AMENDMENT NO. 1 TO GUARANTY AND PLEDGE AGREEMENT
AMENDMENT NO. 1 TO GUARANTY AND PLEDGE AGREEMENT, dated as of June 30,
2005 (this "Amendment"), to the Guaranty and Pledge Agreement, dated as of June
30, 2004 (as so amended, and as it in the future may be amended, modified or
supplemented from time to time in accordance with its terms, the "Agreement"),
by and among Xxxxxx Xxxxxxx Promotions, Inc., a Delaware corporation
(hereinafter the "CKP"), and each of Redwood Holdings Limited, Platinum Partners
Value Limited Arbitrage Fund, L.P. and WEC Partners LLC (collectively, the
"Investors").
WHEREAS, CKP and the Investors have agreed to enter into certain
transactions in connection with the initial investment by the Investors in
Pledge This Holdings, LLC, a Delaware limited liability company ("Pledge This
Holdings"); and
WHEREAS, as a result of those transactions, each of CKP and the
Investors have agreed to amend certain provisions of the Agreement as set forth
in this Amendment.
WHEREAS, the effectiveness of this Amendment is subject to the
satisfaction of the conditions precedent set forth in Section 3 of this
Amendment.
Capitalized terms used but not defined in this Amendment shall have
the meanings given to such terms in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
legal sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendment to Agreement. Subject to the satisfaction of the condition as
to effectiveness set forth in Section 3 of this Amendment, each of CKP and the
Investors agree as follows:
(a) the definition of "Event of Default" contained in Section 1 of the
Agreement is hereby amended by deleting the words "within one year of the date
hereof" and replacing them with the words "on or before December 31, 2005"; and
(b) the first sentence of Section 2 of the Agreement is hereby amended by
deleting the words "by the first anniversary of the date hereof" and replacing
them with the words "on or before December 31, 2005".
2. Representations and Warranties. In order to induce the Investors to
enter into this Amendment, each party hereby, represents and warrants to each of
the other parties as of the date hereof as follows (which representations and
warranties shall survive the execution and delivery of this Amendment):
(a) Each party has the requisite power to execute, deliver and carry out
the terms and provisions of this Amendment;
(b) The execution, delivery and performance of this Amendment has been
duly authorized in accordance with the power and authority of each party and
constitutes the legal, valid and binding obligation of each party, and is
enforceable against each party in accordance with its terms subject (i) as to
enforcement of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally, from time to time in effect, and (ii) to general principles of
equity; and
(c) After giving effect to this Amendment, no event shall have occurred
and be continuing which constitutes or would constitute a default or an Event of
Default under the Agreement.
3. Conditions Precedent. Notwithstanding any term or provision of this
Amendment to the contrary, Section 1 hereof shall not become effective until
each of the parties shall receive fully executed counterparts of each of the
following documents: (i) this Amendment, (ii) Amendment No. 1 to Class A Common
Stock and Installment Payment Agreement, dated as of the date hereof, by and
between CKP and the Investors, (iii) First Amendment to the Limited Liability
Company Agreement of Pledge This Holdings, LLC, (iv) Distribution Interest
Redemption Agreement, dated of the date hereof, by and among Pledge This
Holdings and the Investors, and (v) Guaranty Agreement, dated as of the date
hereof, by WWSB in favor of the Investors.
4. Waiver of Event of Default. The Investors hereby agree to waive any and
all default, breaches of any covenants, breaches of any representations or
warranties, or Events of Default under the Agreement from the date of the
Agreement through the date hereof.
5. References to Agreement. The term "Agreement", "hereof", "herein" and
similar terms as used in the Amendment, and references in the Agreement shall
mean and refer to, from and after the effective date of the amendments contained
herein as determined in accordance with Section 4 hereof, the Agreement, as
amended by this Amendment.
6. Continued Effectiveness. Nothing herein shall be deemed to be a waiver
of any covenant or agreement contained in, or any default or Event of Default
under, the Agreement, except as expressly provided for hereby, and each of the
parties hereto agrees that, as amended by this Amendment, all of the covenants
and agreements and other provisions contained in the Agreement shall remain in
full force and effect from and after the date of this Amendment.
7. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute a single instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall have the
same effectiveness as delivery of a manually executed counterpart of this
Amendment.
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IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment
to be duly executed by their respective officers thereunto duly authorized as of
the day and year first written above.
XXXXXX XXXXXXX PROMOTIONS, INC.
By: /s/ Xxx XxXxxxxxx
-----------------
Xxx XxXxxxxxx
Executive Vice President
REDWOOD HOLDINGS LIMITED
By: ________________________________________
Name:
Title:
PLATINUM PARTNERS VALUE ARBITRAGE FUND L.P.
By: ________________________________________
Name:
Title:
WEC PARTNERS LLC
By:_________________________________________
Name:
Title:
