold
in a Sale;
WHEREAS the Lenders and the Security Agent are willing to grant such
consent on the terms, and subject to the conditions, and to the extent set forth
in, this Consent.
NOW, THEREFORE, in consideration of the premises, mutual promises,
representations, warranties and covenants contained in this Consent, the parties
hereto hereby agree:
SECTION 1. Consent and Release. (a) Each of the Lenders and the
Security Agent hereby consents to the Sale of the Shares on the terms, and
subject to the conditions, set forth in this Consent.
(b) Each of the Lenders hereby releases, and hereby authorizes the
Security Agent to execute any and all further documents necessary or desirable
to evidence the
<PAGE>
2
release, from the lien created pursuant to the Security Agreement any and all
Shares that are sold in a Sale, effective upon consummation of such Sale.
SECTION 2. Representations and Warranties. To induce the other parties
to this Consent to enter into this Consent, the Borrower hereby represents and
warrants to each of the Lenders and the Security Agent that (i) the Borrower has
all requisite power and authority to execute and deliver this Consent, (ii) the
execution and delivery by the Borrower of this Consent have been duly authorized
by all necessary action on the part of the Borrower, (iii) the Borrower has duly
executed and delivered this Consent, and, assuming the due authorization,
execution and delivery by each person other than the Borrower party hereto, this
Consent constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms and (iv) the representations and warranties set
forth in the Section 4 of the Convertible Loan Agreement are true and correct in
all material respects on and as of the date of this Consent with the same effect
as though made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
SECTION 3. Conditions. On the date on which any Sale of Shares is
consummated, (i) the representations and warranties set forth in the Section 4
of the Convertible Loan Agreement shall be true and correct in all material
respects on and as of such date with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly
relate to an earlier date and (ii) no Default (as defined in the Convertible
Loan Agreement) or Event of Default (as defined in the Convertible Loan
Agreement) shall have occurred or be continuing.
SECTION 4. Effectiveness of Consent. This Consent shall become
effective as of the date first written above when the Security Agent shall have
received counterparts of this Consent that, when taken together, bear the
signatures of the Borrower, the Security Agent and the Lenders.
SECTION 5. Governing Law, Submission to Jurisdiction. (a) THIS CONSENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
<PAGE>
3
(b) Any legal action or proceeding with respect to this Consent and
any action for enforcement of any judgment in respect hereof may be brought in
the courts of the State of New York in New York County or of the United States
of America for the Southern District of New York, and, by execution and delivery
of this Consent, the Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Borrower irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Borrower at its address set forth in
Section 10.3 of the Convertible Loan Agreement. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Consent brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Lenders or any
holder of a Note (as defined in the Convertible Loan Agreement) or the Security
Agent to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower in any other jurisdiction.
SECTION 6. Counterparts. This Consent may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
SECTION 7. Headings Descriptive. The headings of the several Sections
of this Consent are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Consent.
SECTION 8. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER, EACH LENDER AND THE SECURITY AGENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT OR ANY OTHER LOAN
DOCUMENT OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
SECTION 8. Full Force and Effect. Except as expressly set forth in
this Consent, this Consent shall not by implication or otherwise limit, impair,
constitute a
<PAGE>
4
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Security Agent or the Borrower under the Convertible Loan Agreement, the
Security Agreement or any other Loan Document (as defined in the Convertible
Loan Agreement), and shall not alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in
the Convertible Loan Agreement, the Security Agreement or any other Loan
Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing contained in this Consent shall be
deemed to entitle the Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Convertible Loan Agreement, the
Security Agreement or any other Loan Document in similar or different
circumstances. This Consent shall constitute a "Loan Document" for all
purposes of the Convertible Loan Agreement and the other Loan Documents.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Consent, all as of the date first written above.
CDNOW, INC.,
by
---------------------------
Name:
Title:
SONY MUSIC ENTERTAINMENT INC.,
by
--------------------------
Name:
Title:
TIME WARNER INC., as Lender
and Security Agent,
by
--------------------------
Name:
Title:
CONFORMED COPY
_______________________________________________________________________
CONVERTIBLE LOAN AGREEMENT
between
CDnow, Inc.
as Borrower,
and
SONY MUSIC ENTERTAINMENT INC.
TIME WARNER INC.
as Lenders
Dated as of July 12, 1999
$30,000,000
_______________________________________________________________________
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1
DEFINITIONS
Section 1.1 Definitions................................................ 1
SECTION 2
AMOUNT AND TERMS OF CREDIT FACILITY
Section 2.1 Term Loans................................................ 9
Section 2.2 Notice of Borrowing....................................... 9
Section 2.3 Disbursement of Funds..................................... 10
Section 2.4 The Notes................................................. 10
Section 2.5 Interest.................................................. 10
Section 2.6 Voluntary Prepayments..................................... 11
Section 2.7 Mandatory Prepayments..................................... 11
Section 2.8 Repayment; Reduction in Loan Commitment................... 12
Section 2.9 Method and Place of Payment............................... 13
Section 2.10 Taxes..................................................... 14
SECTION 3
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent...................................... 14
Section 3.2 Conditions Precedent to All Loans......................... 15
Section 3.3 Conditions Precedent to First Loan........................ 16
SECTION 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Merger Agreement Representations.......................... 17
Section 4.2 Authority Relative to this Agreement...................... 17
Section 4.3 Consents and Approvals; No Violation...................... 17
Section 4.4 Margin Regulations........................................ 18
Section 4.5 Investment Company Act.................................... 18
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2
Section 4.6 Absence of Indebtedness and Liens......................... 18
SECTION 5
AFFIRMATIVE COVENANTS
Section 5.1 Information Covenants..................................... 18
Section 5.2 Officer's Certificate..................................... 21
Section 5.3 Inspection................................................ 21
Section 5.4 Conduct of Business....................................... 21
Section 5.5 Maintenance of Property; Insurance........................ 22
Section 5.6 Notice of Suit or Adverse Change in
Business............................................... 22
Section 5.7 Books, Records, Inspections............................... 23
SECTION 6
NEGATIVE COVENANTS
Section 6.1 Merger Agreement Covenants................................ 23
Section 6.2 Changes in Business....................................... 23
Section 6.3 Limitation on Indebtedness................................ 23
Section 6.4 Limitation on Issuances of Guarantees by
Subsidiaries............................................ 23
Section 6.5 Limitation on Liens....................................... 24
Section 6.6 Limitation on Asset Sales................................. 24
Section 6.7 Use of Proceeds........................................... 24
Section 6.8 Limitation on Modifications of Certain
Indebtedness............................................ 24
Section 6.9 Limitation on Negative Pledge Clauses..................... 24
SECTION 7
EVENTS OF DEFAULT
Section 7.1 Events of Default......................................... 25
Section 7.2 Rights and Remedies....................................... 27
SECTION 8
CONVERSION
Section 8.1 Conversion Privilege and Conversion Price................. 27
Section 8.2 Exercise of Conversion Privileges......................... 28
Section 8.3 Fractions of Shares....................................... 29
Section 8.4 Adjustment of Conversion Price............................ 29
Section 8.5 Notice of Adjustments of Conversion Price................. 29
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3
Section 8.6 Company to Reserve CDnow Common Stock..................... 29
Section 8.7 Taxes on Conversions...................................... 29
Section 8.8 Covenant as to CDnow Common Stock......................... 30
Section 8.9 Investment Intent; Private Placement...................... 30
SECTION 9
REGISTRATION RIGHTS................................... 31
SECTION 10
MISCELLANEOUS
Section 10.1 Payment of Expenses, Indemnity, etc....................... 31
Section 10.2 Right of Setoff........................................... 32
Section 10.3 Notices................................................... 32
Section 10.4 Successors and Assigns; Assignments....................... 34
Section 10.5 Amendments and Waivers.................................... 34
Section 10.6 No Waiver; Remedies Cumulative............................ 34
Section 10.7 Governing Law, Submission to Jurisdiction................. 35
Section 10.8 Counterparts.............................................. 36
Section 10.9 Headings Descriptive...................................... 36
Section 10.10 Marshalling; Recapture.................................... 36
Section 10.11 Severability.............................................. 36
Section 10.12 Survival.................................................. 36
Section 10.13 Limitation of Liability................................... 36
Section 10.14 [Reserved.]............................................... 37
Section 10.15 Waiver of Trial by Jury................................... 37
Section 10.16 Interest Rate Limitation.................................. 37
Section 10.17 Senior Indebtedness....................................... 37
Section 10.18 Adjustments; Set-Off...................................... 38
Section 10.19 Merger Agreement.......................................... 38
Exhibit A - Form of Note
Exhibit B - Form of Guarantee and Collateral Agreement
Exhibit C - Form of Notice of Conversion Election
Exhibit D - Anti-dilution provisions
Schedules
1.1(a) Existing Debt Agreements
1.1(b) Permitted Liens
4.3 Consents and Approvals
<PAGE>
CONVERTIBLE LOAN AGREEMENT, dated as of July 12, 1999, between CDnow,
Inc., a Pennsylvania corporation (the "Borrower"), and SONY MUSIC ENTERTAINMENT
INC. and TIME WARNER INC. (each, a "Lender" and, together the "Lenders").
WHEREAS, this Agreement is being executed and delivered in connection
with, and as a condition to closing under, that certain Agreement of Merger and
Contribution (the "Merger Agreement"), dated as of July 12, 1999, among Time
Warner Inc. ("Time Warner"), Sony Corporation of America ("Sony"), CDnow, Inc.,
Holdco, Pennsylvania Sub, Delaware Sub I and Delaware Sub II, as each such term
is defined in the Merger Agreement;
WHEREAS, in connection with the Merger Agreement, the Borrower has
requested that the Lenders make available to it certain interim financing to
satisfy working capital needs of the Borrower; and
WHEREAS, the Lenders are willing to provide such financing to the
Borrower upon the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the Borrower and the Lenders hereby agree as follows:
SECTION 1. DEFINITIONS.
Section 1.1 Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural number the singular. Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed thereto in the Merger
Agreement.
"Affiliate" shall have the meaning ascribed thereto in the Governance
Agreement.
"Agreement" shall mean this Convertible Loan Agreement as in effect
from time to time.
"Assignee" shall have the meaning provided in Section 10.4(b).
"Attributable Indebtedness" shall mean, with respect to any Sale and
Leaseback Transaction of any Person, as at the time of determination, the
greater of (i) the capitalized amount in respect of such transaction that would
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2
appear on the balance sheet of such Person in accordance with GAAP and (ii) the
present value (discounted at a rate consistent with accounting guidelines, as
determined in good faith by such Person) of the payments during the remaining
term of the lease (including any period for which such lease has been extended
or may, at the option of the lessor, be extended) or until the earliest date on
which the lessee may terminate such lease without penalty or upon payment of a
penalty (in which case the rental payments shall include such penalty).
"Availability Date" shall mean, December 16, 1999.
"Bankruptcy Code" shall mean Title 11 of the United States Code
entitled "Bankruptcy," as amended from time to time, and any successor statute
or statutes.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean the incurrence of Loans from the Lenders on a
given date.
"Business Day" shall mean any day excluding Saturday, Sunday and any
day which shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government actions to
close.
"Capital Expenditures" shall mean all expenditures (including,
capitalized portions of Capitalized Lease Obligations) for any property, plant
or equipment (including replacements thereof, substitutions therefore and
additions thereto) that have a useful life of one year or more, where such
expenditures are or would be capitalized on the consolidated balance sheet of
the Borrower and its Subsidiaries during the relevant period in conformity with
GAAP.
"Capitalized Lease" shall mean (i) any lease of property, real or
personal, the obligations under which are capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries, and (ii) any other such
lease to the extent that the then present value of the minimum rental commitment
thereunder should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee.
"Capitalized Lease Obligations" shall mean all obligations of the
Borrower and its Subsidiaries under or in respect of Capitalized Leases.
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3
"Closing Price" shall mean, with respect to any security, the closing
sale price of such security on the date of determination on the principal U.S.
or foreign securities exchange on which such securities are listed or primarily
traded or, if such securities are not listed or primarily traded on any such
exchange, the closing sale price of such securities on such date of
determination on NASDAQ or any comparable system then in use (or, in the event
no such sale price is reported on such day, the average of the reported closing
bid and asked prices for such day).
"Collateral" shall mean the property subject to the Lien of the
Security Agreement and all payments and proceeds thereof, as more particularly
defined in the Security Agreement.
"Conversion Price" shall mean an amount equal to the lesser of (a)
$14.3751 and (b) the Closing Price of CDnow Common Stock on the Trading Day
immediately preceding the relevant date on which a Notice of Conversion Election
is given.
"Default" shall mean any event, act or condition which, with notice or
lapse of time, or both, would constitute an Event of Default.
"Default Rate" shall have the meaning provided in Section 2.5(b).
"Disqualified Stock" shall mean any Equity Security which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, or otherwise, matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof or is
exchangeable for Indebtedness at any time, in whole or in part, on or prior to
the 366th day following the date on which the Loans mature.
"Equity Security" shall have the meaning ascribed thereto in the
Governance Agreement.
"Eurodollar Rate" with respect to any Loan shall mean an interest rate
per annum equal to the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in the lawful money of the United
States at approximately 11:00 A.M. (London time) two Business Days prior to the
Borrowing of
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4
such Loan for a term of six months. If for any reason such rate is not
available, the term "Eurodollar Rate" shall mean, for any Loan, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
the lawful money of the United States at approximately 11:00 A.M. (London time)
two Business Days prior to the Borrowing of such Loan for a term of six months;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Event of Default" shall have the meaning provided in Section 7.
"Exchange Rate Obligations" means, with respect to any Person, any
currency swap agreements, forward exchange rate agreements, foreign currency
futures or options, exchange rate collar agreements, exchange rate insurance and
other agreements or arrangements, or combination thereof, designed to provide
protection against fluctuations in currency exchange rates.
"Existing Debt Agreements" shall mean the agreements listed on
Schedule 1.1(a).
"Final Maturity Date" shall mean the earlier of (a) such time as the
Loan Commitment is reduced to zero pursuant to the terms hereof, (b) January 15,
2001 or (c) the Effective Time.
"Governance Agreement" means the form of Governance Agreement attached
as Exhibit F to the Merger Agreement.
"Indebtedness" means at any time (without duplication), with respect
to any Person, whether recourse is to all or a portion of the assets of such
Person, and whether or not contingent, (i) any obligation of such Person for
money borrowed, (ii) any obligation of such Person evidenced by bonds,
debentures, notes, guarantees or other similar instruments, including, without
limitation, any such obligations incurred in connection with the acquisition of
Property, assets or businesses, excluding trade accounts payable made in the
ordinary course of business, (iii) any reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, (iv) any obligation of such Person issued
or assumed as the deferred purchase price of Property or services (but excluding
trade
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5
accounts payable or accrued liabilities arising in the ordinary course of
business, which in either case are not more than 60 days overdue or which are
being contested in good faith) (v) any Capitalized Lease Obligations of such
Person, (vi) the maximum fixed redemption or repurchase price of Disqualified
Stock of such Person and, to the extent held by other Persons, the maximum fixed
redemption or repurchase price of Disqualified Stock of such Person's
Subsidiaries, at the time of determination, (vii) the principal amount of any
Interest Hedging Obligations or Exchange Rate Obligations of such Person at the
time of determination, (viii) any Attributable Indebtedness with respect to any
Sale and Leaseback Transaction to which such Person is a party and (ix) any
obligation of the type referred to in clauses (i) through (viii) of this
definition of another Person and all dividends and distributions of another
Person the payment of which, in either case, such Person has guaranteed or is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise. For the purposes of the preceding sentence, the maximum fixed
repurchase price of any Disqualified Stock that does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Stock as if such Disqualified Stock were repurchased on any date on which
Indebtedness shall be required to be determined pursuant hereto. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability of any guarantees at such date.
"Interest" shall have the meaning provided in Section 2.5.
"Interest Hedging Obligation" means, with respect to any Person, an
obligation of such Person pursuant to any interest rate swap agreement, interest
rate cap, collar or floor agreement or other similar agreement or arrangement
designed to protect against or manage such Person's or any of its Subsidiaries'
exposure to fluctuations in interest rates.
"Interest Rate" shall mean a rate per annum equal to the Eurodollar
Rate plus 3%, provided that, from and after the 180th day following termination
of the Merger Agreement, such Interest Rate shall be equal to twenty-five
percent (25%) per annum.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
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6
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
financing lease having substantially the same economic effect as any of the
foregoing).
"Loan Commitment" means the maximum aggregate amount of $30,000,000;
provided that in no event shall the Loan Commitment of either Lender exceed
$15,000,000, individually.
"Loan Documents" shall mean this Agreement, the Notes and the Security
Agreement as in effect from time to time.
"Loan Party" shall mean and include the Borrower and its Subsidiaries.
"Loans" shall have the meaning provided in Section 2.1(a).
"Merger Agreement" shall have the meaning provided in the first
Whereas clause as in effect from time to time, and all references herein to the
Merger Agreement shall be references thereto regardless of whether or not such
agreement shall have been terminated.
"Net Debt Proceeds" shall mean, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Sale Proceeds" shall mean, for any sale, lease, transfer or
disposition, the gross cash proceeds received from such transaction, net of the
reasonable costs of such transaction and the incremental taxes paid or payable
as a result of such transaction and any reasonable reserves established in
connection therewith as determined in good faith by the Borrower.
"Note" and "Notes" shall have the meanings provided in Section 2.4.
"Notice of Borrowing" shall have the meaning provided in Section 2.2.
"Notice of Conversion Election" shall have the meaning provided in
Section 8.2.
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7
"Obligations" shall mean all obligations, liabilities and Indebtedness
of every nature of the Borrower from time to time owing to the Lenders under or
in connection with this Agreement or any other Loan Document.
"Permitted Indebtedness" shall mean Permitted Interim Financing and
Purchase Money Indebtedness and Indebtedness outstanding on the date hereof
under Existing Debt Agreements.
"Permitted Interim Financing" shall mean Indebtedness for borrowed
money incurred by the Borrower provided that (i) the Net Debt Proceeds therefrom
shall be applied in accordance with Section 2.7, (ii) the maturity date thereof
extends to at least 366 days beyond the Final Maturity Date, (iii) such
Indebtedness is unsecured and is not guaranteed by any Subsidiary of the
Borrower, (iv) such Indebtedness contains representations, warranties, covenants
and agreements which are not more restrictive, individually or taken as a whole,
than those in effect hereunder, (v) such Indebtedness is subject to
subordination and intercreditor arrangements satisfactory to the Lenders (and
appropriate to reflect the senior, secured nature of the Obligations) and (vi)
such Indebtedness otherwise satisfies the requirements of Section
7.01(a)(x)(A)(II) of the Merger Agreement.
"Permitted Liens" shall mean (a) Liens for taxes, levies, assessments
or other governmental charges not yet due or which are being contested in good
faith by appropriate proceedings; (b) carriers', warehousemen's, mechanics',
materialmen's, repairman's or other like Liens arising in the ordinary course of
business in respect of actions permitted hereunder which are not overdue for a
period of more than 60 days or which are being contested in good faith by
appropriate proceedings; (c) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in the
aggregate, do not materially interfere with the ordinary conduct of the business
of the Borrower or any Subsidiary; (d) Liens in existence on the date hereof
listed on Schedule 1.1(b), securing Indebtedness arising under the Existing Debt
Agreements, provided that no such Lien is spread to cover any additional
Property after the date hereof and that the amount of Indebtedness secured
thereby is not increased; and (e) Liens securing Purchase Money Indebtedness of
the Borrower and its Subsidiaries incurred to finance the acquisition of fixed
or capital assets; provided that no such Lien is spread to cover any additional
Property and that the amount of Indebtedness secured thereby is not increased.
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8
"Pledged Shares" means the Equity Securities that are subject to the
Lien of the Security Agreement and any and all dividends, distributions,
payments and proceeds thereof, as more particularly defined in the Security
Agreement.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible.
"Purchase Money Indebtedness" shall mean Indebtedness of the Borrower
and its Subsidiaries incurred to finance the acquisition of fixed or capital
assets (including pursuant to any permitted Sale and Leaseback Transaction under
Section 6.6(iv)) so long as the principal amount thereof does not exceed 100% of
the fair market value of the asset so acquired at the time of incurrence. Any
asset acquired with proceeds of Purchase Money Indebtedness shall be deemed to
be a capital asset subject to restrictions in Section 7.01(a)(xi) of the Merger
Agreement.
"Receivables" shall have the meaning provided in Section 4.11.
"Sale and Leaseback Transaction" means, with respect to any Person,
any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a Subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries.
"Security Agreement" means the Guarantee and Collateral Agreement,
dated the date hereof, to be executed by the Borrower, a form of which is
attached as Exhibit B hereto.
"Subsidiary" shall have the meaning ascribed thereto in the Governance
Agreement.
"Third Party Tender Offer" shall have the meaning ascribed thereto in
the Governance Agreement.
"Trading Day" means, with respect to a securities exchange or
automated quotation system, a day on which such exchange or system is open for a
full day of trading.
"Transactions" shall mean each of the transactions contemplated by the
Loan Documents.
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9
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITY.
Section 2.1 Term Loans. (a) Subject to and upon the terms and
conditions herein set forth, each Lender severally agrees, at any time and from
time to time on and after the Availability Date and prior to the Final Maturity
Date, to make term loans (collectively, "Loans") to the Borrower, in the case of
each Borrowing, in an amount equal to one-half of the amount requested in the
relevant Notice of Borrowing, which Loans shall not at any time exceed in
aggregate principal amount at any time outstanding the Loan Commitment.
(b) Loans may be voluntarily prepaid pursuant to Section 2.6 and
shall be mandatorily prepaid pursuant to Section 2.7. Any amounts so prepaid may
not be reborrowed. The Loan Commitment shall expire and the Loans shall mature
on the Final Maturity Date, without further action on the part of the Lender.
(c) Each Borrowing under this Section 2.1 shall be in the
aggregate maximum amount of the lesser of (i) $5,000,000 or (ii) the remaining
unborrowed amount of the Loan Commitment.
Section 2.2 Notice of Borrowing. Whenever the Borrower desires to
borrow hereunder, the Borrower's Chief Financial Officer shall make a formal
request to each Lender for such Borrowing by giving each Lender prior written
notice thereof (each such notice, a "Notice of Borrowing") on or before 10:00
a.m., New York City time, at least two Business Days prior to the date requested
for such Borrowing. Each Notice of Borrowing shall specify (a) the aggregate
principal amount of the requested Borrowing, (b) the proposed date of the
Borrowing (which shall be a Business Day and which shall not be less than ten
Business Days from the last date of Borrowing), (c) the proposed use of the
proceeds of any such Borrowing, which use of proceeds shall be in compliance
with Section 6.7 and (d) that each of the conditions set forth in Section 3 has
been, and remains, satisfied as of the date of such Notice of Borrowing.
Section 2.3 Disbursement of Funds. Upon receipt of a Notice of
Borrowing delivered in accordance with and in compliance with Section 2.2 above,
on the date specified in such Notice of Borrowing, each Lender will make
available one-half of the aggregate principal amount of the Borrowing requested
to be made on such date, in U.S. dollars by wire transfer in immediately
available funds to an account specified in a written instrument signed by the
Chief Financial Officer of the Borrower and delivered to
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10
such Lender, together with any Notice of Borrowing. The failure of a Lender to
fund any Loan to be made by it shall not relieve the other Lender from its
obligation to fund any Loan to be made by it.
Section 2.4 The Notes. The Borrower's obligation to pay the principal
of, and Interest on, the Loans made by a Lender hereunder, shall be evidenced by
a promissory note (each a "Note," and collectively the "Notes"), payable to such
Lender duly executed and delivered by the Borrower, substantially in the form of
Exhibit A hereto. The Borrower hereby irrevocably authorizes each of the Lenders
to endorse the date and amount of each Loan made by such Lender and any payment
and repayment of the principal amount thereof or Interest thereon, on the
Schedule of Principal, Conversion and Repayment attached to such Note and
constituting a part thereof, which endorsement shall constitute prima facie
evidence of the information so endorsed; provided, however, that any failure of
a Lender to make such endorsement shall not affect the obligation of the
Borrower to make any payments hereunder.
Section 2.5 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Loan ("Interest") at the Interest
Rate in effect from time to time, in respect of such Loan, from the date of the
making of such Loan until the earlier of (i) the date on which such Loan shall
be paid in full and (ii) the Final Maturity Date, such Interest to be computed
on the basis of a 360-day year and the actual number of days elapsed.
(b) Overdue principal and, to the extent permitted by law,
overdue Interest in respect of each Loan, and any other overdue amount payable
hereunder (including, without limitation, all amounts outstanding following an
Event of Default) shall bear interest at a rate per annum (the "Default Rate")
equal to the rate which is 2% in excess of the rate then borne by such Loans,
computed on the basis of a 360-day year and the actual number of days elapsed;
provided that nothing in any Loan Document shall permit the Lenders to receive
interest in excess of the maximum rate of interest permitted by law.
(c) Interest on each Loan shall accrue from and including the
date of the Borrowing thereof to but excluding the date of any repayment thereof
(provided that any Loan borrowed and repaid on the same day shall accrue one
day's interest) and shall be payable on the Final Maturity Date.
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11
(d) In the event that a Lender elects to convert any accrued and
unpaid amount of interest on any Loan into CDnow Common Stock in accordance with
the provisions of Section 8 hereof, the Borrower's obligation to pay Interest on
such Loan, pursuant to this Section 2.5, shall be deemed satisfied by the
delivery of the CDnow Common Stock upon conversion of such accrued and unpaid
interest as therein provided, to the extent of such conversion. Each Lender
agrees to give Borrower at least one Business Day's notice of its intent to
convert any Interest otherwise due and payable, or to become due and payable,
into CDnow Common Stock in accordance with this Agreement.
Section 2.6 Voluntary Prepayments. The Borrower shall have the right
to prepay in accordance with Section 2.9 the Loans in whole or in part from time
to time on the following terms and conditions: (i) the Borrower shall give the
Lenders written notice (or telephonic notice promptly confirmed in writing),
which notice shall be irrevocable, of its intent to prepay the Loans, at least
two, or after the Merger Agreement has terminated, five Business Days prior to a
prepayment, which notice shall specify the date (which shall be a Business Day),
the Loans and the amount of such prepayment and (ii) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or integral multiples
thereof.
Section 2.7 Mandatory Prepayments. (a) If the Borrower or any of its
Subsidiaries shall receive any proceeds from any sale, lease, transfer or
disposition to any Person of any of its Property or Equity Securities (other
than sales of inventory in the ordinary course of business and permitted Sale
and Leaseback Transactions) then the Borrower shall immediately upon receipt
thereof apply in accordance with Section 2.9 an amount in cash equal to 100% of
the Net Sale Proceeds from such sale, lease, transfer or disposition to the
Lenders as a mandatory repayment of outstanding Loans and reduction in the
remaining Loan Commitment in accordance with the requirements of Section 2.8.
(b) If the Borrower or any of its Subsidiaries shall receive any
proceeds from any incurrence by the Borrower or any of its Subsidiaries of
Permitted Interim Financing, then the Borrower shall immediately upon receipt
thereof apply in accordance with Section 2.9 an amount equal to 100% of the Net
Debt Proceeds from the Permitted Interim Financing to the Lenders as a mandatory
repayment of outstanding Loans and reduction in the
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12
remaining Loan Commitment in accordance with the requirements of Section 2.8.
(c) If the Borrower enters into any Acquisition Agreement
relating to a CDnow Takeover Proposal or there is consummated a Third Party
Tender Offer or the Merger Agreement is terminated pursuant to Section 10.01 (c)
(to the extent that one or more of the breaches of the representations,
warranties, covenants and agreements of CDnow that formed the basis of such
termination could reasonably be expected to have been avoided had CDnow used its
reasonable best efforts to ensure the continued accuracy, compliance and
performance of its representations, warranties, covenants and agreements under
the Merger Agreement) or Section 10.01(d) thereof, then (i) the Loan Commitment
shall automatically and immediately terminate and the unpaid aggregate principal
amount of, and any and all accrued Interest on, the Loans and any and all other
Obligations shall automatically become immediately due and payable, with all
Interest from time to time accrued thereon and without presentation, demand or
protest or other requirements of any kind (including without limitation,
valuation and appraisement, due diligence, presentment, notice of intent to
demand or accelerate and notice of acceleration), all of which are hereby
expressly waived by the Borrower, and the obligation of the Lenders to make any
Loans hereunder shall thereupon terminate.
Section 2.8 Repayment; Reduction in Loan Commitment. Each amount
required or permitted to be applied to repay outstanding Loans under Section 2.6
or 2.7 shall be applied first, to prepay accrued but unpaid Interest on the
Loans and other Obligations (other than the principal on the Loans) hereunder
and second to prepay amounts in respect of principal outstanding under the
Loans. The excess of any Net Debt Proceeds or Net Sale Proceeds over amounts
required to repay principal and Interest shall reduce the remaining unused Loan
Commitment. Each reduction shall be allocated pro rata between the Lenders. By
three Business Days prior notice to the Lenders, the Borrower may at any time
reduce the amount of the Loan Commitment to an amount not less than the
outstanding principal amount of the Loans. By notice to the Lenders, the
Borrower may, at any time when no Loans are outstanding and no Obligations
remain unpaid, terminate the Loan Commitment.
Section 2.9 Method and Place of Payment. (a) All payments and
prepayments of principal and Interest under this Agreement and the Notes shall
be made in equal amounts to each Lender not later than 12:00 noon, New York City
time, on the date when due and shall be made in lawful money
<PAGE>
13
of the United States of America by wire transfer in immediately available funds
to such account as shall be designated by each Lender.
Any funds received by the Lenders after such time shall, for all
purposes hereof, be deemed to have been paid on the next succeeding Business
Day.
(b) Whenever any payment to be made hereunder or under the Notes
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, Interest shall be payable at the applicable rate
during such extension.
(c) All payments made by the Borrower hereunder and under any
Note shall be made irrespective of, and without any reduction for, any setoff or
counterclaims, including, without limitation, any setoff or counterclaims
arising due to a breach or alleged breach by a Lender or any of its Subsidiaries
or Affiliates of any other agreement to which a Lender or any of its
Subsidiaries or Affiliates and any of the Loan Parties are parties.
Section 2.10 Taxes. All payments made by the Borrower under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future Taxes. If any Taxes are required to
be withheld from any amounts payable to the Lender hereunder or under any Note,
the amounts so payable to the Lender shall be increased to the extent necessary
to yield to the Lender (after payment of all Taxes) Interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the specific Note. Whenever any Taxes are payable by the Borrower,
as promptly as possible thereafter, the Borrower shall send to the applicable
Lender a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to a Lender the required receipts
or other required documentary evidence, the Borrower shall indemnify such Lender
for any incremental taxes, interest or penalties that may become payable by such
Lender as a result of any such failure. The agreements in this Section 2.10
shall survive the termination of this Agreement and the payment of the Notes and
all other Obligations.
<PAGE>
14
SECTION 3. CONDITIONS PRECEDENT.
Section 3.1 Conditions Precedent. This Agreement shall become
effective upon satisfaction of the following conditions precedent:
(a) Loan Documents.
(i) Convertible Loan Agreement. The Borrower shall have
executed and delivered this Agreement to the Lenders.
(ii) Security Agreement. Each Loan Party shall have executed
and delivered the Security Agreement to the Lenders.
(iii) Notes. The Borrower shall have executed and delivered
to each Lender a Note as provided herein.
(b) Corporate Documents. The Lenders shall have received the
Articles of Incorporation of each Loan Party as in effect on the effective date
of this Agreement, certified to be true, correct and complete by the Secretary
of State of the State of the jurisdiction of incorporation of such Loan Party.
(c) Certified Resolutions, etc. The Lenders shall have received a
certificate of the Secretary or Assistant Secretary of each Loan Party dated the
date hereof certifying (i) the names and true signatures of the incumbent
officers of such Person authorized to sign the Loan Documents to which it is a
party, (ii) the By-Laws of such Person as in effect on the date of the adoption
of the resolutions referred to in clause (iii), (iii) the resolutions of such
Person's Board of Directors approving and authorizing the execution, delivery
and performance of the Loan Documents to which it is a party, and (iv) that
there have been no changes in the Articles of Incorporation of such Person since
the date of the most recent certification thereof by the appropriate Secretary
of State.
(d) Delivery of Collateral and Pledged Shares. The Borrower shall
have delivered to the Lender stock certificates representing the Pledged Shares,
registered in the name of the Borrower, accompanied by undated stock powers duly
executed in blank.
(e) Actions to Perfect Liens. The Lenders shall have received
evidence in form and substance satisfactory to them that all filings,
recordings,
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15
registrations and other actions, including, without limitation, the filing of
duly executed financing statements on form UCC-1, necessary or, in the opinion
of the Lenders, desirable to perfect the Liens created by the Security Agreement
shall have been completed.
(f) Lien Searches. The Lenders shall have received the results of
a recent search by a Person satisfactory to the Lenders, of the Uniform
Commercial Code, judgement and tax lien filings which may have been filed with
respect to personal property of the Loan Parties, and the results of such search
shall be satisfactory to the Lenders.
(g) Representations. The representations and warranties set forth
in Section 4 and in the Security Agreement shall be true and correct.
Section 3.2 Conditions Precedent to All Loans. In addition to the
provisions of Section 2.2, the obligation of the Lenders to make any Loan is
subject to the satisfaction on the date such Loan is made of the following
conditions precedent:
(a) No Event of Default. No Event of Default hereunder shall have
occurred and be continuing on such date either before or after giving effect to
the making of such Loans.
(b) No Injunction. No law or regulation shall have been adopted,
no order, judgment or decree of any Governmental Entity shall have been issued,
and no litigation shall be pending, that is seeking to enjoin, prohibit or
restrain, the making or repayment of the Loans.
(c) No Termination of Merger Agreement. The Merger Agreement
shall not have been terminated (i) by Sony or Time Warner pursuant to Section
10.01(c) (to the extent that one or more of the breaches of the representations,
warranties, covenants and agreements of CDnow that formed the basis of such
termination could reasonably be expected to have been avoided had CDnow used its
reasonable best efforts to ensure the continued accuracy, compliance and
performance of its representations, warranties, covenants and agreements under
the Merger Agreement) or Section 10.01(d) thereof; or (ii) by CDnow other than
pursuant to Sections 10.01(b)(i) or Section 10.01(e) thereof.
(d) No Third Party Tender Offer or Takeover Proposal. There shall
not have been commenced a Third Party
<PAGE>
16
Tender Offer and CDnow shall not have entered into an Acquisition Agreement with
respect to a CDnow Takeover Proposal.
(e) Available Cash. The aggregate cash and cash equivalents of
the Borrower and its Subsidiaries shall be less than $7,500,000.
The acceptance of the proceeds of each Loan shall constitute a
representation and warranty by the Borrower to the Lenders that all of the
conditions required to be satisfied under this Section 3 in connection with the
making of such Loan have been satisfied.
Section 3.3 Conditions Precedent to First Loan. In addition to the
provisions of Section 3.2, the obligation of each Lender to make its first Loan
hereunder is subject to the receipt by the Lenders of a legal opinion, dated the
date of Borrowing of the first Loan, from counsel to the Loan Parties,
concerning due authorization, execution, delivery and the enforceability of this
Agreement, the Notes and the Security Agreement, absence of conflicts with laws,
articles, by-laws, agreements, absence of consents and approvals and the
perfection of the Lenders' security interest in the Collateral, all in form and
substance reasonably satisfactory to the Lenders.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement and to
make the Loans, the Borrower makes the following representations and warranties,
which shall survive the execution and delivery of this Agreement and the Notes
and the making of the Loans:
Section 4.1 Merger Agreement Representations. Each of the
representations and warranties of the Borrower set forth in Section 3 of the
Merger Agreement is incorporated herein by reference as if set forth by length
as the representations and warranties of the Borrower hereunder.
Section 4.2 Authority Relative to this Agreement. Each Loan Party has
full corporate power and authority to execute, deliver and perform its
obligations under the Loan Documents to which it is a party and to consummate
the Transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and the Loan Documents to which it is a party and the
consummation of the Transactions contemplated hereby and thereby have been duly
and validly authorized by all corporate and shareholder
<PAGE>
17
action, and no other corporate proceedings on the part of any Loan Party are
necessary to authorize the Loan Documents to which it is a party or to
consummate the Transactions contemplated hereby and thereby. The Loan Documents
to which it is a party have been duly and validly executed and delivered by each
Loan Party party thereto, and constitute valid and binding agreements of each
Loan Party party thereto, enforceable against such Loan Party in accordance with
their respective terms.
Section 4.3 Consents and Approvals; No Violation. (a) Except as set
forth in Schedule 4.3, the execution and delivery by each Loan Party of each
Loan Document to which it is a party will not (i) conflict with or result in any
breach of any provision of the Articles of Incorporation or Bylaws of such Loan
Party, (ii) require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority, (iii) result
in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement or other instrument or obligation
to which any Loan Party is a party or by which any Loan Party or any of its
assets may be bound, except for such defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers or consents have
been obtained, or (iv) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to any Loan Party or any of its assets.
(b) Except for any registration statement filed with the United
States Securities and Exchange Commission (the "SEC") pursuant to Section 9
hereof, no declaration, filing or registration with, or notice to, or
authorization, consent or approval of any governmental or regulatory body or
authority is necessary for the consummation by the Borrower of the Transactions.
