PLEDGE AND SECURITY AGREEMENT
THIS
PLEDGE AND SECURITY AGREEMENT (the "Agreement"),
dated
April 21, 2006, is made by Xxxxx Xxxx (the "Pledgor")
in
favor of Nite Capital, L.P., a Delaware limited partnership, individually and
in
its capacity as agent for the Investors (as defined in the Purchase Agreement,
as defined below) (the "Agent").
W
I T N E
S S E T H:
WHEREAS,
pursuant to that certain Purchase Agreement, dated as of even date hereof (the
"Purchase
Agreement"),
by
and among The Tube Media Corp. (the "Borrower")
and
the Investors party thereto (the "Investors"),
the
Investors have agreed to purchase from the Borrower Secured Convertible Notes
in
the aggregate principal amount of $5,000,000 (the "Notes")
and
warrants to purchase shares of the Borrower’s common stock; and
WHEREAS,
the Pledgor is a substantial stockholder and an
executive officer of the Borrower and will derive substantial benefit from
the
purchase of the Notes by the Investors; and
WHEREAS,
in order to induce the Investors to enter into the Purchase Agreement and to
purchase the Notes, the Pledgor has agreed to pledge the Collateral (as defined
in Section 2 below) to the Agent.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein, to induce
the Investors to enter into the Purchase Agreement and to purchase the Notes,
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1
Defined
Terms.
Capitalized terms in this Agreement shall be defined as follows (and as defined
elsewhere in this Agreement):
"Business
Day"
means
any day that is not a Saturday, a Sunday or a day on which banks are required
or
permitted to be closed in the State of New York.
"Distributions"
means
all stock dividends, liquidating dividends, shares of stock resulting from
stock
splits, reclassifications, non-cash dividends and other distributions on or
with
respect to the Shares, whether similar or dissimilar to the foregoing, but
shall
not include Dividends.
"Dividends"
means
all cash dividends declared with respect to the Shares.
"Obligations"
means
any and all obligations, liabilities and indebtedness of every kind, nature
and
description owing by the Borrower to the Investors, including, without
limitation, principal, interest, charges, fees, costs and expenses, however
evidenced, whether as principal, surety, endorser or otherwise, whether arising
under the Purchase Agreement, the Notes or otherwise, whether now existing
or
hereafter arising, and whether direct or indirect, absolute or contingent,
joint
or several, secured or unsecured, due or not due, contractual or tortious,
and
liquidated or unliquidated.
"Shares"
means
the 150,000 shares of common stock of the Borrower owned by the Pledgor as
of
the date of this Agreement.
"UCC"
means
the Uniform Commercial Code as in effect in the State of New York from time
to
time.
1.2 Rules
of Construction.
In this
Agreement, unless specified otherwise:
a. "Any"
means "any one or more"; "including" means "including without limitation";
"or"
means "and/or".
b. Singular
words include plural, and vice versa.
c. Headings
are for convenience only, and do not affect the meaning of any
provision.
d. Reference
to an agreement includes reference to its permitted supplements, restatements,
amendments and other modifications.
e. Reference
to a law includes reference to any amendment or modification of the law and
to
any rules or regulations issued thereunder.
f. Reference
to a person includes reference to its permitted successors and assigns in the
applicable capacity.
g. Reference
to a Section signifies reference to a Section of this Agreement, unless the
context clearly indicates otherwise.
h. "Hereunder,"
"hereto," "hereof," "herein," and like words, refer to the whole of this
Agreement rather than to a particular part hereof, unless the context clearly
indicates otherwise.
1.3 No
Strict Construction.
The
parties acknowledge that this Agreement has been prepared jointly by the Pledgor
and the Agent, and this Agreement shall not be strictly construed against any
party.
2. Grant
of Security Interest.
As
security for the indefeasible payment in full of all of the Obligations, the
Pledgor hereby pledges, assigns and transfers to the Agent, and grants to the
Agent a continuing first priority security interest in and to, the Shares
(including the certificates representing the Shares), together with all
Dividends and Distributions, interest and other payments and rights with respect
thereto, together with all proceeds thereof (collectively, the "Collateral").
