Pledge and Escrow Agreement - Headliners Entertainment Group Inc. and Cornell Capital Partners LP
AMENDED AND RESTATED PLEDGE AND ESCROW AGREEMENT
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THIS AMENDED AND RESTATED PLEDGE AND ESCROW AGREEMENT (the
"Agreement") is made and entered into as of November 17, 2005 (the
"Effective Date") by and among HEADLINERS ENTERTAINMENT GROUP, INC., a
corporation organized and existing under the laws of the State of Delware
(the "Pledgor"), CORNELL CAPITAL PARTNERS, LP, (the "Pledgee"), and DAVID
GONZALEZ, ESQ., as escrow agent ("Escrow Agent").
RECITALS:
WHEREAS, the Pledgor shall issue and sell to the Pledgee an Amended
and Restated Convertible Debenture of even date herewith in the principal
amount of Eight Million One Hundred Ninety Two Thousand Three Hundred Nine
Dollars (8,192,309) (the "Convertible Debenture"), which shall be
convertible into shares of the Company's common stock, par value $0.001
(the "Common Stock");
WHEREAS, on March 17, 2005, the parties hereto entered into a Pledge
and Escrow Agreement (the "Pledge and Escrow Agreement") pursuant to which
the Pledgor pledged to the Pledgee 100,000,000 shares of Common Stock to
secure the obligations of the Pledgor to the Pledgee;
WHEREAS, this Agreement shall amend and supersede the Pledge and
Escrow Agreement;
WHEREAS, in order to secure the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all of the
Company's obligations (the "Obligations") to the Pledgee or any successor to
the Pledgee under this Agreement, the Convertible Debentures plus any
interest, costs, fees, and any other amounts owed to the Pledgee thereunder,
the Amended and Restated Security Agreement of even date herewith between
the Pledgor and the Pledgee (the "Security Agreement"), and all other
contracts entered into between the parties hereto (collectively, the
"Transaction Documents"), the Pledgor has agreed to irrevocably pledge to
the Pledgee 100,000,000 shares (the "Pledged Shares") of the Pledgor's
common stock; and
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
warranties, and representations herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
TERMS AND CONDITIONS
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1. PLEDGE AND TRANSFER OF PLEDGED SHARES.
1.1. The Pledgor hereby grants to Pledgee a security interest
in all Pledged Shares as security for Pledgor's obligations under the
Convertible Debentures. Simultaneously with the execution of the
Transaction Documents, the Pledgor shall deliver to the Escrow Agent stock
certificates representing the Pledged Shares, together with duly executed
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stock powers or other appropriate transfer documents executed in blank by
the Pledgor (the "Transfer Documents"), and such stock certificates and
Transfer Documents shall be held by the Escrow Agent until the full payment
of all amounts due to the Pledgee under the Convertible Debentures and
through repayment in accordance with the terms of the Convertible
Debentures, or the termination or expiration of this Agreement.
2. RIGHTS RELATING TO PLEDGED SHARES. Upon the occurrence of an
Event of Default (as defined herein), the Pledgee shall be entitled to vote
the Pledged Shares, to receive dividends and other distributions thereon,
and to enjoy all other rights and privileges incident to the ownership of
the Pledged Shares.
3. RELEASE OF PLEDGED SHARES FROM PLEDGE. Upon the payment of all
amounts due to the Pledgee under the Convertible Debentures by repayment in
accordance with the terms of the Note, the parties hereto shall notify the
Escrow Agent to such effect in writing. Upon receipt of such written notice
for payment of the amounts due to the Pledgee under the Convertible
Debentures, the Escrow Agent shall return to the Pledgor the Transfer
Documents and the certificates representing the Pledged Shares,
(collectively the "Pledged Materials"), whereupon any and all rights of
Pledgee in the Pledged Materials shall be terminated. Notwithstanding
anything to the contrary contained herein, upon full payment of all amounts
due to the Pledgee under the Convertible Debentures, by repayment in
accordance with the terms of the Note, this Agreement and Pledgee's security
interest and rights in and to the Pledged Shares shall terminate.
4. EVENT OF DEFAULT. An "Event of Default" shall be deemed to have
occurred under this Agreement upon an Event of Default under the Transaction
Documents.
5. REMEDIES. Upon and anytime after the occurrence of an Event of
Default, the Pledgee shall have the right to provide written notice of such
Event of Default (the "Default Notice") to the Escrow Agent, with a copy to
the Pledgor. As soon as practicable after receipt of the Default Notice,
the Escrow Agent shall deliver to Pledgee the Pledged Materials held by the
Escrow Agent hereunder. Upon receipt of the Pledged Materials, the Pledgee
shall have the right to (i) sell the Pledged Shares and to apply the
proceeds of such sales, net of any selling commissions, to the Obligations
owed to the Pledgee by the Pledgor under the Transaction Documents,
including, without limitation, outstanding principal, interest, legal fees,
and any other amounts owed to the Pledgee, and exercise all other rights and
(ii) any and all remedies of a secured party with respect to such property
as may be available under the Uniform Commercial Code as in effect in the
State of New Jersey. To the extent that the net proceeds received by the
Pledgee are insufficient to satisfy the Obligations in full, the Pledgee
shall be entitled to a deficiency judgment against the Pledgor for such
amount. The Pledgee shall have the absolute right to sell or dispose of the
Pledged Shares in any manner it sees fit and shall have no liability to the
Pledgor or any other party for selling or disposing of such Pledged Shares
even if other methods of sales or dispositions would or allegedly would
result in greater proceeds than the method actually used. The Escrow Agent
shall have the absolute right to disburse the Pledged Shares to the Pledgee
in batches not to exceed 9.9% of the outstanding capital of the Pledgor
(which limit may be waived by the Pledgee providing not less than 65 days'
prior written notice to the Escrow Agent). The Pledgee shall return any
Pledged Shares released to it and remaining after the Pledgee has applied
the net proceeds to all amounts owed to the Pledgee.
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5.1. Each right, power and remedy of the Pledgee provided for
in this Agreement or any other Transaction Document shall be cumulative and
concurrent and shall be in addition to every other such right, power or
remedy. The exercise or beginning of the exercise by the Pledgee of any
one or more of the rights, powers or remedies provided for in this
Agreement or any other Transaction Document or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Pledgee of all such other rights,
powers or remedies, and no failure or delay on the part of the Pledgee to
exercise any such right, power or remedy shall operate as a waiver thereof.
No notice to or demand on the Pledgor in any case shall entitle it to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of any of the rights of the Pledgee to any other further
action in any circumstances without demand or notice. The Pledgee shall have
the full power to enforce or to assign or contract is rights under this
Agreement to a third party.
5.2. Demand Registration Rights. In addition to all other
remedies available to the Pledgee, upon an Event of Default, the Pledgor
shall promptly, but in no event more than thirty (30) days after the date of
the Default Notice, file a registration statement to register with the
Securities and Exchange Commission the Pledged Shares for the resale by the
Pledgee. The Pledgor shall cause the registration statement to remain in
effect until all of the Pledged Shares have been sold by the Pledgee.
6. CONCERNING THE ESCROW AGENT.
6.1. The Escrow Agent undertakes to perform only such duties as
are expressly set forth herein and no implied duties or obligations shall be
read into this Agreement against the Escrow Agent.
6.2. The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in
such a writing or instrument, and may assume that any person purporting to
give any writing, notice, advice or instructions in connection with the
provisions hereof has been duly authorized to do so. The Escrow Agent shall
not be liable in any manner for the sufficiency or correctness as to form,
manner, and execution, or validity of any instrument deposited in this
escrow, nor as to the identity, authority, or right of any person executing
the same; and its duties hereunder shall be limited to the safekeeping of
such certificates, monies, instruments, or other document received by it as
such escrow holder, and for the disposition of the same in accordance with
the written instruments accepted by it in the escrow.
6.3. Pledgee and the Pledgor hereby agree, to defend and
indemnify the Escrow Agent and hold it harmless from any and all claims,
liabilities, losses, actions, suits, or proceedings at law or in equity, or
any other expenses, fees, or charges of any character or nature which it may
incur or with which it may be threatened by reason of its acting as Escrow
Agent under this Agreement; and in connection therewith, to indemnify the
Escrow Agent against any and all expenses, including attorneys' fees and
costs of defending any action, suit, or proceeding or resisting any claim
(and any costs incurred by the Escrow Agent pursuant to Sections 6.4 or 6.5
hereof). The Escrow Agent shall be vested with a lien on all property
deposited hereunder, for indemnification of attorneys' fees and court costs
regarding any suit, proceeding or otherwise, or any other expenses, fees, or
charges of any character or nature, which may be incurred by the Escrow
Agent by reason of disputes arising between the makers of this escrow as to
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the correct interpretation of this Agreement and instructions given to the
Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent,
regardless of the instructions aforesaid, to hold said property until and
unless said additional expenses, fees, and charges shall be fully paid. Any
fees and costs charged by the Escrow Agent for serving hereunder shall be
paid by the Pledgor.