Section 4.4 Margin Regulations. No part of the proceeds of any Loan
will be used by the Borrower to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
Neither the making of any Loan nor the use of the proceeds thereof will violate
or be inconsistent with the provisions of Regulations T, U or X of the Federal
Reserve Board.
Section 4.5 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment
<PAGE>
18
company," within the meaning of the Investment Company Act of 1940, as amended.
Section 4.6 Absence of Indebtedness and Liens. Neither the Borrower
nor any Subsidiary has any liabilities or obligations, either accrued, absolute,
contingent, or otherwise, in respect of any Indebtedness or Liens, except (a)
under Existing Debt Agreements, (b) Permitted Indebtedness and (c) Permitted
Liens.
SECTION 5. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that from the Availability Date and
until the Loan Commitment has terminated and the Obligations are paid in full:
Section 5.1 Information Covenants. The Borrower will furnish to each
Lender:
(a) Quarterly Statements -- within 45 days after the end of each
quarterly fiscal period in each fiscal year of the Borrower (other than the last
quarterly fiscal period of each such fiscal year), duplicate copies of
(i) a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statement of operations, shareholders'
equity and changes in financial position of the Borrower and its Subsidiaries
for such quarter and (in the case of the second and third quarters) for the
portion of the fiscal year ending with such quarter, in each case setting forth
in comparative form the figures for the corresponding periods in the previous
fiscal year, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by the Chief Financial Officer of the
Borrower as fairly presenting, in all material respects, the financial position
of the companies being reported on and their results of operations and cash
flows, except for the absence of footnotes and changes resulting from year-end
adjustments, provided that delivery within the time period specified above of
the Borrower's Quarterly Report on Form 10-Q prepared in compliance with the
requirements therefor and filed with the SEC shall be deemed to satisfy the
requirements of this Section 5.1;
(b) Annual Statements - within 90 days after the end of each
fiscal year of the Borrower, duplicate copies of
<PAGE>
19
(i) a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such year, and
(ii) consolidated statements of operations, shareholders'
equity and changes in financial position of the Borrower and its Subsidiaries
for such year, setting forth in each case in comparative form the figures for
the previous fiscal year, prepared in accordance with GAAP, and accompanied by
an opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and cash flows and
have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, provided that
the delivery within the time period specified above of the Borrower's Annual
Report on Form 10-K for such fiscal year (together with the Borrower's annual
report to shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor and filed
with the SEC, shall be deemed to satisfy the requirements of this Section
5.1(b);
(c) Audit Reports, etc. -- promptly (and in any event within five
Business Days) after receipt thereof, copies of all management letters and
reports submitted to the Borrower or any of its Subsidiaries by independent
certified public accountants in connection with any annual, interim or special
audit of the Borrower or any Subsidiary made by such accountants;
(d) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or proxy
statement sent by the Borrower or any Subsidiary to public securities holders
generally, and (ii) each regular or periodic reports, each registration
statement (without exhibits except as expressly requested by a Lender), and each
prospectus and all amendments thereto filed by the Borrower or any Subsidiary
with the SEC and of all press releases and other statements made available
generally by the Borrower or any Subsidiary to the public concerning
developments that are material;
(e) Notice of Default or Event of Default -- immediately (and in
any event within two Business Days) after the Borrower becomes aware of the
existence of any
<PAGE>
20
Default or Event of Default, a written notice specifying the nature and period
of existence thereof and what action the Borrower is taking or proposes to take
with respect thereto;
(f) Notices from Governmental Authority -- promptly, and in any
event within five days of receipt thereof, copies of any notice to the Borrower
or any Subsidiary from any federal, state or foreign Governmental Entity
relating to any order, ruling, statute or other law or regulation that could
reasonably be expected to have a CDnow Material Adverse Effect or that could
reasonably be expected to impair the ability of the Borrower to perform any of
its obligations hereunder or under any of the Loan Documents;
(g) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations, affairs,
financial condition, assets or property of the Borrower or any of its
Subsidiaries or relating to the ability of the Borrower to perform its
obligations hereunder, under the Notes and under the Security Agreement as from
time to time may be reasonably requested by the Lenders; and
(h) Notice of Prepayment Transaction -- two, or after the Merger
Agreement has terminated, five Business Days prior to the Borrower or any
Subsidiary entering into any transaction or taking any action which would result
in a mandatory prepayment under Section 2.7(a) and (b), a written notice
specifying the nature thereof.
Section 5.2 Officer's Certificate. Each set of financial statements
delivered to a Lender pursuant to Section 5.l(a) or Section 5.l(b) hereof shall
be accompanied by a certificate of the Chief Financial Officer containing a
statement that such officer has reviewed the relevant terms hereof and has made,
or caused to be made, under his or her supervision, a review of the transactions
and conditions of the Borrower and its Subsidiaries from the beginning of the
quarterly or annual period covered by the statements then being furnished to the
date of the certificate and that such review shall not have disclosed the
existence during such period of any condition or event that constitutes a
Default or an Event of Default or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what action
the Borrower or its Subsidiaries shall have taken or proposes to take with
respect thereto.
Section 5.3 Inspection. Each Lender, or any person designated from
time to time by such Lender, shall
<PAGE>
21
have the right, from time to time hereafter, to call at the Borrower's or its
Subsidiaries' place or places of business during ordinary business hours, and,
without hindrance or delay, (a) to inspect, audit, check, and makes copies of
and extracts from the Borrower's and its Subsidiaries' books, records, journals,
orders, receipts, and any correspondence and other data relating to the business
of the Borrower or its Subsidiaries or to any transactions between the parties
hereto, and (b) to discuss the affairs, finances, and business of the Borrower
and its Subsidiaries with the officers of the Borrower and its Subsidiaries.
Section 5.4 Conduct of Business. (a) The Borrower shall, and shall
cause each Subsidiary to (i) maintain its existence and qualification to do
business in good standing in each jurisdiction where the failure to be so
qualified would have a material adverse effect on the financial condition of the
Borrower and its Subsidiaries taken as a whole, (ii) maintain in full force and
effect all licenses, bonds, franchises, leases, patents, contracts, and other
rights necessary to the conduct of its business, and (iii) comply in all
material respects with all applicable laws and regulations of any federal,
state, or local governmental authority, including those relating to
environmental matters, labor and employment laws and employee benefit matters.
(b) The Borrower shall, and shall cause its Subsidiaries to, duly
pay and discharge (i) all lawful claims, whether for labor, materials, supplies,
services, or anything else, which might or could, if unpaid, become a lien or
charge upon its property or assets, unless and to the extent only that the
validity thereof is being contested in good faith and by such appropriate
proceedings, (ii) all of its trade bills when due in accordance with customary
practice, and (iii) all taxes, unless and to the extent that the validity
thereof is being contested by the Borrower in good faith and by appropriate
proceedings.
Section 5.5 Maintenance of Property; Insurance. (a) The Borrower shall
keep and maintain, and shall cause its Subsidiaries to keep and maintain, at
their sole cost and expense, (i) all Property necessary to the business of the
Borrower and its Subsidiaries in reasonably good working order and condition,
ordinary wear and tear excepted, (ii) insurance on their assets for the full
replacement value (or the full insurable value) thereof against loss or damage
by fire, theft, explosion, and all other hazards and risks ordinarily insured
against by other owners or users of such properties in similar businesses
similarly situated; and (iii) public liability insurance
<PAGE>
22
relating to the Borrower's and its Subsidiaries' ownership and use of their
assets.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Lenders of written notice
thereof, (ii) name the Security Agent (as such term is defined in the Security
Agreement) as insured party or loss payee, (iii) if reasonably requested by the
Lenders, include a breach of warranty clause and (iv) be reasonably satisfactory
in all other respects to the Lenders.
(c) All such policies of insurance shall be in such form and in
such amounts as is customary in the case of other owners or users of like
properties in similar businesses, with insurers as shall be reasonably
satisfactory to each Lender. Upon demand, the Borrower shall deliver to each
Lender the original (or certified) copy of each policy insurance, and evidence
of payment of all premiums for each such policy.
Section 5.6 Notice of Suit or Adverse Change in Business. The Borrower
shall give written notice to each Lender (a) as soon as possible, and in any
event within five business days after the Borrower receives actual notice
(written or oral) of any material proceeding(s) being instituted against the
Borrower or any Subsidiary in any federal, state, or local court or before any
commission or other regulatory body (federal, state, or local), and (b) as soon
as possible, and in any event within five business days after the Borrower
learns of any material adverse change in the financial condition, results of
operations, business, or assets of the Borrower and its Subsidiaries taken as a
whole.
Section 5.7 Books, Records, Inspections. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and accounts in
which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities.
SECTION 6. NEGATIVE COVENANTS.
The Borrower covenants and agrees that from the date hereof (except,
in the case of Sections 6.2 and 6.7, which shall be from the Availability Date)
until the Loan
<PAGE>
23
Commitment has terminated, and the Obligations are paid in full, without the
prior written consent of Lenders:
Section 6.1 Merger Agreement Covenants. The covenants and agreements
of the Borrower set forth in the first sentence of Section 7.01(a) and Sections
7.01(a)(i), (iii), (iv) (other than acquisitions made solely for Equity
Securities of the Borrower), (vii), (viii), (x)(B), (xi), (xiii), (xiv) as it
relates to clause (ix) of Section 3.18 of the Merger Agreement (provided that
the Borrower may consummate transactions of the type described in clause (B) of
such Section 3.18(ix) without regard to the dollar limits referred to therein so
long as such transactions (I) are on market terms, (II) do not extend for a
period of greater than thirty-six months, (III) are only entered into after good
faith consultations by the Borrower with the Lenders and (IV) are consummated at
a cost per customer target not in excess of the amount previously disclosed to
the Lenders (or, if lower, the cost per customer target then in effect)), and
(xv) of the Merger Agreement are hereby incorporated herein by reference as of
set forth at length and shall be covenants and agreements of the Borrower
hereunder. To the extent there is a waiver under the Merger Agreement then there
shall be deemed to be a waiver under this Agreement and, to the extent that
matters are set forth in the CDnow Disclosure Letter, they shall be deemed to be
set forth herein. For the avoidance of doubt, nothing contained herein shall
derogate from the Borrower's obligations to comply with every covenant and
agreement contained in the Merger Agreement during the term thereof in
accordance with the terms thereof.
Section 6.2 Changes in Business. The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any business which is
substantially different from that conducted by the Borrower, as the case may
be, on the date hereof.
Section 6.3 Limitation on Indebtedness. The Borrower will not,
and will not permit its Subsidiaries to, directly or indirectly, incur any
Indebtedness other than Permitted Indebtedness (so long as, in the case of
Permitted Interim Financing, the Net Debt Proceeds thereof are applied as
required by Section 2.7) and the Borrower will not issue any Disqualified Stock
or permit any of its Subsidiaries to issue any Disqualified Stock.
Section 6.4 Limitation on Issuances of Guarantees by
Subsidiaries. The Borrower will not permit any Subsidiary to guarantee,
directly or indirectly, any
<PAGE>
24
Indebtedness of the Borrower, other than Permitted Indebtedness.
Section 6.5 Limitation on Liens. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into,
create, incur, assume or suffer to exist any Liens of any kind (other than
Permitted Liens) on or with respect to any of their Property or assets now
owned or hereafter acquired, or any interest therein or any income or profits
therefrom.
Section 6.6 Limitation on Asset Sales. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, convey,
sell, lease, assign, transfer or otherwise dispose of any of its Property,
whether now on or hereafter acquired, except:
(i) obsolete Property disposed of in the ordinary course of
business;
(ii) the sale of inventory in ordinary course of business;
(iii) the sale or other disposition of any Property for fair
market value and for consideration consisting solely of cash and so long as the
Net Sale Proceeds thereof are applied as required by Section 2.8; and
(iv)(a) Sale and Leaseback Transactions in respect of capital
equipment acquired ninety days or less prior to consummation of such Sale and
Leaseback Transaction and (b) other Sale and Leaseback Transactions in respect
of which the Attributable Indebtedness does not exceed $1,000,000 in the
aggregate; provided that all of such Sale and Leaseback Transactions referred
to in both clauses (a) and (b) are for fair market value.
Section 6.7 Use of Proceeds. The Borrower will not use the
proceeds of any Loan for any purpose other than in the ordinary course of the
Borrower's business and to meet the ongoing working capital needs of the
Borrower.
Section 6.8 Limitation on Modifications of Certain Indebtedness.
The Borrower will not, and will not permit any of its Subsidiaries to, directly
or indirectly amend or modify, or permit the amendment or modification of, any
Existing Debt Agreement.
Section 6.9 Limitation on Negative Pledge Clauses. The Borrower
will not, and will not permit its Subsidiaries to, directly or indirectly,
enter into with any
<PAGE>
25
Person any agreement, other than (a) this Agreement and (b) any Purchase Money
Indebtedness permitted by this Agreement (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby), which
prohibits or limits the ability of the Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of its Property or
revenues, whether now owned or hereafter acquired.
SECTION 7. EVENTS OF DEFAULT.
Section 7.1 Events of Default. Each of the following events, acts,
occurrences or conditions shall constitute an Event of Default under this
Agreement, regardless of whether such event, act, occurrence or condition is
voluntary or involuntary or results from the operation of law or pursuant to or
as a result of compliance by any Person with any judgment, decree, order, rule
or regulation of any court or administrative or governmental body:
(a) Failure to Make Payments. The Borrower shall (i) default in
the payment when due of any principal of, or Interest on, the Loans or (ii)
default in the payment when due of any other amounts owing hereunder, and in the
case of the circumstances described in this clause (ii), such default shall
continue unremedied for three or more Business Days, provided, however, that in
the event that a Lender elects to convert any amount of principal or Interest
otherwise due under any of the Notes into CDnow Common Stock in accordance with
the provisions of Section 8 hereof, the amount so converted shall be deemed to
have been timely paid and the failure to make payment in respect thereof shall
not constitute a Default or Event of Default hereunder.
(b) Breach of Representations. The representations and warranties
of the Borrower set forth in Section 4 or in the Security Agreement shall,
individually or in the aggregate, have been untrue or inaccurate in any material
respect when made.
(c) Breach of Covenants.
(i) The Borrower shall fail to perform or observe any
agreement, covenant or obligation arising under Section 6 hereof or Section 5 of
the Security Agreement.
(ii) The Borrower shall fail to perform or observe any
agreement, covenant or obligation arising under this Agreement or other Loan
Agreement
<PAGE>
26
Document (except those described in subsections (a) and (b)(i) above),
and such failure shall continue for 15 days after notice thereof to the
Borrower.
(d) Default Under Other Agreements. Any Loan Party shall default
in the payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) of any amount owing in respect of any
Indebtedness (including any Indebtedness under the Existing Debt Agreements)
individually or in the aggregate in excess of $250,000 other than the
Obligations; or any Loan Party shall default in the performance or observance of
any obligation or condition with respect to any such Indebtedness or any other
event shall occur or condition exist, if the effect of such default, event or
condition is to accelerate the maturity of any such Indebtedness or to permit
(without regard to any required notice or lapse of time) the holder or holders
thereof, or any trustee or agent for such holders, to accelerate the maturity of
any such Indebtedness, or any such Indebtedness shall become or be declared to
be due and payable prior to its stated maturity other than as a result of a
regularly scheduled payment.
(e) Loan Documents. Any Loan Document shall at any time and for
any reason not be or shall cease to be valid, binding and enforceable against
any Loan Party or any Loan Party or any other Person shall contest or deny the
validity and enforceability of any Loan Document or shall disaffirm or repudiate
any of its or any Loan Party's obligations thereunder, or the Obligations (or
any of them) shall fail to be secured by a first-priority perfected security
interest in the Collateral.
(f) Bankruptcy, etc. (i) Any Loan Party shall commence a
voluntary case concerning itself under the Bankruptcy Code; or (ii) an
involuntary case is commenced against any Loan Party and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or (iii) a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of any Loan Party or any Loan Party commences any other proceedings
under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to any Loan Party or there is
commenced against any Loan Party any such proceeding which remains undismissed
for a period of 60 days; or (iv) any order of relief or other order approving
any such case or proceeding is entered; or (v) any Loan Party is adjudicated
insolvent or bankrupt; or (vi) any Loan Party makes a general
<PAGE>
27
assignment for the benefit of creditors; or (vii) any Loan Party shall fail to
pay, or shall state that it is unable to pay, or shall be unable to pay, its
debts generally as they become due; or (viii) any Loan Party shall cooperate
with its creditors with a view to arranging a composition or adjustment of its
debts; or (ix) any Loan Party shall by any act or failure to act consent to,
approve of or acquiesce in any of the foregoing; or (x) any corporate action is
taken by any Loan Party for the purpose of effecting any of the foregoing.
Section 7.2 Rights and Remedies. Upon the occurrence of any Event
of Default described in Section 7.1(f), the Loan Commitment shall automatically
and immediately terminate and the unpaid principal amount of, and any and all
accrued interest on, the Loans and any and all other Obligations shall
automatically become immediately due and payable, with all additional interest
from time to time accrued thereon and without presentation, demand, or protest
or other requirements of any kind (including, without limitation, valuation and
appraisement, due diligence, presentment, notice of intent to demand or
accelerate and notice of acceleration), all of which are hereby expressly waived
by the Borrower, and the obligation of the Lenders to make any Loan hereunder
shall thereupon terminate; and upon the occurrence and during the continuance of
any other Event of Default, without limiting the other provisions of this
Agreement (including Section 2.7), each Lender may, by written notice to the
Borrower, (i) declare that its Loan Commitment is terminated, whereupon such
Loan Commitment and the obligation of such Lender to make any Loan hereunder
shall immediately terminate, and (ii) declare the unpaid principal amount of and
any and all accrued and unpaid interest on the Loans of such Lender and any and
all other Obligations owed to such Lender to be, and the same shall thereupon
be, immediately due and payable with all additional Interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower.
SECTION 8. CONVERSION.
Section 8.1 Conversion Privilege and Conversion Price. Subject
to and upon compliance with the provisions of this Section 8, each Lender, at
its sole option, may, at any time after termination of the Merger Agreement and
from time to time thereafter, convert (a) each Note or any
<PAGE>
28
portion of the principal amount thereof which equals $500,000 or any integral
multiple thereof, and (b) the amount of accrued and unpaid Interest on the Loan
represented by such Note (including without limitation any overdue Interest
accruing at the Default Rate), into a number of fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100 of a share) of
CDnow Common Stock equal to the quotient obtained by dividing (i) the aggregate
of such principal amount and accrued and unpaid interest to be so converted by
(ii) the Conversion Price, determined as hereinafter provided, in effect at the
time of conversion.
Any certificates evidencing CDnow Common Stock issued upon the
conversion of the Note shall bear such legends, including legends reflecting
restrictions on transfer required in order to maintain compliance with the
provisions of the Securities Act, as the Borrower shall deem to be necessary or
appropriate.
Section 8.2 Exercise of Conversion Privileges. In order to exercise
the conversion privilege with respect to any amount of principal or Interest
(including any defaulted Interest) of any Note, a Lender shall, in the case of a
conversion with respect to all outstanding principal only, surrender such Note,
duly endorsed or assigned to the Borrower or in blank, at the principal
executive offices of the Borrower, and, in all cases, deliver a Notice of
Conversion Election (in the form attached hereto as Exhibit C, a "Notice of
Conversion Election") to the effect that such Lender elects to convert such Note
or, if less than the entire principal amount and Interest thereof is to be
converted, the portion thereof to be converted.
Any amount of principal and Interest of a Note shall be deemed to have
been converted immediately prior to the close of business on the day of delivery
of the relevant Notice of Conversion Election in accordance with the foregoing
provisions, and at such time the rights of such Lender as a holder of the Note
with respect to the principal amount to be so converted (or, in the case of
conversion of any Interest payable on the Note, the right of Lender to be paid
such Interest in cash) shall cease, and the Person or Persons entitled to
receive the CDnow Common Stock of the Borrower issuable upon conversion shall be
treated for all purposes as the record holder or holders of such CDnow Common
Stock as and after such time. As promptly as practicable on or after conversion
date, the Borrower shall issue and shall deliver to such Lender, at the address
specified by such Lender in writing, a certificate or certificates for the
number of full shares of CDnow Common
<PAGE>
29
Stock of the Borrower issuable upon conversion, together with payment in lieu of
any fraction of a share, as provided in Section 8.3.
Section 8.3 Fractions of Shares. No fractional share of CDnow Common
Stock shall be issued upon conversion of a Note. Instead of any fractional share
of such CDnow Common Stock which would otherwise be issuable upon conversion of
such Note (or a portion thereof), or upon the conversion of any Interest
(including defaulted Interest) payable with respect to such Note, the Borrower
shall pay a cash adjustment in respect of such fractional share in an amount
equal to such fraction multiplied by the Closing Price of the CDnow Common Stock
at the close of business on the day of conversion (or, if such day is not a
Trading Day, on the Trading Date immediately preceding such day).
Section 8.4 Adjustment of Conversion Price. The Conversion Price then
applicable to any Note shall be appropriately adjusted in accordance with the
anti-dilution provisions attached hereto as Exhibit D.
Section 8.5 Notice of Adjustments of Conversion Price. Whenever the
Conversion Price of any Note is adjusted, the Borrower shall compute the
adjusted Conversion Price in accordance with Section 8.4 and shall prepare a
certificate signed by the Chief Financial Officer of the Borrower setting forth
the adjusted Conversion Price and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall be provided to the
Lenders.
Section 8.6 Company to Reserve CDnow Common Stock. The Borrower shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued CDnow Common Stock or out of its CDnow Common Stock held
in treasury, for the purpose of effecting the conversion of Notes and any
accrued and unpaid Interest thereon, the full number of shares of its CDnow
Common Stock then issuable upon the conversion of the entire principal amount of
the aggregate Loan Commitment and all Interest that would accrue on such
aggregate amount up to and including the Final Maturity Date.
Section 8.7 Taxes on Conversions. The Borrower will pay any and all
original issuance, transfer, stamp and other similar taxes that may be payable
in respect of the issue or delivery of shares of its Common Shock on conversion
of Notes and any accrued and unpaid Interest thereon pursuant hereto. The
Borrower shall not, however, be required to pay any tax which may be payable in
respect
<PAGE>
30
of any transfer involved in the issue and delivery of shares of its CDnow Common
Stock in a name other than that of a Lender or other holder of the Note, portion
thereof or Interest thereon to be converted, and no such issue or delivery shall
be made unless and until the person requesting such issue has paid to the
Borrower the amount of any such tax, or has established to the satisfaction of
the Borrower that such tax has been paid.
Section 8.8 Covenant as to CDnow Common Stock.
(a) The Borrower covenants that all shares of its CDnow Common
Stock which may be issued upon conversion of Notes or any Interest payment in
respect thereof will upon issue be validly issued, fully paid and nonassessable.
(b) The Borrower shall from time to time take all action
necessary so that the CDnow Common Stock which may be issued upon conversion of
Notes or any Interest payment in respect thereof, immediately upon their
issuance (or, if such CDnow Common Stock is subject to restrictions on transfer
under the Securities Act, upon their resale pursuant to any effective
registration statement under the Securities Act), will be listed on the
principal securities exchanges, interdealer quotation systems and markets, if
any, on which shares of CDnow Common Stock are then listed or quoted.
Section 8.9 Investment Intent; Private Placement. Each Lender
represents and warrants to the Borrower that:
(a) The Lender is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
equity securities presenting an investment decision like that involved in the
acquisition of CDnow Common Stock upon the conversion of Notes and any accrued
and unpaid Interest thereon pursuant to this Section 8.
(b) Upon the conversion of any Notes or any Interest payment in
respect thereof, the Lender will be acquiring CDnow Common Stock issued upon
such conversion for investment for its own account only and not with a view to,
or for resale in connection with, any "distribution" thereof within the meaning
of the Securities Act. The Lender has no present intention of selling, granting
and participation in, or otherwise distributing the CDnow Common Stock, except
in compliance with the Securities Act or pursuant to an available exemption
thereunder.
<PAGE>
31
(c) The Lender understands that the CDnow Common Stock has not
been registered under the Securities Act or registered or qualified under any
state securities law in reliance on specific exemptions therefrom, which
exemptions may depend upon, among other things, the bona fide nature of the
Lender's investment intent as expressed herein. The Lender is familiar with Rule
144 under the Securities Act, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. The Lender further
understands that the certificate(s) representing the CDnow Common Stock shall
bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM.
SECTION 9. REGISTRATION RIGHTS.
The Lenders and the Borrower agree that, with respect to any and all
shares of Common Stock of the Borrower issued upon conversion of any Note or any
portion thereof, or any Interest payable with respect thereto, the Lenders shall
have the registration rights provided for in the Stock Option Agreement
regardless of whether or not such agreement shall be in effect, and any and all
shares of Common Stock of the Borrower issued upon conversion of the Loans or
any portion thereof, or any Interest payable with respect thereto, shall
constitute shares of securities that have been acquired by or are issuable to
the Lenders upon exercise of the "Option" as defined therein.
SECTION 10. MISCELLANEOUS.
Section 10.1 Payment of Expenses, Indemnity, etc. The Borrower shall:
(a) pay all reasonable out-of-pocket costs and expenses of each
Lender in connection with the preservation of rights under, and enforcement of,
the Loan Documents and the documents and instruments referred to therein or in
connection with any restructuring or rescheduling of the Obligations (including,
without limitation, the reasonable fees and disbursements of counsel for each
Lender);
<PAGE>
32
(b) pay, and hold the Lenders harmless from and against, any and
all present and future stamp, excise and other similar taxes with respect to the
foregoing matters and hold the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to the Lender) to pay such taxes; and
(c) indemnify each Lender, its officers, directors, employees,
representatives and agents (each an "Indemnitee") from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature whatsoever (including, without limitation, the fees and
disbursements of counsel for such Indemnitee in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto) that may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, asserted against or incurred by any Indemnitee
as a result of, or arising out of, or in any way related to or by reason of, any
of the Transactions or the execution, delivery or performance of any Loan
Document except to the extent resulting from the gross negligence or willful
misconduct of the Indemnitee.
Section 10.2 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default each Lender is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to any
Loan Party or any other Person, any such notice being hereby expressly waived,
to set off any other indebtedness or other obligation at any time held or owing
by such Lender to or for the credit or the account of any Loan Party against and
on account of the Obligations of the Loan Parties to such Lender under this
Agreement or under any of the other Loan Documents, and all other claims of any
nature or description arising out of or connected with this Agreement or any
other Loan Document, irrespective of whether or not the Lenders shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured.
Section 10.3 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed effectively given upon personal delivery
to the party to be notified; on the next Business Day after delivery to a
<PAGE>
33
recognized overnight courier service; upon confirmation of receipt of a
facsimile transmission; or five days after deposit with the United States Post
Office, by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice; provided that notices of a change
of address shall be effective only upon receipt thereof):
If to the Borrower, to:
1005 Virginia Drive
Ft. Washington, PA 19034
Facsimile: (215) 619-9521
Attention: General Counsel
with a copy to:
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103-2921
Facsimile: (215) 963-5299
Attention: James W. McKenzie, Jr., Esq.
If to Time Warner Inc., to:
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
Facsimile: (212) 307-0126
Attention: Chief Financial Officer
with a copy to:
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
Facsimile: (212) 275-3901
Attention: General Counsel
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Facsimile: (212) 757-3990
Attention: James H. Schwab, Esq.
and
<PAGE>
34
If to Sony Music Entertainment Inc., to:
Sony Music Entertainment Inc.
550 Madison Avenue
New York, NY 10022
Facsimile: (212) 833-8083
Attention: General Counsel
with a copy to:
Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022-21585
Facsimile: (212) 940-8776
Attention: Lisa Weiss, Esq.
Section 10.4 Successors and Assigns; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower, the Lenders, all future holders of the
Notes and their respective successors and assigns, except that the Borrower may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Lenders.
(b) Assignments. Either Lender may at any time assign to any
other Person (each an "Assignee") other than a competitor of the Borrower or any
of its Subsidiaries all but not in part of its rights and obligations under this
Agreement, the Notes and any other Loan Documents, and the Borrower and the
Lenders agree that to the extent of any assignment, the Assignee shall be deemed
to have the same rights and benefits under the Loan Documents as the Lenders
hereunder; provided that such assignment shall not relieve the Lenders of their
respective obligations hereunder. Any assignment by a Lender to any Person that
is not an Affiliate of such Lender shall require the prior written consent of
the non-assigning Lender.
Section 10.5 Amendments and Waivers. Neither this Agreement, any other
Loan Document to which the Borrower is a party, nor any terms hereof or thereof
may be amended, supplemented, modified or waived except in accordance with the
provisions of this Section. The Lenders acting jointly and the Borrower may,
from time to time, enter into written amendments, supplements, modifications or
waivers for the purpose of adding, deleting, changing or waiving any provisions
to this Agreement or any Note. Any such amendment, supplement, modification or
waiver shall
<PAGE>
35
apply to and shall be binding upon the Borrower, the Lenders and all future
holders of such Notes or any portion thereof or participation therein. In the
case of any waiver, the Borrower and the Lenders shall be restored to their
former position and rights hereunder and under the outstanding Notes, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing, but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
Section 10.6 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Lenders or any subsequent holder of a Note in exercising any
right, power or privilege hereunder or under any other Loan Document and no
course of dealing between any Loan Party and the Lenders or the subsequent
holder of any Note shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Loan Document preclude any other or further exercise thereof of the exercise of
any other right, power or privilege hereunder or thereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Lenders or the subsequent holder of any Note would
otherwise have. No notice to or demand on any Loan Party in any case shall
entitle any Loan Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Lenders or the
subsequent holder of any Note to any other or further action in any
circumstances without notice or demand.
Section 10.7 Governing Law, Submission to Jurisdiction. (a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement
or any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York in New
York County or of the United States of America for the Southern District of New
York, and, by execution and delivery of this Agreement, the Borrower hereby
accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any thereof. The Borrower irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
<PAGE>
36
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, the Borrower at its address set forth in Section 10.3. The
Borrower hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Agreement or any other Loan Document
brought in the courts referred to above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of the Lenders or any holder of a Note to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower in any other jurisdiction.
Section 10.8 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
Section 10.9 Headings Descriptive. The headings of the several
Sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
Section 10.10 Marshalling; Recapture. The Lenders shall be under no
obligation to marshall any assets in favor of any Loan Party or any other party
or against or in payment of any or all of the Obligations. To the extent the
Lenders receive any payment by or on behalf of any Loan Party, which payment or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to such Loan Party or its
estate, trustee, receiver, custodian or any other party under any bankruptcy
law, state or federal law, common law or equitable cause, then to the extent of
such payment or repayment, the obligation or part thereof which has been paid,
reduced or satisfied by the amount so repaid shall be reinstated by the amount
so repaid and shall be included within the liabilities of such Loan Party to the
Lenders as of the date such initial payment, reduction or satisfaction occurred.
Section 10.11 Severability. In case any provision in or obligation
under this Agreement or any Note shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of
<PAGE>
37
the remaining provisions or obligations, or of such provision or obligation in
any other Jurisdiction, shall not in any way be affected or impaired thereby.
Section 10.12 Survival. All indemnities set forth herein shall survive
the execution and delivery of this Agreement and the Notes and the making and
repayment of the Loans hereunder.
Section 10.13 Limitation of Liability. No claim may be made by any
Loan Party or any other Person against any Lender or any of its Affiliates,
directors, officers, employees, attorneys or agents for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement or any act, omission or event occurring in
connection herewith; and each Loan Party hereby waives, releases and agrees not
to sue upon any claim for any such damages, whether or not accrued and whether
or not known or suspected to exist in its favor. For the avoidance of doubt, the
parties expressly acknowledge and agree that each Lender's obligations under
this Agreement, including without limitation Section 2, are separate and
individual in nature and are not joint and several. In no event shall a Lender
be held responsible for a breach by the other Lender of this Agreement.
Section 10.14 [Reserved.]
Section 10.15 Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER AND EACH LENDER HEREBY IRREVOCABLY WAIVES
ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
Section 10.16 Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the Interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lenders holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the Interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this
<PAGE>
38
Section 10.16 shall be cumulated and the Interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount shall have been received
by Lenders.
Section 10.17 Senior Indebtedness. The Indebtedness created pursuant
to the Loan Documents shall be senior in right of payment, as to principal,
Interest and all other Obligations, to all other Indebtedness of the Borrower,
whether now existing, or hereafter created, except for Indebtedness under the
Existing Debt Agreements, Purchase Money Indebtedness and Sale and Leaseback
Transactions entered into in accordance with Section 6.6(iv).
Section 10.18 Adjustments; Set-Off. If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans, or
Interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7, or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or Interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
Section 10.19 Merger Agreement. Nothing in this Agreement shall reduce
or relieve any of the Loan Parties from any of their obligations under the
Merger Agreement.
<PAGE>
39
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
CDnow, Inc.
By: /s/ Jason Olim
---------------------------------
Name: Jason Olim
Title: President and Chief
Executive Officer
SONY MUSIC ENTERTAINMENT INC.
By: /s/ Kevin Kelleher
---------------------------------
Name: Kevin Kelleher
Title: Executive Vice
President and Chief
Financial Officer
TIME WARNER INC.
By: /s/ Richard J. Bressler
---------------------------------
Name: Richard J. Bressler
Title: Executive Vice
President and Chief
Financial Officer
<PAGE>
CDnow, Inc.
SCHEDULES TO
CONVERTIBLE LOAN AGREEMENT, DATED AS OF JULY 12, 1999
BETWEEN CDnow, Inc., SONY MUSIC ENTERTAINMENT INC.
and TIME WARNER INC.
<PAGE>
Exhibit A
(to Convertible Loan Agreement)
[Form of Promissory Note]
CDnow, Inc.
PROMISSORY NOTE
$15,000,000 New York, New York
[Date]
FOR VALUE RECEIVED, the undersigned, CDnow, Inc., a Pennsylvania
corporation (the "Borrower"), hereby unconditionally promises to pay to
__________ or registered assigns (the "Lender"), on the Final Maturity Date (as
defined in Credit Agreement referred to below), in lawful money of the United
States of America and in immediately available funds, the principal amount of
Fifteen Million Dollars ($15,000,000) or, if less, the aggregate amount
outstanding of the Loans made by the Lender (as defined in the Credit
Agreement). The Borrower hereby unconditionally further agrees to pay interest
in like money on the unpaid principal amount hereof from time to time from the
date hereof at the rates and on the dates specified in Section 2.5 of the
Convertible Loan Agreement dated as of July 12, 1999 between the Borrower and
the Lender and ___________ (as amended, modified or supplemented from time to
time, the "Credit Agreement").
This Note is one of the Notes referred to in Section 2.4 of the Credit Agreement
and is entitled to the benefits thereof. All of the terms, conditions, and
covenants of the Credit Agreement are expressly made a part of this Note by
reference in the same manner and with the same effect as if set forth herein.
Any transferee of this Note, by its acceptance hereof, agrees to be bound by all
the terms, conditions and covenants of the Credit Agreement applicable to the
holder of a Note.
The principal amount of this Note, together with all accrued and unpaid interest
thereon, is convertible into Common Stock of the Borrower at any time and from
time to time, as, and subject to the conditions and limitations, specified in
the Credit Agreement. The Conversion Price applicable to this Note and any
accrued and unpaid Interest hereon shall
<PAGE>
2
be specified in the Credit Agreement, which Conversion Price shall be subject to
adjustment as set forth in the Credit Agreement.
As provided in the Credit Agreement, the Loans evidenced by this Note are
subject to optional and mandatory repayments, in whole and in part, all as
specified in the Credit Agreement.
If an Event of Default, as defined in the Credit Agreement, occurs and is
continuing, all amounts remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW).
CDnow, Inc.
By: ________________________
Name:
Title:
Schedule of Principal Advances, Conversions and Repayments
Principal
Amount
Amount of Amount of Amount of Converted Interest
Principal Interest Principal into Common Converted into
Date Advance Payment Repayment Stock Common Stock
<PAGE>
EXHIBIT B
(to Convertible Loan Agreement)
_______________________________________________________________________________
GUARANTEE AND COLLATERAL AGREEMENT
made by
CDNOW, INC.
and certain of its Subsidiaries
in favor of
TIME WARNER INC.,
as Security Agent
Dated as of _______, 1999
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TABLE OF CONTENTS
Page
SECTION 1.
DEFINED TERMS....................................................... 2
1.1 Definitions................................................ 2
1.2 Other Definitional Provisions.............................. 6
SECTION 2.
GUARANTEE........................................................... 6
2.1 Guarantee.................................................. 6
2.2 Right of Contribution...................................... 7
2.3 No Subrogation............................................. 8
2.4 Amendments, etc. with Respect to the Borrower
Obligations................................................ 8
2.5 Guarantee Absolute and Unconditional....................... 9
2.6 Reinstatement..............................................10
2.7 Payments...................................................10
SECTION 3.
GRANT OF SECURITY INTEREST..........................................10
SECTION 4.
REPRESENTATIONS AND WARRANTIES......................................11
4.1 Representations in Credit Agreement........................11
4.2 Perfected First Priority Liens.............................12
4.3 Chief Executive Office.....................................12
4.4 Inventory and Equipment....................................12
4.5 Pledged Securities.........................................12
4.6 Receivables................................................13
4.7 Contracts..................................................13
4.8 Intellectual Property......................................13
SECTION 5.