The
Pledgor further pledges, assigns and transfers to the Agent, and grants to
the
Agent a continuing first priority security interest in and to, and agrees to
duly endorse to the order of the Agent, any additional Collateral, together
with
all proceeds thereof, from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Shares. Any
Collateral delivered by the Pledgor to the Agent may be endorsed by the Agent,
in its own name or in the name of the Pledgor, on behalf of the Pledgor to
the
order of the Agent.
-2-
3. Stock
Powers, Endorsements, Etc.
The
Pledgor shall, from time to time, upon request of the Agent, promptly execute
such endorsements and deliver to the Agent such stock powers and similar
documents, reasonably satisfactory in form and substance to the Agent, with
respect to the Collateral as the Agent may reasonably request and shall, from
time to time, upon request of the Agent, promptly transfer any securities which
are part of the Collateral into the name of any nominee designated by the Agent
on the books of the entity issuing such securities; provided,
however,
that
the Agent shall not be entitled to effect or demand a transfer of the Collateral
into the name of the Agent or the Agent’s nominee without the consent of the
Pledgor unless and until an Event of Default (as defined in Section 8) shall
have occurred. The Pledgor shall cause the Borrower to record on its books
and
records the pledge created by this Agreement and to execute and deliver the
Acknowledgment and Agreement in the form of Schedule
I
attached
hereto. The Pledgor hereby authorizes and instructs the Borrower to comply
with
any instruction received by it from the Agent without any further order or
further consent from instructions from the Pledgor, and the Pledgor agrees
that
the Borrower shall be fully protected in so complying with any such instructions
from the Agent.
4. Rights
of the Pledgor.
Unless
and until an Event of Default shall have occurred, the Pledgor shall have the
following rights with regard to the Shares:
a. To
vote
the Shares or to give consents, waivers, and ratifications with respect to
the
Shares; provided,
however,
that no
vote shall be cast, and no consent, waiver or ratification shall be given or
action taken, which would have the effect of impairing the position or interest
of the Agent in respect of the Collateral or which would authorize or effect:
(i) the dissolution or liquidation of the Borrower, in whole or in part; or
(ii)
the sale of the Borrower (whether by merger, consolidation, sale of all or
substantially all of the assets or stock of the Borrower or otherwise);
and
b. To
receive any Dividends declared on the Shares; provided,
however,
that
the following Dividends shall remain subject to the liens created by this
Agreement and shall be delivered to the Agent within two (2) Business Days
following receipt thereof: (i) all Dividends paid or payable in connection
with
a partial or total liquidation or dissolution and (ii) cash paid, payable or
otherwise distributed in redemption of, or in exchange for, any
Collateral.
5. Affirmative
Covenants.
Unless
otherwise consented to in writing by the Agent, until the Obligations have
been
indefeasibly paid in full (and so long as the Notes are outstanding), the
Pledgor hereby covenants as follows:
a. The
Pledgor will not sell, assign, or transfer any of his rights in or to the
Collateral;
-3-
b. The
Pledgor will make due and timely payment or deposit of all taxes, assessments,
or contributions required by law which may be lawfully levied or assessed with
respect to the Collateral and will execute and deliver to the Agent on demand,
appropriate certificates attesting to the timely payment or deposit of all
such
taxes, assessments or contributions;
c. The
Pledgor shall notify the Agent in writing within two (2) Business Days of
receipt of any Distributions, and the Pledgor shall deliver such Distributions
to the Agent;
d. The
Pledgor shall observe, conform and comply with the covenants, terms and
conditions of this Agreement. The Pledgor shall promptly notify the Agent in
writing upon the occurrence of any event of default (or any event which, with
the giving of notice and/or the passage of time, could become an event of
default) under this Agreement;
e. At
any
time, or from time to time, upon request of the Agent, the Pledgor shall execute
and deliver such further documents and do such other acts and things as the
Agent may request in order to effectuate more fully the purposes of this
Agreement. The Pledgor hereby authorizes the Agent to file and record in such
public records offices as the Agent may determine such financing statements
as
the Agent may determine relative to the transactions contemplated by this
Agreement; and
f. The
Pledgor has and will defend the title to the Collateral pledged by him and
the
security interest granted in such Collateral to the Agent against the claim
of
any Person (as defined in the Purchase Agreement) and will maintain and preserve
such security interest.
6. No
Other Security Interest.
Unless
the Agent shall otherwise consent in writing, until the Obligations have been
indefeasbily paid in full, the Pledgor hereby covenants that it shall not incur,
create or permit to exist any mortgage, assignment, pledge, hypothecation,
security interest, lien, or other encumbrance (collectively, "Liens")
on any
of the Collateral now owned and pledged in accordance with this Agreement or
hereafter acquired, except for those Liens in favor of the Agent created by
this
Agreement.
7. Representations
and Warranties.
The
Pledgor represents and warrants to the Agent that:
a. The
Pledgor has the capacity to execute and deliver this Agreement and to perform
his obligations hereunder;
b. This
Agreement has been duly executed and delivered by the Pledgor and constitutes
a
valid and binding obligation of the Pledgor, enforceable against the Pledgor
in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting creditors'
rights generally or by general equitable principles and except insofar as the
enforceability of any provision of such agreement would be restricted or void
by
reason of public policy;
-4-
c. The
Pledgor has obtained all requisite consents or approvals necessary for the
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby;
d. The
Pledgor is the legal and beneficial owner of the Shares and no other Person
(including the Pledgor’s spouse) has any right, title or interest in or to the
Shares, and there are no existing options, warrants, calls, purchase rights
or
commitments of any character whatsoever relating to the Shares;
e. The
Collateral is owned by the Pledgor free and clear of any Liens, except for
the
Liens granted herein in favor of the Agent; and
f. Upon
delivery of the Shares to the Agent, this Agreement shall create a first
priority security interest in the Collateral and the proceeds thereof, subject
to no prior or secondary security interest or other Liens.
8. Events
of Default.
8.1 The
occurrence of any one or more of the following events shall constitute an event
of default (each, an "Event
of Default")
by the
Pledgor under this Agreement:
a. any
event
of default shall occur and be continuing under the Notes; and
b. the
breach of any warranty, representation, or covenant made by the Pledgor in
this
Agreement.
9. Remedies
Upon an Event of Default.
9.1 Upon
an
Event of Default, the Agent shall have the following remedies available, at
its
election:
a. To
vote
the Shares;
b. To
give
consents, waivers and ratifications with respect to the Shares;
c. To
receive all dividends, cash, securities and all other distributions of any
kind
given with respect to the Shares;
d. (i) To
sell,
assign or transfer the Shares and any other Collateral pledged under this
Agreement, or any part thereof, in one or more sales, at a public or private
sale, conducted by any officer or agent of, or auctioneer or attorney for,
the
Agent, at a place designated by the Agent, for cash, upon credit or for future
delivery, and at such price or prices as the Agent shall, in its sole and
absolute discretion, determine, and the Agent and/or the Pledgor or any or
all
of them may be the purchaser of any or all of the Collateral so
sold;
-5-
(ii) Upon
any
such sale, the Agent shall have the right to deliver, assign and transfer to
the
purchaser(s) thereof the Collateral so sold. Each purchaser (including the
Agent) at any such sale shall hold the Collateral so sold absolutely free from
any claim or right of any kind whatsoever, including, without limitation, any
equity or right of redemption of the Pledgor, which the Pledgor hereby
specifically waives;
(iii) At
any
such public or private sale, the Collateral may be sold in one lot as an
entirety or in separate installments;
(iv) In
case
of any sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by the Agent until the purchase
price is paid by the purchaser(s) thereof, but the Agent shall not incur any
liability in case of the failure of such purchaser to take up and pay for the
Collateral so sold. In case of any such failure, such Collateral may again
be
sold under and pursuant to the provisions of this Agreement; and
(v) The
receipt from the Agent for the purchase price paid at any such sale of the
Shares shall be a sufficient discharge therefor to any purchaser(s) of the
Collateral, or any portion thereof, sold as described in this Section 9.1(d).
No
such purchaser (or such purchaser's representatives or assigns), after paying
such purchase price and receiving such receipt, shall be bound to see to the
application of such purchase price or any part thereof or in any manner
whatsoever be answerable for any loss, misapplication or non-application of
any
such purchase price, or be bound to inquire as to the authorization, necessity,
expediency or regularity of any such sale;
e. To
institute proceedings to collect all Obligations from the Pledgor or any other
Person who may be responsible for the payment of any Obligations;
and
f. To
exercise any remedy provided for under the UCC, any other applicable law or
the
Agreements.
9.2 Upon
the
occurrence and during the continuance of an Event of Default, the proceeds
of
any sale of, or other realization upon, all or any part of the Collateral shall
be applied by the Agent in the following order of priorities:
a. first,
to
payment of the reasonable out-of-pocket expenses of such sale or other
realization, including reasonable compensation to agents and counsel for the
Agent, and all reasonable out-of-pocket expenses, liabilities and advances
incurred or made by the Agent in connection therewith, and any other
unreimbursed expenses for which the Agent is to be reimbursed pursuant to the
Agreements;
b. second,
to the payment of accrued but unpaid interest (including post-petition interest)
on the Notes;
c. third,
to
the payment of unpaid principal on the Notes;
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d. fourth,
to the payment of all other Obligations, until all such Obligations shall have
been paid in full; and
e. finally,
to payment to the Pledgor or as a court of competent jurisdiction may direct
of
any surplus then remaining from such proceeds.
The
Agent
may make distributions hereunder in cash or in kind or in any combination
thereof.
To
the
extent that fewer than all Shares are sold in full satisfaction of the
Obligations, the remaining Shares shall be returned to the Pledgor.
9.3 The
Pledgor hereby designates, constitutes and appoints the Agent and any designee
or agent of the Agent as its attorney-in-fact, irrevocably and with power of
substitution, to make and execute all conveyances, assignments and instruments
of transfer regarding the Collateral sold pursuant to this Section 9 and to
do
all other acts and things necessary and advisable in the sole discretion of
the
Agent to carry out and enforce this Agreement. The Agent or any designee or
agent of the Agent, in their capacity as attorney-in-fact for the Pledgor,
shall
not be liable for any acts of commission or omission nor for any error of
judgment or mistake of fact or law. This power of attorney being coupled with
an
interest is irrevocable while any of the Obligations shall remain unpaid.
9.4 The
Agent
may, in any order and at any time, simultaneously or not simultaneously,
exercise any of the remedies set forth in this Section 9, in addition to, and
not in lieu of, any remedies that may otherwise be available at law or in
equity.
9.5 The
Pledgor acknowledges that the Shares have not been registered under the
Securities Act of 1933, as amended, or any similar state or federal law and
that, therefore, the Agent may be unable to effect a public sale of all or
any
part of the Shares, and may be compelled to resort to one or more private sales
to a restricted group of purchasers who will be obligated to agree, among other
things, to acquire the Shares for their own account, for investment, and not
with a view to the distribution or resale thereof. The Pledgor acknowledges
that
any such private sales may be at prices and terms less favorable to the Pledgor
than those of public sales, and agrees that such private sales shall be deemed
to have been made in a commercially reasonable manner and that the Agent has
no
obligation to delay any sale to permit the issuer thereof to register them
under
the Securities Act of 1933, as amended.
10. Lien
Absolute.
All
rights of the Agent hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
10.1. any
lack
of validity or enforceability of the Notes or any other agreement or instrument
governing or evidencing any of the Obligations;
10.2. any
change in the time, manner or place of payment of, or in any other term of,
all
or any part of the Obligations, or any other amendment or waiver of, or any
consent to any departure, from the Notes or any other agreement or instrument
governing or evidencing any of the Obligations;
-7-
10.3. any
exchange, release or non-perfection of any collateral (including the
Collateral), or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Obligations;
10.4. the
insolvency of the Borrower; or
10.5. any
other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Pledgor.
11. Release.
The
Pledgor consents and agrees that the Agent may at any time, or from time to
time, in its discretion:
11.1. renew,
extend or change the time of payment, and/or the manner, place or terms of
payment, of all or any part of the Obligations; and
11.2. exchange,
release and/or surrender all or any of the collateral (including the
Collateral), or any part thereof, by whomsoever deposited, which is now or
may
hereafter be held by the Agent in connection with all or any of the Obligations;
all in such manner and upon such terms as the Agent may deem proper, and without
notice to or further assent from the Pledgor, it being hereby agreed that the
Pledgor shall be and remain bound upon this Agreement, irrespective of the
value
or condition of any of the collateral (including the Collateral), and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, renewal or extension.