COVENANTS...........................................................13
5.1 Covenants in Credit Agreement..............................13
5.2 Delivery of Instruments and Chattel Paper..................13
5.3 Payment of Obligations.....................................14
5.4 Maintenance of Perfected Security Interest;
Further Documentation......................................14
5.5 Changes in Locations, Name, etc............................14
5.6 Notices....................................................15
i
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5.7 Pledged Securities.........................................15
5.8 Intellectual Property......................................17
SECTION 6.
REMEDIAL PROVISIONS.................................................17
6.1 Certain Matters Relating to Receivables....................17
6.2 Communications with Obligors; Grantors Remain
Liable.....................................................18
6.3 Pledged Stock..............................................19
6.4 Proceeds to be Turned Over to Security Agent...............20
6.5 Application of Proceeds....................................20
6.6 Code and Other Remedies....................................21
6.7 Registration Rights........................................22
6.8 Waiver; Deficiency.........................................23
SECTION 7.
THE SECURITY AGENT..................................................23
7.1 Appointment....................................................23
7.2 Delegation of Duties...........................................23
7.3 Exculpatory Provisions.........................................23
7.4 Reliance by Security Agent.....................................24
7.5 Notice of Default..............................................24
7.6 Non-Reliance on Security Agent and Other
Lenders.....................................................25
7.7 Indemnification................................................26
7.8 Security Agent in Its Individual Capacity......................26
7.9 Security Agent's Appointment as Attorney-in-Fact,
etc............................................................26
7.10 Duty of Security Agent.........................................29
7.11 Execution of Financing Statements..............................29
7.12 Authority of Security Agent....................................29
SECTION 8.
MISCELLANEOUS.......................................................30
8.1 Amendments in Writing......................................30
8.2 Notices....................................................30
8.3 No Waiver by Course of Conduct; Cumulative
Remedies...................................................30
8.4 Enforcement Expenses; Indemnification......................31
8.5 Successors and Assigns.....................................31
8.6 Set-Off....................................................31
8.7 Counterparts...............................................32
8.8 Severability...............................................32
8.9 Section Headings...........................................32
8.10 Integration................................................33
8.11 GOVERNING LAW..............................................33
8.12 Submission To Jurisdiction; Waivers........................33
8.13 Acknowledgments............................................34
ii
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8.14 WAIVER OF JURY TRIAL.......................................34
8.15 Additional Grantors........................................34
8.16 Releases...................................................34
iii
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Schedules
Schedule 1 Addresses for Notices
Schedule 2 Pledged Securities
Schedule 3 Actions for Perfection
Schedule 4 Chief Executive Offices
Schedule 5 Locations of Inventory and Equipment
Schedule 6 Intellectual Property
Schedule 7 Contracts
iv
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Exhibit B
(to Convertible Loan Agreement)
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of _______, 1999,
made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "Grantors"), in
favor of TIME WARNER INC., as Security Agent (in such capacity, the
"Security Agent") for TIME WARNER INC. and SONY MUSIC ENTERTAINMENT
INC. (the "Lenders") under the Convertible Loan Agreement, dated as of
July 12, 1999 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among CDnow, Inc. (the
"Borrower") and the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Security Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to enter into the Credit Agreement and to induce the Lenders to make
their respective extensions of credit to the Borrower thereunder, each Grantor
hereby agrees with the Security Agent, for the ratable benefit of the Lenders,
as follows:
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2
SECTION 1.
DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date hereof are used
herein as so defined: Accounts, Chattel Paper, Documents, Equipment, Farm
Products, Instruments, Inventory and Investment Property.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the unpaid
principal of and interest on the Loans and all other obligations and liabilities
of the Borrower (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the Loans
and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) to the Security Agent or any Lender, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Loan Documents, or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Security Agent or to the Lenders that
are required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Security Agent as provided in Section 6.1 or 6.4.
"Contracts": the contracts and agreements listed in Schedule 7, as the
same may be amended, supplemented or
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3
otherwise modified from time to time, including, without limitation, (i) all
rights of any Grantor to receive moneys due and to become due to it thereunder
or in connection therewith, (ii) all rights of any Grantor to damages arising
thereunder and (iii) all rights of any Grantor to perform and to exercise all
remedies thereunder.
"Copyright Licenses": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in Schedule
6), granting any right under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell materials derived
from any Copyright.
"Copyrights": (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6), all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"General Intangibles": all "general intangibles" as such term is
defined in Article 9 of the Uniform Commercial Code in effect in the State of
New York on the date hereof and, in any event, including, without limitation,
with respect to any Grantor, all contracts, agreements, instruments and
indentures in any form, and portions thereof, to which such Grantor is a party
or under which such Grantor has any right, title or interest or to which such
Grantor or any property of such Grantor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of such Grantor to receive moneys due and to become
due to it thereunder or in connection therewith, (ii) all rights of such Grantor
to damages arising thereunder and (iii) all rights of such Grantor to perform
and to exercise all remedies thereunder, in each case to the extent the grant by
such Grantor of a security interest pursuant to this Agreement in its right,
title and interest in such contract, agreement, instrument or indenture is not
prohibited by such contract, agreement, instrument or indenture without the
consent of any other party thereto, would not give any other party to such
contract, agreement, instrument or indenture the right to terminate its
obligations thereunder, or is permitted with consent if all necessary consents
to such grant of a security interest have been obtained from the other parties
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4
thereto (it being understood that the foregoing shall not be deemed to obligate
such Grantor to obtain such consents); provided, that the foregoing limitation
shall not affect, limit, restrict or impair the grant by such Grantor of a
security interest pursuant to this Agreement in any Receivable or any money or
other amounts due or to become due under any such contract, agreement,
instrument or indenture.
"Guarantor Obligations": with respect to any Guarantor, the collective
reference to (i) the Borrower Obligations and (ii) all obligations and
liabilities of such Guarantor which may arise under or in connection with this
Agreement or any other Loan Document to which such Guarantor is a party, in each
case whether on account of guarantee obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Security Agent or to the Lenders that are required to be paid
by such Guarantor pursuant to the terms of this Agreement or any other Loan
Document).
"Guarantors": the collective reference to each Grantor other than the
Borrower.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, the Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to
sue at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made by any
Grantor to any Grantor or any of their Subsidiaries.
"Issuers": the collective reference to each issuer of a Pledged
Security.
"New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor Obligations.
"Patent License": all agreements, whether written or oral, providing
for the grant by or to any Grantor of any
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5
right to manufacture, use or sell any invention covered in whole or in part by a
Patent, including, without limitation, any of the foregoing referred to in
Schedule 6.
"Patents": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without limitation,
any of the foregoing referred to in Schedule 6, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to in Schedule 6, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other promissory
notes issued to or held by any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in the ordinary course
of business).
"Pledged Securities": the collective reference to the Pledged Notes
and the Pledged Stock.
"Pledged Stock": the Equity Securities listed on Schedule 2, together
with any other shares, stock certificates, options or rights of any nature
whatsoever in respect of the Equity Securities of any Person that may be issued
or granted to, or held by, any Grantor while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Article 9 of the
Uniform Commercial Code in effect in the State of New York on the date hereof
and, in any event, shall include, without limitation, all dividends or other
income from the Pledged Securities, collections thereon or distributions or
payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument or
Chattel Paper and whether or not it has been earned by performance (including,
without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Trademark License": any agreement, whether written or oral, providing
for the grant by or to any
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6
Grantor of any right to use any Trademark, including, without limitation, any of
the foregoing referred to in Schedule 6.
"Trademarks": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in Schedule 6, and (ii) the right to obtain all renewals thereof.
1.2 Other Definitional Provisions. (a) The words "hereof," "herein,"
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral
or any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2.
GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Security Agent,
for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum
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7
liability of each Guarantor hereunder and under the other Loan Documents shall
in no event exceed the amount which can be guaranteed by such Guarantor under
applicable federal and state laws relating to the insolvency of debtors (after
giving effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Security Agent or any Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full and the Loan Commitment shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrower may be free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Security Agent or
any Lender from the Borrower, any of the Guarantors, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Borrower Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Borrower Obligations or any payment received or
collected from such Guarantor in respect of the Borrower Obligations), remain
liable for the Borrower Obligations up to the maximum liability of such
Guarantor hereunder until the Borrower Obligations are paid in full and the Loan
Commitment is terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Security
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8
Agent and the Lenders, and each Guarantor shall remain liable to the Security
Agent and the Lenders for the full amount guaranteed by such Guarantor
hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Security Agent or any Lender, no Guarantor shall be entitled to be subrogated to
any of the rights of the Security Agent or any Lender against the Borrower or
any other Guarantor or any collateral security or guarantee or right of offset
held by the Security Agent or any Lender for the payment of the Borrower
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Security Agent and the Lenders by the Borrower on account of the Borrower
Obligations are paid in full and the Loan Commitment is terminated. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all of the Borrower Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the Security Agent and
the Lenders, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Security Agent in the
exact form received by such Guarantor (duly indorsed by such Guarantor to the
Security Agent, if required), to be applied against the Borrower Obligations,
whether matured or unmatured, in such order as the Security Agent may determine.
2.4 Amendments, etc. with Respect to the Borrower Obligations. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Security Agent or any Lender may be rescinded by the
Security Agent or such Lender and any of the Borrower Obligations continued, and
the Borrower Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Security Agent or any Lender, and the Credit
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Security Agent (or the Lenders, as the
case may be) may deem advisable from time to time, and any collateral security,
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9
guarantee or right of offset at any time held by the Security Agent or any
Lender for the payment of the Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Security Agent nor any Lender shall
have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Borrower Obligations or for the guarantee
contained in this Section 2 or any property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Security Agent or
any Lender upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Borrower Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Security Agent and the Lenders, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or any of the Guarantors with
respect to the Borrower Obligations. Each Guarantor understands and agrees that
the guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Credit Agreement or any other Loan Document,
any of the Borrower Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Security Agent or any Lender, (b) any defense, set- off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower or any other Person against
the Security Agent or any Lender, or (c) any other circumstance whatsoever (with
or without notice to or knowledge of the Borrower or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Borrower Obligations, or of such Guarantor
under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, the Security Agent or any Lender may,
but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrower, any other
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10
Guarantor or any other Person or against any collateral security or guarantee
for the Borrower Obligations or any right of offset with respect thereto, and
any failure by the Security Agent or any Lender to make any such demand, to
pursue such other rights or remedies or to collect any payments from the
Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Security Agent or any Lender against any Guarantor. For
the purposes hereof "demand" shall include the commencement and continuance of
any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Security Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Security Agent without set-off or counterclaim in the lawful
money of the United States of America at the office of the Security Agent set
forth in Schedule 1.
SECTION 3.
GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Security Agent, and
hereby grants to the Security Agent, for the ratable benefit of the Lenders, a
security interest in, all of the following property now owned or at any time
hereafter acquired by such Grantor or in which such Grantor now has or at any
time in the future may acquire any right, title or interest (collectively, the
"Collateral"), as collateral security for the prompt and complete payment and
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11
performance when due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Contracts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Pledged Securities and other
Investment Property;
(k) all books and records pertaining to the
Collateral; and
(l) to the extent not otherwise included,
all Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into the Credit Agreement and to induce
the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby represents and warrants to the Security Agent
and each Lender that:
4.1 Representations in Credit Agreement In the case of each Guarantor,
the representations and warranties set forth in Section 4 of the Credit
Agreement as they relate to such Guarantor or to the Loan Documents to which
such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and the Security Agent and each Lender shall be
entitled to rely
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12
on each of them as if they were fully set forth herein, provided that each
reference in each such representation and warranty to the Borrower's knowledge
shall, for the purposes of this Section 4.1, be deemed to be a reference to such
Guarantor's knowledge.
4.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Security Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Security Agent, for the
ratable benefit of the Lenders, as collateral security for such Grantor's
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase any Collateral
from such Grantor and (b) are prior to all other Liens on the Collateral in
existence on the date hereof except for unrecorded Liens permitted by the Credit
Agreement which have priority over the Liens on the Collateral by operation of
law.
4.3 Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on Schedule 4.
4.4 Inventory and Equipment. On the date hereof, the Inventory and the
Equipment (other than mobile goods) are kept at the locations listed on Schedule
5.
4.5 Pledged Securities. (a) The shares of Pledged Stock pledged by
such Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Equity Securities of each Issuer owned by such Grantor.
(b) Except as set forth on Schedule 2, all the shares of the
Pledged Stock have been duly and validly issued and are fully paid and
nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
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13
(d) Such Grantor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Securities pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement.
4.6 Receivables. No material amount payable to such Grantor under or
in connection with any Receivable is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Security Agent.
4.7 Contracts. (a) No consent of any party (other than such Grantor)
to any Contract is required, or purports to be required, in connection with the
execution, delivery and performance of this Agreement.
(b) No material amount payable to such Grantor under or in
connection with any Contract is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Security Agent.
4.8 Intellectual Property. Schedule 6 lists all Intellectual Property
owned by such Grantor in its own name on the date hereof.
SECTION 5.
COVENANTS
Each Grantor covenants and agrees with the Security Agent and the
Lenders that, from and after the date of this Agreement until the Obligations
shall have been paid in full and the Loan Commitment shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each Guarantor, such
Guarantor shall take, or shall refrain from taking, as the case may be, each
action that is necessary to be taken or not taken, as the case may be, so that
no Default or Event of Default is caused by the failure to take such action or
to refrain from taking such action by such Guarantor or any of its Subsidiaries.
5.2 Delivery of Instruments and Chattel Paper. If any material amount
payable under or in connection with any of the Collateral shall be or become
evidenced by any Instrument or Chattel Paper, such Instrument or Chattel Paper
shall be immediately delivered to the Security Agent, duly indorsed in a manner
satisfactory to the Security Agent, to be held as Collateral pursuant to this
Agreement.
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14
5.3 Payment of Obligations. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.4 Maintenance of Perfected Security Interest; Further Documentation.
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
Section 4.2 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Security Agent and the
Lenders from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Security Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written request
of the Security Agent, and at the sole expense of such Grantor, such Grantor
will promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Security Agent
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby.
5.5 Changes in Locations, Name, etc. Such Grantor will not, except
upon 30 days' prior written notice to the Security Agent and delivery to the
Security Agent of (a) all additional executed financing statements and other
documents reasonably requested by the Security Agent to maintain the validity,
perfection and priority of the security interests provided for herein and (b) if
applicable, a written supplement to Schedule 5 showing any
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15
additional location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 5;
(ii) change the location of its chief executive office or sole
place of business from that referred to in Section 4.3; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Security Agent in
connection with this Agreement would become misleading.
5.6 Notices. Such Grantor will advise the Security Agent and
the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement) on any of the Collateral; and
(b) of the occurrence of any other event which could reasonably
be expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.7 Pledged Securities. (a) If such Grantor shall become entitled to
receive or shall receive any certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), option or rights in respect of the
Equity Securities of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Security Agent and the Lenders, hold the same in trust for the Security
Agent and the Lenders and deliver the same forthwith to the Security Agent in
the exact form received, duly indorsed by such Grantor to the Security Agent, if
required, together with an undated stock power covering such certificate duly
executed in blank by such Grantor and with, if the Security Agent so requests,
signature guaranteed, to be held by the Security Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any sums paid
upon or in respect of the Pledged Securities upon the liquidation or dissolution
of any Issuer shall be paid
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16
over to the Security Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be
made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Security Agent, be
delivered to the Security Agent to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property so
paid or distributed in respect of the Pledged Securities shall be received by
such Grantor, such Grantor shall, until such money or property is paid or
delivered to the Security Agent, hold such money or property in trust for the
Lenders, segregated from other funds of such Grantor, as additional collateral
security for the Obligations.
(b) Without the prior written consent of the Security Agent, such
Grantor will not (i) sell, assign, transfer, exchange, or otherwise dispose of,
or grant any option with respect to, the Pledged Securities or Proceeds thereof
(except pursuant to a transaction expressly permitted by the Credit Agreement),
(ii) create, incur or permit to exist any Lien or option in favor of, or any
claim of any Person with respect to, any of the Pledged Securities or Proceeds
thereof, or any interest therein, except for the security interests created by
this Agreement or (iii) enter into any agreement or undertaking restricting the
right or ability of such Grantor or the Security Agent to sell, assign or
transfer any of the Pledged Securities or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Security Agent promptly in
writing of the occurrence of any of the events described in Section 5.7(a) with
respect to the Pledged Securities issued by it and (iii) the terms of Sections
6.3(c) shall apply to it, mutatis mutandis, with respect to all actions that may
be required of it pursuant to Section 6.3(c) with respect to the Pledged
Securities issued by it.
5.8 Intellectual Property. (a) Whenever such Grantor, either by itself
or through any agent, employee, licensee or designee, shall file an application
for the registration of any Intellectual Property with the United
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17
States Patent and Trademark Office, the United States Copyright Office or any
similar office or agency in any other country or any political subdivision
thereof, such Grantor shall report such filing to the Security Agent within five
Business Days after the last day of the fiscal quarter in which such filing
occurs. Upon request of the Security Agent, such Grantor shall execute and
deliver, and have recorded, any and all agreements, instruments, documents, and
papers as the Security Agent may request to evidence the Security Agent's and
the Lenders' security interest in any Copyright, Patent or Trademark and the
goodwill and general intangibles of such Grantor relating thereto or represented
thereby.
(b) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
SECTION 6.
REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The Security Agent
hereby authorizes each Grantor to collect such Grantor's Receivables, subject to
the Security Agent's reasonable direction and control, and the Security Agent
may curtail or terminate said authority at any time after the occurrence and
during the continuance of an Event of Default. If required by the Security Agent
at any time after the occurrence and during the continuance of an Event of
Default, any payments of Receivables, when collected by any Grantor, (i) shall
be forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the
Security Agent if required, in a Collateral Account maintained under the sole
dominion and control of the Security Agent, subject to withdrawal by the
Security Agent for the account of the Lenders only as provided in Section 6.5,
and (ii) until so turned over, shall be held by such Grantor in trust for the
Security Agent and the Lenders, segregated from other funds of such Grantor.
Each such deposit of Proceeds of Receivables shall be accompanied by a
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18
report identifying in reasonable detail the nature and source of the payments
included in the deposit.
(b) At the Security Agent's request, each Grantor shall deliver
to the Security Agent all original and other documents evidencing, and relating
to, the agreements and transactions which gave rise to the Receivables,
including, without limitation, all original orders, invoices and shipping
receipts.
6.2 Communications with Obligors; Grantors Remain Liable. (a) The
Security Agent in its own name or in the name of others may at any time after
the occurrence and during the continuance of an Event of Default communicate
with obligors under the Receivables and parties to the Contracts to verify with
them to the Security Agent's satisfaction the existence, amount and terms of any
Receivables or Contracts.
(b) Upon the request of the Security Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables and parties to the Contracts that the
Receivables and the Contracts have been assigned to the Security Agent for the
ratable benefit of the Lenders and that payments in respect thereof shall be
made directly to the Security Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables and Contracts to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Security Agent nor any Lender shall have any obligation or
liability under any Receivable (or any agreement giving rise thereto) or
Contract by reason of or arising out of this Agreement or the receipt by the
Security Agent or any Lender of any payment relating thereto, nor shall the
Security Agent or any Lender be obligated in any manner to perform any of the
obligations of any Grantor under or pursuant to any Receivable (or any agreement
giving rise thereto) or Contract, to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, 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 it or to which it may be entitled
at any time or times.
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6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred
and be continuing and the Security Agent shall have given notice to the relevant
Grantor of the Security Agent's intent to exercise its corresponding rights
pursuant to Section 6.3(b), each Grantor shall be permitted to receive all cash
dividends paid in respect of the Pledged Stock and all payments made in respect
of the Pledged Notes, in each case paid in the normal course of business of the
relevant Issuer and consistent with past practice, to the extent permitted in
the Credit Agreement, and to exercise all voting and corporate rights with
respect to the Pledged Securities; provided, however, that no vote shall be cast
or corporate right exercised or other action taken which, in the Security
Agent's reasonable judgment, would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Security Agent shall give notice of its intent to exercise such rights to the
relevant Grantor or Grantors, (i) the Security Agent shall have the right to
receive any and all cash dividends, payments or other Proceeds paid in respect
of the Pledged Securities and make application thereof to the Obligations in
such order as the Security Agent may determine, and (ii) any or all of the
Pledged Securities shall be registered in the name of the Security Agent or its
nominee, and the Security Agent or its nominee may thereafter exercise (x) all
voting, corporate and other rights pertaining to such Pledged Securities at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise and (y)
any and all rights of conversion, exchange and subscription and any other
rights, privileges or options pertaining to such Pledged Securities as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or upon the exercise by any
Grantor or the Security Agent of any right, privilege or option pertaining to
such Pledged Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Security Agent may determine), all without liability except to
account for property actually received by it, but the Security Agent shall have
no duty to any Grantor to exercise any such right, privilege or option and shall
not
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20
be responsible for any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of
any Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Security Agent in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall
be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Security Agent.
6.4 Proceeds to be Turned Over to Security Agent. In addition to the
rights of the Security Agent and the Lenders specified in Section 6.1 with
respect to payments of Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by any Grantor consisting of cash, checks and
other near-cash items shall be held by such Grantor in trust for the Security
Agent and the Lenders, segregated from other funds of such Grantor, and shall,
forthwith upon receipt by such Grantor, be turned over to the Security Agent in
the exact form received by such Grantor (duly indorsed by such Grantor to the
Security Agent, if required). All Proceeds received by the Security Agent
hereunder shall be held by the Security Agent in a Collateral Account maintained
under its sole dominion and control. All Proceeds while held by the Security
Agent in a Collateral Account (or by such Grantor in trust for the Security
Agent and the Lenders) shall continue to be held as collateral security for all
the Obligations and shall not constitute payment thereof until applied as
provided in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be agreed upon
by the Borrower and the Security Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Security Agent's election, the
Security Agent may apply all or any part of Proceeds held in any Collateral
Account in payment of the Obligations as follows:
First, to the extent not theretofore paid by or on behalf of any Loan
Party, to pay all fees, costs, expenses of the Security Agent and the Lenders
incurred in connection with the performance of their duties hereunder or under
the Loan Documents, as the case may be, including attorneys' fees and expenses
and any other amounts payable to the
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21
Security Agent and the Lenders hereunder or under any of the Loan Documents in
respect of any indemnities;
Second, to the Lenders pro rata in accordance with the aggregate
amount of Interest owed to such Lenders;
Third, to the Lenders pro rata in accordance with the aggregate amount
of all other Obligations held by such Lenders;
Fourth, the balance, if any, to the Grantor or such other person or
persons as are entitled thereto.
Any balance of such Proceeds remaining after the Obligations shall have been
paid in full and the Loan Commitment shall have terminated shall be paid over to
the Borrower or to whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall occur and be
continuing, the Security Agent, on behalf of the Lenders, may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Security Agent, without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice required by law
referred to below) to or upon any Grantor or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Security Agent or any Lender or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. The Security Agent or any Lender shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in any Grantor, which right or equity is
hereby waived and released. Each Grantor further agrees, at the Security Agent's
request, to assemble the Collateral and make it available to the Security Agent
at
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22
places which the Security Agent shall reasonably select, whether at such
Grantor's premises or elsewhere. The Security Agent shall apply the net proceeds
of any action taken by it pursuant to this Section 6.6, after deducting all
reasonable costs and expenses of every kind incurred in connection therewith or
incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Security Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in the
order set forth in Section 6.5, and only after such application and after the
payment by the Security Agent of any other amount required by any provision of
law, including, without limitation, Section 9-504(1)(c) of the New York UCC,
need the Security Agent account for the surplus, if any, to any Grantor. To the
extent permitted by applicable law, each Grantor waives all claims, damages and
demands it may acquire against the Security Agent or any Lender arising out of
the exercise by them of any rights hereunder. If any notice of a proposed sale
or other disposition of Collateral shall be required by law, such notice shall
be deemed reasonable and proper if given at least 10 days before such sale or
other disposition.
6.7 Registration Rights. Each Grantor recognizes that the Security
Agent may be unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and applicable
state securities laws or otherwise, and may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers which will be
obliged to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Security Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
6.8 Waiver; Deficiency. To the extent permitted by applicable law,
each Grantor waives and agrees not to assert any rights or privileges which it
may acquire under Section 9-112 of the New York UCC. Each Grantor shall remain
liable for any deficiency if the proceeds of any sale
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23
or other disposition of the Collateral are insufficient to pay its Obligations
and the fees and disbursements of any attorneys employed by the Security Agent
or any Lender to collect such deficiency.
SECTION 7.
THE SECURITY AGENT
7.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Security Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Security Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Security Agent
by the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Security Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Security
Agent. The Security Agent shall not take any action to foreclose upon, sell or
otherwise realize upon any Collateral unless directed to do so by the Lenders
acting jointly.
7.2 Delegation of Duties. The Security Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Security Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys in-fact selected by
it with reasonable care.
7.3 Exculpatory Provisions. Neither the Security Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its breach of this Agreement or its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Grantor or any officer thereof
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24
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Security Agent under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Grantor to perform its obligations hereunder or
thereunder. The Security Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Grantor.
7.4 Reliance by Security Agent. The Security Agent shall be entitled
to rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to any Grantor), independent accountants and other
experts selected by the Security Agent. The Security Agent may deem and treat
the payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed with
the Security Agent. The Security Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Security Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Lenders, acting jointly, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and all future holders of the
Loans.
7.5 Notice of Default. The Security Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Security Agent has received notice from a Lender or the
Borrower referring to the Credit Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Security Agent
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25
receives such a notice, the Security Agent shall give notice thereof to the
Lenders. The Security Agent shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Lenders, acting
jointly.
7.6 Non-Reliance on Security Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Security Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Security Agent
hereinafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the Security Agent to any
Lender. Each Lender represents to the Security Agent that it has, independently
and without reliance upon the Security Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Grantors and made its
own decision to make its Loans under the Credit Agreement and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Security Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Security Agent hereunder, the Security Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Grantor which may
come into the possession of the Security Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. The Lenders agree to indemnify the Security Agent
in its capacity as such (to the extent not reimbursed by the Grantor and without
limiting the obligation of the Grantor to do so), ratably, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Security Agent in any way
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26
relating to or arising out of, the Loan Commitment, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Security Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Security Agent's breach of this Agreement, gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
7.8 Security Agent in Its Individual Capacity. The Security Agent and
its Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with the Grantor as though the Security Agent were not the
Security Agent hereunder and under the other Loan Documents. With respect to the
Loans made by it, the Security Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not the Security Agent, and the terms "Lender" and
"Lenders" shall include the Security Agent in its individual capacity.
7.9 Security Agent's Appointment as Attorney-in-Fact, etc. (a) Each
Grantor hereby irrevocably constitutes and appoints the Security Agent and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Grantor and in the name of such Grantor or in its 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 which
may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the
Security Agent the power and right, on behalf of such Grantor, without notice to
or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment
of moneys due under any Receivable or Contract or with respect to
any other Collateral and file any claim or take any other action
or proceeding in any court of law or equity or otherwise deemed
appropriate by the Security Agent for the purpose of collecting
any and all such moneys due
<PAGE>
27
under any Receivable or Contract or with respect to any other
Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and
deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Security Agent may request to
evidence the Security Agent's and the Lenders' security interest
in such Intellectual Property and the goodwill and general
intangibles of such Grantor relating thereto or represented
thereby;
(iii) pay or discharge taxes and Liens levied or placed on
or threatened against the Collateral, effect any repairs or any
insurance called for by the terms of this Agreement and pay all
or any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in
Section 6.6 or 6.7, any indorsements, assignments or other
instruments of conveyance or transfer with respect to the
Collateral; and
(v) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become
due thereunder directly to the Security Agent or as the Security
Agent shall direct;
(vi) ask or demand for, collect, and receive payment of and
receipt for, any and all moneys, claims and other amounts due or
to become due at any time in respect of or arising out of any
Collateral;
(vii) sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral;
(viii) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and
to enforce any other right in respect of any Collateral;
(ix) defend any suit, action or proceeding brought against
such Grantor with respect to any Collateral;
<PAGE>
28
(x) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or
releases as the Security Agent may deem appropriate;
(xi) assign any Copyright, Patent or Trademark (along with
the goodwill of the business to which any such Copyright, Patent
or Trademark pertains), throughout the world for such term or
terms, on such conditions, and in such manner, as the Security
Agent shall in its sole discretion determine; and
(xii) generally, sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Security Agent
were the absolute owner thereof for all purposes, and do, at the
Security Agent's option and such Grantor's expense, at any time,
or from time to time, all acts and things which the Security
Agent deems necessary to protect, preserve or realize upon the
Collateral and the Security Agent's and the Lenders' security
interests therein and to effect the intent of this Agreement, all
as fully and effectively as such Grantor might do.
Anything in this Section 7.9(a) to the contrary notwithstanding, the
Security Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 7.9(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Security Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(c) The expenses of the Security Agent incurred in connection
with actions undertaken as provided in this Section 7.9, together with interest
thereon at a rate per annum equal to the Interest Rate, from the date of payment
by the Security Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Security Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
<PAGE>
29
7.10 Duty of Security Agent. The Security Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Security Agent deals with similar
property for its own account. Neither the Security Agent, any Lender nor any of
their respective officers, directors, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of any Grantor or any other Person or to take
any other action whatsoever with regard to the Collateral or any part thereof.
The powers conferred on the Security Agent and the Lenders hereunder are solely
to protect the Security Agent's and the Lenders' interests in the Collateral and
shall not impose any duty upon the Security Agent or any Lender to exercise any
such powers. The Security Agent and the Lenders shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or agents shall
be responsible to any Grantor for any act or failure to act hereunder, except
for their own breach of Agreement, gross negligence or willful misconduct.
7.11 Execution of Financing Statements. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Grantor authorizes the
Security Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Security Agent
reasonably determines appropriate to perfect the security interests of the
Security Agent under this Agreement. A photographic or other reproduction of
this Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any jurisdiction.
7.12 Authority of Security Agent. Each Grantor acknowledges that the
rights and responsibilities of the Security Agent under this Agreement with
respect to any action taken by the Security Agent or the exercise or
non-exercise by the Security Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Security Agent and the Lenders, be
governed by subsections 7.1 to 7.8 hereof and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Security Agent and the Grantors, the Security Agent shall be conclusively
presumed
<PAGE>
30
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
SECTION 8.
MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by each affected Grantor and the Security Agent with
the consent of each Lender.
8.2 Notices. All notices, requests and demands to or upon the Security
Agent or any Grantor hereunder shall be effected in the manner provided for in
subsection 10.3 of the Credit Agreement; provided that any such notice, request
or demand to or upon any Guarantor or the Security Agent shall be addressed to
such Guarantor or the Security Agent at its notice address set forth on Schedule
1; and provided further that a copy of each notice to the Security Agent shall
be provided to each Lender at its address for notices set forth in the Credit
Agreement.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Security Agent nor any Lender shall by any act (except by a written instrument
pursuant to Section 8.1), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Security Agent or any Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Security Agent or any Lender of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
the Security Agent or such Lender would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees
to pay or reimburse each Lender and the Security Agent for all its costs and
expenses incurred
<PAGE>
31
in collecting against such Guarantor under the guarantee contained in Section 2
or otherwise enforcing or preserving any rights under this Agreement and the
other Loan Documents to which such Guarantor is a party, including, without
limitation, the fees and disbursements of counsel (including the allocated fees
and expenses of in-house counsel) to each Lender and of counsel to the Security
Agent.
(b) Each Guarantor agrees to pay, and to save the Security Agent
and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
(c) Each Guarantor agrees to pay, and to save the Security Agent
and the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the
Borrower would be required to do so pursuant to subsection 10.1 of the Credit
Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of
the Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Security Agent and the Lenders and their successors and assigns; provided that
no Grantor may assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Security Agent and
the Lenders. Upon exercise by the Security Agent, in its capacity as a Lender,
of its conversion option under the Credit Agreement with respect to all of its
Loans, the Security Agent shall be deemed to have assigned its rights and
obligations as a Security Agent hereunder to the remaining Lender.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the Security
Agent and each Lender at any time and from time to time while an Event of
Default shall have occurred and be continuing, without notice to such Grantor or
any other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand,
<PAGE>
32
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Security
Agent or such Lender to or for the credit or the account of such Grantor, or any
part thereof in such amounts as the Security Agent or such Lender may elect,
against and on account of the obligations and liabilities of such Grantor to the
Security Agent or such Lender hereunder and claims of every nature and
description of the Security Agent or such Lender against such Grantor, in any
currency, whether arising hereunder, under the Credit Agreement, any other Loan
Document or otherwise, as the Security Agent or such Lender may elect, whether
or not the Security Agent or any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Security Agent and each Lender shall notify such Grantor promptly
of any such set-off and the application made by the Security Agent or such
Lender of the proceeds thereof, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Security Agent and each Lender under this Section 8.6 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Security Agent or such Lender may have.
8.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Security Agent and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
<PAGE>
33
undertakings, representations or warranties by the Security Agent or any Lender
relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York in New York County, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address of
which the Security Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgments. Each Grantor hereby acknowledges that:
<PAGE>
34
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the Security Agent nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Security Agent and Lenders, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Grantors and the Lenders.
8.14 WAIVER OF JURY TRIAL. EACH GRANTOR AND THE SECURITY AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the Borrower is required
to become a party to this Agreement pursuant to the Credit Agreement and shall
become a Grantor for all purposes of this Agreement upon execution and delivery
by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
8.16 Releases. (a) At such time as the Loans and the other Obligations
shall have been paid in full, the Loan Commitment has been terminated, the
Collateral shall be released from the Liens created hereby, and this Agreement
and all obligations (other than those expressly stated to survive such
termination) of the Security Agent and each Grantor hereunder shall terminate,
all without delivery of any instrument or performance of any act by any party,
and all rights to the Collateral shall revert to the Grantors. At the request
and sole expense of any Grantor following any such termination, the Security
Agent shall deliver to such Grantor any Collateral held by the Security Agent
hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Security Agent, at the request and sole expense of such
Grantor, shall execute and deliver to such Grantor all
<PAGE>
35
releases or other documents reasonably necessary or desirable for the release of
the Liens created hereby on such Collateral. At the request and sole expense of
the Borrower, a Guarantor shall be released from its obligations hereunder in
the event that all the Equity Securities of such Guarantor shall be sold,
transferred or otherwise disposed of in a transaction permitted by the Credit
Agreement; provided that the Borrower shall have delivered to the Security
Agent, at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Guarantor and the terms of
the sale or other disposition in reasonable detail, including the price thereof
and any expenses in connection therewith, together with a certification by the
Borrower stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
and Collateral Agreement to be duly executed and delivered as of the date first
above written.
CDnow, Inc. as a Grantor
By: ______________________________
Title:
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of ________________.
_________________________
Notary Public
Cdnow Online, Inc., as a
Grantor
By: _______________________________
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of ________________.
_________________________
Notary Public
N2K Inc., as a Grantor
By: _______________________________
Title:
<PAGE>
2
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of _____________________.
_________________________
Notary Public
CDnow Investments, Inc., as a
Grantor
By: _______________________________
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of __________________.
_________________________
Notary Public
Cdnow Trademarks, Inc.,
as a Grantor
By: ________________________________
Title:
<PAGE>
3
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of ________________.
_________________________
Notary Public
superSonic Boom, Inc.,
as a Grantor
By: ________________________________
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of __________________.
_________________________
Notary Public
TSI Licensing, Inc., as a
Grantor
By: ________________________________
Title:
<PAGE>
4
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of ________________.
_________________________
Notary Public
<PAGE>
5
TIME WARNER INC., as Security
Agent and for purpose of
Sections 7.1 - 7.9, a Lender
By: _______________________________
Name:
Title:
SONY MUSIC ENTERTAINMENT INC.,
as for purposes of
Sections 7.1 - 7.9, a Lender
By: _______________________________
Name:
Title:
<PAGE>
Schedule 1
NOTICE ADDRESSES
1. CDnow, Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Attn: General Counsel
Facsimile No: (215) 619-9521
2. CDnow Online, Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Attn: General Counsel
Facsimile No: (215) 619-9521
3. N2K Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Attn: General Counsel
Facsimile No: (215) 619-9521
4. CDnow Investments, Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Attn: General Counsel
Facsimile No: (215) 619-9521
5. CDnow Trademarks, Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Attn: General Counsel
Facsimile No: (215) 619-9521
6. superSonic Boom, Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Attn: General Counsel
Facsimile No: (215) 619-9521
7. TSI Licensing, Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Attn: General Counsel
Facsimile No: (215) 619-9521
8. Time Warner Inc., as Security Agent
75 Rockefeller Plaza
New York, NY 10019
<PAGE>
2
Attn: Chief Financial Officer
Facsimile No: (212) 307-0126
with a copy to:
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
Attn: General Counsel
Facsimile No: (212) 275-3901
<PAGE>
Schedule 2
DESCRIPTION OF PLEDGED SECURITIES
Pledged Stock:
Class of Stock No. of
Issuer Stock Certificate No. Shares
__________________________ ___________ __________________ __________
CDnow Online, Inc.
N2K Inc.
CDnow Investments, Inc.
CDnow Trademarks, Inc.
superSonic Boom, Inc.
TSI Licensing, Inc.
Liquid Audio, Inc.* Common* -- 38,316*
Liquid Audio, Inc.* Warrant to 48,860*
purchase
shares of
common
stock*
amplified.com, Inc.* Warrant to 400,000*
purchase
shares of
common
stock*
Pledged Notes:
Issuer Payee Principal Amount
_______________________________ ___________________ _____________________
_______________________
<PAGE>
2
* Exceptions to Section 4.5(b) hereof.