12. Reinstatement.
This
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Pledgor or the Borrower for
liquidation or reorganization, should the Pledgor or the Borrower become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Pledgor’s or the Borrower’s assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Obligations, or any part thereof, is, pursuant to applicable law, rescinded
or
reduced in amount, or must otherwise be restored or returned by any obligee
of
the Obligations, whether as a “voidable preference”, “fraudulent conveyance”, or
otherwise, all as though such payment or performance had not been made. In
the
event that any payment, or any part thereof, is rescinded, reduced, restored
or
returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
13. Satisfaction;
Agent’s Duty Regarding Shares.
13.1 Promptly
after the Obligations have been indefeasibly paid in full and the Notes are
no
longer outstanding or upon conversion of the Notes in full, this Agreement
shall
be terminated and of no further force and effect.
13.2 Beyond
the exercise of reasonable care to assure the safe custody of the Shares while
held hereunder, the Agent shall have no liability or duty with respect to the
Shares. Placing or depositing the Shares in a bank safe deposit box of the
Agent's selection shall fully and completely satisfy the Agent's duty to
exercise reasonable care. The Agent shall not have any duty or liability to
take
any action or to preserve rights pertaining to the Shares and shall be relieved
of all responsibility for the Shares upon surrendering them or tendering
surrender thereof to the Pledgor.
-8-
14. Nonwaiver.
No
failure or delay on the part of the Agent in exercising any of its rights and
remedies hereunder or otherwise shall constitute a waiver thereof, and no single
or partial waiver by the Agent of any default or other right or remedy which
it
may have shall operate as a waiver of any other default, right or remedy or
of
the same default, right or remedy on a future occasion.
15. Waivers
by the Pledgor.
The
Pledgor hereby waives presentment, notice of dishonor and protest of all
instruments included in or evidencing any of the Obligations or the Collateral
and any and all other notices and demands whatsoever whether or not relating
to
such instruments. In the event of any litigation at any time arising with
respect to any matter connected with this Agreement or the Obligations, the
Pledgor hereby waives any and all defenses, rights of setoff and rights to
interpose counterclaims of any nature.
16. Modification.
No
provision hereof shall be modified, altered or limited except by a written
instrument expressly referring to this Agreement and to the provision so
modified or limited, and executed by the Pledgor and the Agent.
17. Binding
Effect.
This
Agreement and all Obligations of the Pledgor hereunder shall be binding upon
the
successors, assigns, heirs and executors of the Pledgor, and shall, together
with the rights and remedies of the Agent hereunder, inure to the benefit of
the
Agent and its successors, heirs, executors and assigns.
18. Governing
Law; Consent to Jurisdiction.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York, without reference to the choice of law principles
thereof. Any legal action, suit or proceeding arising out of or relating to
this
Agreement shall only be instituted, heard and adjudicated (excluding appeals)
in
a state or federal court located in the Southern District of New York, and
each
party hereto knowingly, voluntarily and intentionally waives any objection
which
such party may now or hereafter have to the laying of the venue of any such
action, suit or proceeding, and irrevocably submits to the exclusive personal
jurisdiction of any such court in any such action, suit or proceeding. Service
of process in connection with any such action, suit or proceeding may be served
on each party hereto anywhere in the world by the same methods as are specified
for the giving of notices under this Agreement.
19. Notices.
All
notices, requests, consents and other communications hereunder shall be in
writing, shall be addressed to the receiving party's address set forth below
or
to such other address as a party may designate by notice hereunder, and shall
be
either (i) delivered by hand, (ii) made by facsimile, (iii) sent
by a recognized overnight courier, or (iv) sent by certified mail, return
receipt requested, postage prepaid.
-9-
If
to the
Pledgor:
Xxxxx
Xxxx
0000
Xxxx
Xxxxxxx Xxxxx Xxxx
Xxxxx
000
Xxxx
Xxxxxxxxxx, XX 00000
Facsimile:
000-000-0000
If
to the
Agent:
Nite
Capital, L.P.
000
Xxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxx
Facsimile:
(000) 000-0000
with
a
copy (which
shall not in itself constitute effective notice)
to:
Xxxxxx
X.
Xxxxxxx, Esq.
Xxxxxxxxxx
Xxxxxxx PC
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
All
notices, requests, consents and other communications hereunder shall be deemed
to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by facsimile, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next Business Day following the day such notice is
delivered to the courier service, or (iv) if sent by registered or certified
mail, on the fifth (5th)
Business Day following the day such mailing is made.
20. Severability.
If any
term of this Agreement shall be held to be invalid, illegal or unenforceable,
the validity of all other terms hereof shall in no way be affected
thereby.