<PAGE>
Schedule 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
[List each office where a financing statement is to be
filed]
Patent and Trademark Filings
[List all filings]
Actions with respect to Pledged Stock
Other Actions
[Describe other actions to be taken]
<PAGE>
Schedule 4
LOCATION OF JURISDICTION OF ORGANIZATION
AND CHIEF EXECUTIVE OFFICE
Grantor Location
<PAGE>
Schedule 5
LOCATION OF INVENTORY AND EQUIPMENT
Grantor Locations
<PAGE>
Schedule 6
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
<PAGE>
Schedule 7
CONTRACTS
<PAGE>
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Guarantee and Collateral Agreement dated as of [ ], 1999 (the "Agreement"), made
by the Grantors parties thereto for the benefit of Time Warner Inc., as Security
Agent. The undersigned agrees for the benefit of the Security Agent and the
Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement
and will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Security Agent promptly in
writing of the occurrence of any of the events described in Section 5.8(a) of
the Agreement.
3. The terms of Sections 6.3(a) of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(a) of the Agreement.
[NAME OF ISSUER]
By _________________________________
Title: _____________________________
Address for Notices:
____________________________________
____________________________________
Fax: _______________________________
<PAGE>
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of _____________, 199_, made by
______________________________, a ______________ (the "Additional Grantor"), in
favor of TIME WARNER INC., as Security Agent (in such capacity, the "Security
Agent") for SONY MUSIC ENTERTAINMENT INC. and TIME WARNER INC. (the "Lenders")
parties to the Credit Agreement referred to below. All capitalized terms not
defined herein shall have the meaning ascribed to them in such Credit Agreement.
W I T N E S S E T H :
WHEREAS, CDnow, Inc. (the "Borrower") and the Lenders have
entered into a Convertible Loan Agreement, dated as of July 12, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower
and certain of its Affiliates (other than the Additional Grantor) have entered
into the Guarantee and Collateral Agreement, dated as of ________ __, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
and Collateral Agreement") in favor of the Security Agent for the benefit of the
Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Guarantee and
Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Grantor, as provided in
Section 8.15 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Grantor thereunder with the same
force and effect as if originally named therein as a Grantor and, without
limiting the generality of the foregoing, hereby (i) guarantees the
<PAGE>
2
Borrower Obligations, (ii) assigns and transfers to the Security Agent and
grants to the Security Agent a security interest in the Collateral owned by it
as collateral security for its Obligations, and (iii) expressly assumes all
obligations and liabilities of a Grantor thereunder. The information set forth
in Annex 1-A hereto is hereby added to the information set forth in Schedules
____________ to the Guarantee and Collateral Agreement. The Additional Grantor
hereby represents and warrants that each of the representations and warranties
contained in Section 4 of the Guarantee and Collateral Agreement is true and
correct on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:_________________________________
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this __ day of _______, _____, before me personally came
________________, to me known to be the person who signed the foregoing
instrument and who being duly sworn by me did depose and state that [he,she] is
the ___________ of _______________; [he, she] signed the instrument in the name
of ____________; and [he, she] had the authority to sign the instrument on
behalf of ____________.
____________________________
Notary Public
<PAGE>
Exhibit C
(to Convertible Loan Agreement)
To: CDnow, Inc.
1005 Virginia Drive
Ft. Washington, PA 19034
Facsimile No.: (215) 619-9521
Attention: General Counsel
NOTICE OF CONVERSION ELECTION
Reference is hereby made to that certain Convertible Loan Agreement,
dated as of July 12, 1998, by and between Sony Music Entertainment, Inc., Time
Warner Inc. and CDnow, Inc. ("CDnow").
The undersigned hereby exercises its rights to convert the Note, or a
portion thereof, or Interest payable with respect thereto, into Common Stock of
CDnow, as provided in the Convertible Loan Agreement, and requests that
certificates representing shares of CDnow Common Stock issuable upon such
conversion be issued in the name of, and delivered to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print Name, Address, and Social Security Number)
and, if conversion shall not be with respect to the entire principal amount of
the Note, that a new Note for the principal balance remaining of the Note issued
and registered in the name of, and delivered to, the undersigned at the address
stated below.
Principal Amount To Be Converted $
Interest Amount To Be Converted $
Date: Name _____________________
(Print)
Address:_______________________________________________________________________
_______________________________
(Signature)
<PAGE>
Exhibit D
(to Convertible Loan Agreement)
ADJUSTMENTS
A. Adjustments To Conversion Price. The Conversion Price in clause (a)
of the definition thereof (the "Fixed Conversion Price"), the number of shares
of CDnow Common Stock issuable upon conversion of each Note and the securities
and other assets due to either Lender upon conversion of its Note shall be
subject to adjustment as set forth below from time to time as follows:
(1) Stock Dividends; Stock Splits; Reverse Stock Splits;
Reclassifications. In case the Borrower shall (i) pay a dividend or other
distribution on its CDnow Common Stock in shares of any class or series of
capital stock, (ii) subdivide its outstanding shares of CDnow Common Stock,
(iii) combine its outstanding shares of CDnow Common Stock into a smaller number
of shares of CDnow Common Stock, or (iv) issue any shares of its capital stock
in a reclassification of the CDnow Common Stock, the number of shares of CDnow
Common Stock issuable upon conversion of each Note immediately prior to the
record date for such dividend or distribution or the effective date of such
subdivision or combination shall be adjusted so that the Lenders shall
thereafter be entitled to receive for each Note the kind and number of shares of
CDnow Common Stock and/or other capital stock that the Lenders would have owned
or have been entitled to receive after the happening of any of the events
described above, had the Note been converted immediately prior to the happening
of such event or any record date with respect thereto. An adjustment made
pursuant to this Section (A)(1) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
(2) Distributions of Debt, Assets, Subscription Rights or Convertible
Securities. In case the Borrower shall fix a record date for the making of a
distribution to all holders of shares of CDnow Common Stock of evidences of its
indebtedness, assets, cash dividends or distributions (excluding dividends or
distributions referred to in Sections (A)(1) above and excluding distributions
in connection with the dissolution, liquidation or winding up of the Borrower)
or securities (excluding those referred to in Section (A)(1) above), then, in
each case, the number of shares of CDnow Common Stock issuable after such record
date for such dividend or distribution upon the conversion of each Note shall be
determined by multiplying the number of shares of CDnow Common Stock issuable
upon the conversion of such Note immediately prior to such record date by a
fraction, the numerator of which shall be the Closing Price per share of CDnow
Common Stock immediately prior to the record date for such dividend or
distribution and the denominator of which shall be the Closing Price per share
of CDnow Common Stock immediately prior to the record date for such distribution
less the then fair value (as determined in good faith by the Board of Directors
of the Borrower) of the portion of the assets, evidences of indebtedness, cash
dividends or distributions or securities so distributed applicable to one share
of CDnow Common Stock. An adjustment made pursuant to this Section (A)(2) shall
be made whenever any such distribution is made, and shall become effective on
the date of distribution retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
<PAGE>
2
(3) Issuance of CDnow Common Stock at Less Than Public Market Price.
If the Borrower issues shares of CDnow Common Stock (or rights, options,
warrants or Convertible Securities containing the right to subscribe for or
purchase shares of CDnow Common Stock) ("Additional Shares"), for a
consideration per share less than the public market price per share of CDnow
Common Stock on the date immediately preceding the date the Borrower issues such
additional shares, the Fixed Conversion Price shall be adjusted (calculated to
the nearest $.0001) so that it shall equal the price determined by multiplying
the Fixed Conversion Price in effect immediately prior thereto by a fraction,
the numerator of which shall be (i) an amount equal to the sum of (A) the number
of shares of CDnow Common Stock outstanding immediately prior to such sale and
issuance plus (B) the number of shares of CDnow Common Stock which the aggregate
consideration received (determined as provided below) for such sale or issuance
would purchase at such the public market price per share, and the denominator of
which shall be (ii) the total number of shares of CDnow Common Stock outstanding
immediately after such sale or issuance. Such adjustment shall be made
successively whenever such an issuance is made.
The number of shares of CDnow Common Stock issuable upon the
conversion of each Note shall also be adjusted and shall be that number
determined by multiplying the number of shares of CDnow Common Stock issuable
upon conversion immediately prior to such adjustment by a fraction, the
numerator of which is the Fixed Conversion Price in effect immediately prior to
such adjustment and the denominator is the Fixed Conversion Price as so
adjusted. For the purposes of such adjustments, the shares of CDnow Common Stock
which the holder of any such rights, options, warrants or convertible or
exchangeable securities shall be entitled to subscribe for or purchase shall be
deemed to be issued and outstanding as of the date of the sale and issuance of
the rights, warrants or convertible or exchangeable securities and the
consideration received by the Borrower therefor shall be deemed to be the
consideration received by the Borrower for such rights, options, warrants or
convertible or exchangeable securities, plus the consideration or premiums
stated in such rights, options, warrants, or convertible or exchangeable
securities to be paid for the shares of CDnow Common Stock covered thereby. In
case the Borrower shall sell and issue shares of CDnow Common Stock or rights,
options, warrants or convertible or exchangeable securities containing the right
to subscribe for or purchase shares of CDnow Common Stock for a consideration
consisting, in whole or in part, of property other than cash or its equivalent,
then in determining the "price per share or CDnow Common Stock" and the
"consideration received" by the Borrower for purposes of the first sentence of
this Section (A)(3), the Board of Directors of the Borrower shall determine, in
good faith, the fair value of said property. There shall be no adjustment of the
Fixed Conversion Price in respect of the CDnow Common Stock pursuant to this
Section (A)(3) if the amount of such adjustment shall be less than $0.0001 per
share of CDnow Common Stock; provided, however, that any adjustments which by
reason of this proviso are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
This Section (A)(3) does not apply to (i) any of the transactions
described in Section (A)(1) or (2), (ii) the conversion or exchange of
securities convertible or exchangeable for CDnow Common Stock covered by this
Section (A)(3), (iii) Additional Shares issued in a bona fide public offering
pursuant to a firm commitment underwriting or issued in exchange for equity or
assets in an acquisition or investment in any third party, (iv) the conversion
of any options or issuance of any shares under any options or purchase or other
rights that are outstanding on or prior to the date hereof and that were
<PAGE>
3
issued pursuant to any of the Borrower's employees stock option, appreciation or
purchase rights plans, (v) the conversion of any options or purchase or other
rights or the issuance of any shares under any options or rights that are
granted after the date hereof, whether in accordance with the terms of any of
the Borrower's employee stock option, appreciation or purchase right plans or
otherwise, so long as the conversion price of any such option, warrant,
subscription or purchase right is not less than the Closing Price on the date
that such grant is approved by the Borrower's Board of Directors or a duly
authorized committee thereof or, if later, the date that such conversion price
is established, (vi) the conversion of any other options, warrants or other
subscription or purchase rights outstanding on or prior to the date hereof,
including, without limitation, the Notes, (vii) the exercise of any conversion
or exchange rights outstanding on or prior to the date hereof issued by the
Borrower, or (viii) the exercise of any conversion or exchange rights issued by
the Borrower after the date hereof, so long as the conversion or exchange price
is not less than the Closing Price on the date that such issuance is approved by
the Borrower's Board of Directors or a duly authorized committee thereof or, if
later, the date that such conversion or exchange price is established.
(4) Expiration of Rights, Options and Conversion Privileges. Upon the
expiration of any rights, options, warrants or conversion or exchange
privileges, the issuance of which caused an adjustment pursuant to Section
(A)(3) hereof, if any thereof shall not have been exercised, the Fixed
Conversion Price and the number of shares of CDnow Common Stock issuable upon
the conversion of each Note shall, upon such expiration, be readjusted and shall
thereafter, upon any future conversion, be such as they would have been had they
been originally adjusted (or had the original adjustment not been required, as
the case may be) as if (A) the only shares of CDnow Common Stock so issued were
the shares of CDnow Common Stock, if any, actually issued or sold upon the
exercise of such rights, options, warrants or conversion or exchange rights and
(B) such shares of CDnow Common Stock, if any, were issued or sold for the
consideration actually received by the Borrower upon such exercise plus the
consideration, if any, actually received by the Borrower for issuance, sale or
grant of all such rights, options, warrants or conversion or exchange rights
whether or not exercised; provided, further, that no such readjustment shall
have the effect of increasing the Fixed Conversion Price by an amount, or
decreasing the number of shares issuable upon conversion of each Note by a
number, in excess of the amount or number of the adjustment initially made in
respect to the issuance, sale or grant of such rights, options, warrants or
conversion or exchange rights.
(5) Certain Other Events. If any event occurs as to which the
foregoing provisions of this Section A are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the Board of
Directors of the Borrower fairly protect the conversion rights of the Notes in
accordance with the essential intent and principles of such provisions, then
such Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of such Board, to protect such conversion
rights as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Fixed Conversion Price or decreasing the number of shares of
CDnow Common Stock subject to issuance upon conversion of the Notes.
B. When Adjustments To Be Made. The adjustments required by the
preceding subsections of this Exhibit D shall be made whenever and as often as
any specified event requiring an adjustment shall occur. Adjustments shall
become effective
<PAGE>
4
immediately after the record date for the determination of stockholders entitled
to receive an issuance or distribution, or if there is no record date, then the
date of issuance or distribution described in this Exhibit D. Such adjustments
shall be made successively whenever any event specified in this Exhibit D shall
occur.
C. Notice of Adjustment. Whenever the Fixed Conversion Price or number
of shares subject to each Note shall be adjusted pursuant to this Exhibit D, the
Borrower shall forthwith obtain a certificate signed by the principal financial
officer of the Borrower setting forth, in reasonable detail, the event requiring
the adjustment and the method by which such adjustment was calculated and
specifying the Fixed Conversion Price and the number of shares to each Note,
after giving effect to such adjustment or change. Not less than 30 nor more than
90 days prior to the effective date or 15 days prior to the record date, as the
case may be, of any action which requires or might require an adjustment or
readjustment pursuant to this Exhibit D, the Borrower shall cause a signed copy
of such certificate to be delivered to each Lender. The Borrower shall keep at
its address for notices in Section 10.3 of this Agreement, copies of all such
certificates and cause the same to be available for inspection at said office
during normal business hours by either Lender or any prospective purchaser of
Notes designated by either Lender. Upon the reasonable request of either Lender,
Borrower shall cause independent public accountants of recognized national
standing selected by the Borrower (which may be the regular auditors of the
Borrower) to verify such computation and prepare a report setting forth such
adjustment or readjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which such adjustment or readjustment is
based, including a statement of (i) the number of shares of CDnow Common Stock
outstanding or deemed to be outstanding and (ii) the Fixed Conversion Price and
number of shares subject to the Notes in effect immediately prior to such
adjustment or readjustment and as adjusted and readjusted (if required by this
Exhibit D) on account thereof. The Borrower will forthwith mail a copy of each
such report to the Lenders. The Borrower will also keep copies of all such
reports at its principle office, and will cause the same to be available for
inspection at such office during normal business hours by any Lender, or any
prospective purchaser of a Note designated in writing by any Lender.
D. Fractional Interests. In computing adjustments under this Exhibit
D, fractional interests in CDnow Common Stock shall be taken into account to the
nearest one-thousandth of a share.
E. Merger or Consolidation.
(1) Subject to the provisions of Subsection (2) below of this Section
E, in case of the consolidation of the Borrower with, or merger of the Borrower
with or into, or of the sale of all or substantially all of the properties and
assets of the Borrower to, any Person and in connection therewith consideration
is payable to holders of CDnow Common Stock (or other securities or property
issuable upon conversion of the Notes) in exchange therefor, the Notes shall
remain subject to the terms and conditions set forth in this Agreement and each
Note shall, after such consolidation, merger or sale, entitle the Lenders to
receive upon conversion the number of shares of capital stock or other
securities or property (including cash) of the Borrower, or of such Person
resulting from such consolidation or surviving such merger or to which such sale
shall be made, as the case may be, that would have been distributable or payable
on account of the shares of CDnow Common Stock (or other securities or
properties issuable upon conversion of the Notes) if such Lender's Notes had
been converted immediately prior to such merger,
<PAGE>
5
consolidation or sale (or, if applicable, the record date therefor); and in any
such case the provisions of this Agreement with respect to the rights and
interest thereafter of the Lenders shall be appropriately adjusted by the Board
of Directors of the Borrower in good faith so as to be applicable, as nearly as
may be reasonably be, to any shares or stock or other securities or any property
thereafter deliverable on the conversion of the Notes.
(2) Notwithstanding the foregoing at the election of a Lender in the
exercise of its sole discretion, (x) if the Borrower merges or consolidates
with, or sells all or substantially all of its property and assets to, another
Person and consideration is payable to holders of CDnow Common Stock in exchange
for their CDnow Common Stock in connection with such merger, consolidation or
sale which consists solely of cash, or (y) in the event of the dissolution,
liquidation or winding up of the Borrower, then the electing Lender shall be
entitled to receive distributions on the date of such event on an equal basis
with holders of CDnow Common Stock (or other securities issuable upon conversion
of its Note) as if its Notes had been converted immediately prior to such event,
less the Conversion Price. Upon receipt of such payment, if any, the right of
such Lender shall terminate and cease and such Lender's Note shall expire.
The foregoing provisions of Section E shall similarly apply to
successive mergers, consolidations or dispositions of assets as described in
this Section E.
F. Notice to Holders of Corporate Action. In addition to other
requirements of notice separately provided for in this Agreement, in case at any
time after the date hereof there shall be (i) the taking by the Borrower of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution on such securities, or (ii) a voluntary or involuntary dissolution,
total liquidation or winding up of the Borrower, then the Borrower shall cause
to be mailed (by first- class mail, postage prepaid) to each Lender, at the
earliest practicable time (and, in any event, not less than ten (10) calendar
days before any date set for definitive action), notice of the date on which
such dissolution, liquidation or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of the
shares of record of CDnow Common Stock shall be entitled to exchange their
shares for securities, money or other property deliverable upon such
dissolution, liquidation or winding up, as the case may be, on which date the
Lenders shall be entitled to receive upon surrender of their Notes the cash or
other property, less the Conversion Price for such Notes then in effect, that
the Lenders would have been entitled to receive had the Notes been exercisable
and converted immediately prior to such dissolution, liquidation or winding up
and any and all rights of the Lenders to conversion the Notes shall terminate in
their entirety.
CONFORMED COPY
AMENDMENT dated as of March 13, 2000 (this
"Amendment"), to the Convertible Loan Agreement dated as of
July 12, 1999 (the "Convertible Loan Agreement"), among
CDNOW, INC., a Pennsylvania corporation (the "Borrower"),
SONY MUSIC ENTERTAINMENT INC. ("Sony Music") and TIME WARNER
INC. ("Time Warner", and together with Sony Music, the
"Lenders").
WHEREAS the Borrower and the Lenders have entered into the Convertible
Loan Agreement;
WHEREAS the Borrower and the Lenders desire to amend the Convertible
Loan Agreement to make certain modifications and clarifications to the
provisions contained therein;
NOW, THEREFORE, in consideration of the premises, mutual promises,
representations, warranties and covenants contained in this Amendment, the
parties hereto hereby agree:
SECTION 1. Amendment of Section 1. (a) The definition of the term
"Conversion Price" in Section 1 of the Convertible Loan Agreement is hereby
deleted in its entirety and such definition is hereby replaced with the
following definition:
"'Conversion Price' shall mean $10.00.".
(b) The definition of the term "Final Maturity Date" in Section 1 of
the Convertible Loan Agreement is hereby deleted in its entirety and such
definition is hereby replaced with the following definition:
"'Final Maturity Date' shall mean the earlier of (a) such time as the
Loan Commitment is reduced to zero pursuant to the terms hereof and
(b) January 15, 2003.".
(c) The definition of the term "Indebtedness" in Section 1 of the
Convertible Loan Agreement is hereby amended to delete clause (iv) thereof in
its entirety and such clause is hereby replaced with the following clause:
"(iv) any obligation of such Person issued or assumed as the deferred
purchase price of Property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of
business,
<PAGE>
2
which in either case are not more than 120 days overdue, or
alternative terms of which have been agreed to by the parties (so long
as such terms do not provide for any amounts to be more than 366 days
overdue) or which are being contested in good faith)".
(d) The definition of the term "Interest Rate" in Section 1 of the
Convertible Loan Agreement is hereby deleted in its entirety and such definition
is hereby replaced with the following definition:
"'Interest Rate' shall mean a rate per annum equal to the Eurodollar
Rate plus 3%.".
(e) The definition of the term "Net Debt Proceeds" in Section 1 of the
Convertible Loan Agreement is hereby deleted in its entirety.
(f) The definition of the term "Permitted Interim Financing" in
Section 1 of the Convertible Loan Agreement is hereby deleted in its entirety
and such definition is hereby replaced with the following definition:
"'Permitted Interim Financing' shall mean Indebtedness for borrowed
money incurred by the Borrower provided that (i) the maturity date
thereof extends to at least 366 days beyond the Final Maturity Date,
(ii) such Indebtedness (A) is unsecured or is secured by a Lien that
is junior to any Lien securing any amounts outstanding under this
Agreement and (B) is not guaranteed by any Subsidiary of the Borrower,
(iii) such Indebtedness contains representations, warranties,
covenants and agreements which are not more restrictive, individually
or taken as a whole, than those in effect hereunder and (iv) such
Indebtedness is subject to subordination and intercreditor
arrangements satisfactory to the Lenders (and appropriate to reflect
the senior, secured nature of the Obligations).".
(g) The definition of the term "Third Party Tender Offer" in Section 1
of the Convertible Loan Agreement is hereby amended to add to the end thereof
the phrase "(and replacing every reference to "Company" therein with "Borrower",
the reference to "Purchaser" therein with "Lender" and the reference to "Common
Stock" therein with "common stock, without par value, of the Borrower")".
<PAGE>
3
SECTION 2. Amendment of Section 2.6. Section 2.6 of the Convertible
Loan Agreement is hereby amended to delete clause (i) thereof in its entirety
and such clause is hereby replaced with the following clause:
(i) the Borrower shall give the Lenders written notice (or telephonic
notice promptly confirmed in writing), which notice shall be
irrevocable, of its intent to prepay the Loans, at least five Business
Days prior to a prepayment, which notice shall specify the date (which
shall be a Business Day), the Loans and the amount of such prepayment
and".
SECTION 3. Amendment of Section 2.7. Section 2.7(a) of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced with the following two sentences:
"If the Borrower or any of its Subsidiaries shall receive any proceeds
from any sale, lease, transfer or disposition to any Person of any of
its Property or Equity Securities then the Borrower shall immediately
upon receipt thereof apply in accordance with Section 2.9 an amount in
cash equal to 100% of the Net Sale Proceeds from such sale, lease,
transfer or disposition to the Lenders as a mandatory repayment of
outstanding Loans and reduction in the remaining Loan Commitment in
accordance with the requirements of Section 2.8; provided, however,
that this Section 2.7(a) shall not apply to (i) sales of inventory in
the ordinary course of business, (ii) permitted Sale and Leaseback
Transactions, (iii) sales of shares of CDnow Common Stock to Time
Warner and Sony Corporation of America ("Sony"), or any of their
respective Subsidiaries, pursuant to the Termination Agreement dated
as of the date hereof among Time Warner, Sony, the Borrower, Delaware
Holdco Corporation, Pennsylvania Subsidiary, Inc., Delaware Sub I
L.L.C., Delaware Sub II L.L.C., (iv) sales of shares of Liquid Audio,
Inc. held by the Borrower or any of its subsidiaries in accordance
with the terms of the Consent dated as of the date hereof among the
Borrower, Time Warner and Sony Music or (v) the issuance of Equity
Securities for fair market value representing up to 19.9% of
<PAGE>
4
the then outstanding shares of CDnow Common Stock in connection with
any Permitted Interim Financing. For the avoidance of doubt, if the
Borrower or any of its Subsidiaries shall receive any proceeds from
any Permitted Interim Financing, such proceeds shall not be applied as
a mandatory repayment of outstanding Loans or a reduction in the
remaining Loan Commitment."
Section 2.7(b) of the Convertible Loan Agreement is hereby deleted in
its entirety and Section 2.7(c) of the Convertible Loan Agreement is hereby
denoted Section 2.7(b).
SECTION 4. Amendment of Section 2.8. Section 2.8 of the Convertible
Loan Agreement is hereby amended to delete the second sentence of such section
in its entirety and such sentence is hereby replaced with the following
sentence:
"The excess of any Net Sale Proceeds over amounts required to repay
principal and Interest shall reduce the remaining unused Loan
Commitment.".
SECTION 5. Amendment of Section 5.1. Section 5.1(h) of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced
with the following:
" - five Business Days prior to the Borrower or any Subsidiary
entering into any transaction or taking any action which would result
in a mandatory prepayment under Section 2.7, a written notice
specifying the nature thereof.".
SECTION 6. Amendment of Section 6.3. Section 6.3 of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced with the following sentence:
"The Borrower will not, and will not permit its Subsidiaries to,
directly or indirectly, incur any Indebtedness other than Permitted
Indebtedness, and the Borrower will not issue any Disqualified Stock
or permit any of its Subsidiaries to issue any Disqualified Stock.".
<PAGE>
5
SECTION 7. Amendment of Section 8.1 Section 8.1 of the Convertible
Loan Agreement is hereby deleted in its entirety and such section is hereby
replaced with the following sentence:
"Subject to and upon compliance with the provisions of this Section 8,
each Lender, at its sole option, may, at any time and from time to
time, irrespective of whether the Borrower shall have delivered any
notice pursuant to Section 2.6 or Section 5.1, convert (a) each Note
or any portion of the principal amount thereof which equals $500,000
or any integral multiple thereof, and (b) the amount of accrued and
unpaid Interest on the Loan represented by such Note (including
without limitation any overdue Interest accruing at the Default Rate),
into a number of fully paid and nonassessable shares (calculated as to
each conversion to the nearest 1/100 of a share) of CDnow Common Stock
equal to the quotient obtained by dividing (i) the aggregate of such
principal amount and accrued and unpaid interest to be so converted by
(ii) the Conversion Price, determined as hereinafter provided, in
effect at the time of conversion.
SECTION 8. Representations and Warranties. (a) The Borrower represents
and warrants to each of the Lenders that (i) the Borrower has all requisite
power and authority to execute and deliver this Amendment, (ii) the execution
and delivery by the Borrower of this Amendment have been duly authorized by all
necessary action on the part of the Borrower, (iii) the Borrower has duly
executed and delivered this Amendment, and, assuming the due authorization,
execution and delivery by each person other than the Borrower party hereto, this
Amendment constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms and (iv) the representations and
warranties set forth in the Section 4 of the Convertible Loan Agreement are true
and correct in all material respects on and as of the date of this Amendment
with the same effect as though made on and as of the date hereof, except to the
extent such representations and warranties expressly relate to an earlier date.
(b) Time Warner represents and warrants to the Borrower and Sony Music
that (i) Time Warner has all requisite power and authority to execute and
deliver this Amendment, (ii) the execution and delivery by Time Warner of
<PAGE>
6
this Amendment have been duly authorized by all necessary action on the part of
Time Warner and (iii) Time Warner has duly executed and delivered this
Amendment, and, assuming the due authorization, execution and delivery by each
person other than Time Warner party hereto, this Amendment constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
(c) Sony Music represents and warrants to the Borrower and Time Warner
that (i) Sony Music has all requisite power and authority to execute and deliver
this Amendment, (ii) the execution and delivery by Sony Music of this Amendment
has been duly authorized by all necessary action on the part of Sony Music and
(iii) Sony Music has duly executed and delivered this Amendment, and, assuming
the due authorization, execution and delivery by each person other than Sony
Music party hereto, this Amendment constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 9. Governing Law, Submission to Jurisdiction. (a) THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF
LAW).
(b) Any legal action or proceeding with respect to this Amendment and
any action for enforcement of any judgment in respect hereof may be brought in
the courts of the State of New York in New York County or of the United States
of America for the Southern District of New York, and, by execution and delivery
of this Amendment, the Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Borrower irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Borrower at its address set forth in
Section 10.3 of the Convertible Loan Agreement. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Amendment brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Lenders or any
holder of a Note (as defined in the Convertible Loan
<PAGE>
7
Agreement) to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Borrower in any other
jurisdiction.
SECTION 10. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 11. Headings Descriptive. The headings of the several Sections
of this Amendment are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Amendment.
SECTION 12. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER AND EACH LENDER HEREBY IRREVOCABLY WAIVES
ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR IN CONNECTION WITH THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
SECTION 13. Full Force and Effect. Except as expressly set forth in
this Amendment, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies of
the Lenders or the Borrower under the Convertible Loan Agreement or any other
Loan Document (as defined in the Convertible Loan Agreement), and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Convertible Loan Agreement
or any other Loan Document, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Nothing contained in this
Amendment shall be deemed to entitle the Borrower to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Convertible Loan Agreement
or any other Loan Document in similar or different circumstances. This Amendment
shall constitute a "Loan Document" for all purposes of the Convertible Loan
Agreement and the other Loan Documents. As used in the Convertible Loan
Agreement, the terms "hereof" and "hereto", and words of similar import, shall,
unless the context otherwise requires, refer to the Convertible Loan Agreement
as amended by this Amendment. Any reference in any document to the Convertible
Loan Agreement shall be deemed to be a reference to the Convertible Loan
Agreement as amended by this Amendment.
<PAGE>
8
SECTION 14. Fees and Expenses. All fees and expenses incurred in
connection with this Amendment shall be borne by the party incurring such fees
and expenses.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Amendment, all as of the date first written above.
CDNOW, INC.,
by /s/ Jason Olim
---------------------------
Name: Jason Olim
Title: President and
Chief Executive
Officer
SONY MUSIC ENTERTAINMENT INC.,
by /s/ Thomas C. Tyrrel
---------------------------
Name: Thomas C. Tyrrel
Title: Senior Vice
President and
General Counsel
TIME WARNER INC.,
by /s/ Spencer B. Hays
---------------------------
Name: Spencer B. Hays
Title: Vice President and
Deputy General
Counsel
<PAGE>
9
The undersigned guarantors
under the Guarantee and
Collateral Agreement
entered into in connection
with the Convertible Loan
Agreement hereby consent to
the Amendment and acknowledge
and agree that the Guarantee
and Collateral Agreement
(including the guarantee
provided by such guarantor
thereunder) remains in full
force and effect.
CDNOW ONLINE, INC.,
by
/s/ David A. Capozzi
----------------------------
Name: David A. Capozzi
Title: President
N2K INC.,
by
/s/ David A. Capozzi
---------------------------
Name: David A. Capozzi
Title: President
CDNOW INVESTMENTS, INC.,
by
/s/ David A. Capozzi
---------------------------
Name: David A. Capozzi
Title: President
CDNOW TRADEMARKS, INC.,
by
/s/ David A. Capozzi
---------------------------
Name: David A. Capozzi
Title: President
<PAGE>
10
SUPERSONIC BOOM, INC.,
by
/s/ David A. Capozzi
---------------------------
Name: David A. Capozzi
Title: President
TSI LICENSING, INC.,
by
/s/ David A. Capozzi
---------------------------
Name: David A. Capozzi
Title: President
CONFORMED COPY
CONSENT dated as of March 13, 2000 (this "Consent"), in
respect of the Guarantee and Collateral Agreement (the
"Security Agreement") dated as of January 21, 2000, made by
CDnow, Inc. (the "Borrower") and the other parties
identified therein, in favor of Time Warner Inc., as
Security Agent (in such capacity, the "Security Agent") for
Time Warner Inc. ("Time Warner") and Sony Music
Entertainment Inc. (together with "Time Warner", the
"Lenders") under the Convertible Loan Agreement dated as of
July 12, 1999, among the Borrower and the Lenders (the
"Convertible Loan Agreement").
WHEREAS the Borrower and the Lenders have entered into the Convertible
Loan Agreement;
WHEREAS, in connection with the Convertible Loan Agreement the
Borrower and the other parties identified therein have made the Security
Agreement in favor of the Security Agent;
WHEREAS the Borrower has requested that the Lenders and the Security
Agent (i) consent to the sale of all shares of common stock of, and all warrants
to acquire shares of common stock of, Liquid Audio, Inc. (the "Shares") to a
third party that is not a subsidiary of, or in any way affiliated with, the
Borrower (the "Sale") for a purchase price that is equal to the fair market
value of such shares or warrants, as the case may be, and (ii) release from the
lien created pursuant to the Security Agreement all of the Shares that are sold
in a Sale;
WHEREAS the Lenders and the Security Agent are willing to grant such
consent on the terms, and subject to the conditions, and to the extent set forth
in, this Consent.
NOW, THEREFORE, in consideration of the premises, mutual promises,
representations, warranties and covenants contained in this Consent, the parties
hereto hereby agree:
SECTION 1. Consent and Release. (a) Each of the Lenders and the
Security Agent hereby consents to the Sale of the Shares on the terms, and
subject to the conditions, set forth in this Consent.
(b) Each of the Lenders hereby releases, and hereby authorizes the
Security Agent to execute any and all further documents necessary or desirable
to evidence the
<PAGE>
2
release, from the lien created pursuant to the Security Agreement any and all
Shares that are sold in a Sale, effective upon consummation of such Sale.
SECTION 2. Representations and Warranties. To induce the other parties
to this Consent to enter into this Consent, the Borrower hereby represents and
warrants to each of the Lenders and the Security Agent that (i) the Borrower has
all requisite power and authority to execute and deliver this Consent, (ii) the
execution and delivery by the Borrower of this Consent have been duly authorized
by all necessary action on the part of the Borrower, (iii) the Borrower has duly
executed and delivered this Consent, and, assuming the due authorization,
execution and delivery by each person other than the Borrower party hereto, this
Consent constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms and (iv) the representations and warranties set
forth in the Section 4 of the Convertible Loan Agreement are true and correct in
all material respects on and as of the date of this Consent with the same effect
as though made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
SECTION 3. Conditions. On the date on which any Sale of Shares is
consummated, (i) the representations and warranties set forth in the Section 4
of the Convertible Loan Agreement shall be true and correct in all material
respects on and as of such date with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly
relate to an earlier date and (ii) no Default (as defined in the Convertible
Loan Agreement) or Event of Default (as defined in the Convertible Loan
Agreement) shall have occurred or be continuing.
SECTION 4. Effectiveness of Consent. This Consent shall become
effective as of the date first written above when the Security Agent shall have
received counterparts of this Consent that, when taken together, bear the
signatures of the Borrower, the Security Agent and the Lenders.
SECTION 5. Governing Law, Submission to Jurisdiction. (a) THIS CONSENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
<PAGE>
3
(b) Any legal action or proceeding with respect to this Consent and
any action for enforcement of any judgment in respect hereof may be brought in
the courts of the State of New York in New York County or of the United States
of America for the Southern District of New York, and, by execution and delivery
of this Consent, the Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Borrower irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Borrower at its address set forth in
Section 10.3 of the Convertible Loan Agreement. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Consent brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Lenders or any
holder of a Note (as defined in the Convertible Loan Agreement) or the Security
Agent to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower in any other jurisdiction.
SECTION 6. Counterparts. This Consent may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
SECTION 7. Headings Descriptive. The headings of the several Sections
of this Consent are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Consent.
SECTION 8. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWER, EACH LENDER AND THE SECURITY AGENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT OR ANY OTHER LOAN
DOCUMENT OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
SECTION 8. Full Force and Effect. Except as expressly set forth in
this Consent, this Consent shall not by implication or otherwise limit, impair,
constitute a
<PAGE>
4
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Security Agent or the Borrower under the Convertible Loan Agreement, the
Security Agreement or any other Loan Document (as defined in the Convertible
Loan Agreement), and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Convertible Loan Agreement, the Security Agreement or any other Loan Document,
all of which are ratified and affirmed in all respects and shall continue in
full force and effect. Nothing contained in this Consent shall be deemed to
entitle the Borrower to a consent to, or a waiver, amendment, modification or
other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Convertible Loan Agreement, the Security Agreement
or any other Loan Document in similar or different circumstances. This Consent
shall constitute a "Loan Document" for all purposes of the Convertible Loan
Agreement and the other Loan Documents.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Consent, all as of the date first written above.
CDNOW, INC.,
by /s/ Jason Olim
--------------------------
Name: Jason Olim
Title: President and
Chief Executive
Officer
SONY MUSIC ENTERTAINMENT INC.,
by /s/ Thomas C. Tyrrel
--------------------------
Name: Thomas C. Tyrrel
Title: Senior Vice
President and
General Counsel
TIME WARNER INC., as Lender
and Security Agent,
by /s/ Spencer B. Hays
--------------------------
Name: Spencer B. Hays
Title: Vice President and
Deputy General
Counsel
JOINT FILING AGREEMENT
Time Warner Inc., a Delaware corporation, and TWI CDNow Holdings
Inc., a Delaware corporation, each hereby agrees, in accordance with Rule
13d-1(k) under the Securities Exchange Act of 1934, that the Schedule 13D
filed herewith, and any amendments thereto, relating to the shares of common
stock, without par value, of CDnow, Inc., a Pennsylvania corporation, is, and
will be, filed jointly on behalf of each such person.
Dated: March 22, 2000
TIME WARNER INC.,
by:/s/ Spencer B. Hays
--------------------------------
Name: Spencer B. Hays
Title: Vice President
TWI CDNOW HOLDINGS INC.,
by:/s/ Spencer B. Hays
------------------------------
Name: Spencer B. Hays
Title: Vice President