21. Benefit
of Investors.
The
security interest in the Collateral granted herein shall be for the benefit
of
Agent and the Investors, and all proceeds or payments realized from the
Collateral in accordance herewith shall be applied to the holders of the Notes
on a pro-rata basis based on the total outstanding amounts due and owing under
the Notes.
22. The
Agent.
22.1 The
Agent
shall be deemed to be authorized on behalf of each Investor to act on behalf
of
such Investor under this Agreement and to exercise such powers hereunder as
are
specifically delegated to or required of the Agent by the terms hereof, together
with such powers as may be reasonably incidental thereto. By accepting their
Notes, each Investor shall be deemed to have agreed to indemnify the Agent
from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement,
including the reimbursement of the Agent for all out-of-pocket expenses
(including attorneys' fees) incurred by the Agent hereunder or in connection
herewith or in enforcing the Obligations of the Investors under this Agreement,
in all cases as to which the Agent is not reimbursed by the Borrower;
provided
that no
Investor shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements determined by a court of competent jurisdiction in
a
final proceeding to have resulted solely from the Agent's gross negligence
or
willful misconduct. The Agent shall not be required to take any action
hereunder, or to prosecute or defend any suit in respect of this Agreement,
unless the Agent is indemnified to its reasonable satisfaction by the Investors
against loss, costs, liability and expense. If any indemnity in favor of the
Agent shall become impaired, it may call for additional indemnity and cease
to
do the acts indemnified against until such additional indemnity is
given.
-10-
22.2 Neither
the Agent nor any of its directors, officers, partners, employees or agents
shall be liable to any Investor for any action taken or omitted to be taken
by
it under this Agreement, or in connection herewith. The Agent shall not be
responsible to any Investor for any recitals, statements, representations or
warranties herein or in any certificate or other document delivered in
connection herewith or for the condition or value of any of the Collateral,
or
be required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of any of the Notes, the financial
condition of the Borrower or the existence or possible existence of any default
or event of default. The Agent shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent, certificate, statement
or
writing which it believes to be genuine and to have presented by a proper
person.
22.3 The
Agent
shall have the same rights and powers with respect to any Notes held by it
or
any of its affiliates, as any Investor and may exercise the same as if it were
not the Agent.
23. No
Jury Trial. EACH
OF THE PLEDGOR AND THE AGENT HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY
JURY
IN ANY LITIGATION WITH RESPECT TO ANY ASPECT OF THIS AGREEMENT AND REPRESENTS
THAT HE OR IT, AS THE CASE MAY BE, HAS CONSULTED WITH COUNSEL SPECIFICALLY
WITH
RESPECT TO THIS WAIVER.
-11-
IN
WITNESS WHEREOF, the parties have executed or caused this Agreement to be
executed as of the date first written above.
Xxxxx Xxxx |
||
NITE CAPITAL, L.P. | ||
By: | ||
Name: |
||
Title: |
-12-
SCHEDULE
I
ACKNOWLEDGMENT
AND CONSENT
Nite
Capital, L.P.
000
Xxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxxx
The
Tube
Media Corp. ("Company"),
hereby (i) acknowledges receipt of a fully executed copy of the Pledge and
Security Agreement, dated as of April 21, 2006 (the "Agreement";
capitalized terms used herein without definition have the meanings provided
therein), made by Xxxxx Xxxx ("Pledgor")
in
favor of the Agent; (ii) consents and agrees to the pledge by Pledgor of the
Collateral pursuant to the Agreement and to all of the other terms and
provisions of the Agreement; (iii) agrees to comply with all instructions
received by it from the Agent without further consent by Pledgor; (iv) advises
Pledgor and Agent that a pledge of the Shares has been registered on the books
of Company and in the name of the Agent and agrees to so register any additional
shares of capital stock of the Company acquired by the Borrower; and (v)
represents and warrants that, except for the pledge in favor of the Agent,
there
are no Liens to which the Collateral is or may be subject as of the date
hereof.
IN
WITNESS WHEREOF, a duly authorized officer of the undersigned has executed
and
delivered this Acknowledgment and Consent as of this 21st day of April,
2006.
THE TUBE MEDIA CORP. | ||
|
|
|
By: | ||
Name: |
||
Title: |
-13-