6.4. If any of the parties shall be in disagreement about the
interpretation of this Agreement, or about the rights and obligations, or
the propriety of any action contemplated by the Escrow Agent hereunder, the
Escrow Agent may, at its sole discretion deposit the Pledged Materials with
the Clerk of the United States District Court of New Jersey, sitting in
Newark, New Jersey, and, upon notifying all parties concerned of such
action, all liability on the part of the Escrow Agent shall fully cease and
terminate. The Escrow Agent shall be indemnified by the Pledgor, the
Company and Pledgee for all costs, including reasonable attorneys' fees in
connection with the aforesaid proceeding, and shall be fully protected in
suspending all or a part of its activities under this Agreement until a
final decision or other settlement in the proceeding is received.
6.5. The Escrow Agent may consult with counsel of its own
choice (and the costs of such counsel shall be paid by the Pledgor and
Pledgee) and shall have full and complete authorization and protection for
any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel. The Escrow Agent shall not be liable for
any mistakes of fact or error of judgment, or for any actions or omissions
of any kind, unless caused by its willful misconduct or gross negligence.
6.6. The Escrow Agent may resign upon ten (10) days' written
notice to the parties in this Agreement. If a successor Escrow Agent is not
appointed within this ten (10) day period, the Escrow Agent may petition a
court of competent jurisdiction to name a successor.
6.7 Conflict Waiver. The Pledgor hereby acknowledges that the
Escrow Agent is general counsel to the Pledgee, a partner in the general
partner of the Pledgee, and counsel to the Pledgee in connection with the
transactions contemplated and referred herein. The Pledgor agrees that in
the event of any dispute arising in connection with this Agreement or
otherwise in connection with any transaction or agreement contemplated and
referred herein, the Escrow Agent shall be permitted to continue to
represent the Pledgee and the Pledgor will not seek to disqualify such
counsel and waives any objection Pledgor might have with respect to the
Escrow Agent acting as the Escrow Agent pursuant to this Agreement.
6.8 Notices. Unless otherwise provided herein, all demands,
notices, consents, service of process, requests and other communications
hereunder shall be in writing and shall be delivered in person or by
overnight courier service, or mailed by certified mail, return receipt
requested, addressed:
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If to the Pledgor, to:
Headliners Entertainment Group, Inc.
501 Bloomfield Avenue
Montclair, New Jersey 07042
Attention: Eduardo Rodriguez
Telephone: (973) 233-1233
Facsimile: (973) 233-1299
With a copy to:
Robert Brantl, Esq,
322 Fourth Street
Brooklyn, NY 11215
Telephone: (718) 768-6045
Facsimile: (718) 965-4042
If to the Pledgee:
Cornell Capital Partners, LP
101 Hudson Street, Suite 3700
Jersey City, NJ 07302
Attention: Mark A. Angelo
Telephone: (201) 985-8300
Facsimile: (201) 985-8744
With copy to:
Troy Rillo, Esq.
101 Hudson Street, Suite 3700
Jersey City, NJ 07302
Telephone: (201) 985-8300
Facsimile: (201) 985-1964
Any such notice shall be effective (a) when delivered, if delivered by hand
delivery or overnight courier service, or (b) five (5) days after deposit in
the United States mail, as applicable.
7. BINDING EFFECT. All of the covenants and obligations contained
herein shall be binding upon and shall inure to the benefit of the
respective parties, their successors and assigns.
8. GOVERNING LAW; VENUE; SERVICE OF PROCESS. The validity,
interpretation and performance of this Agreement shall be determined in
accordance with the laws of the State of New Jersey applicable to contracts
made and to be performed wholly within that state except to the extent that
Federal law applies. The parties hereto agree that any disputes, claims,
disagreements, lawsuits, actions or controversies of any type or nature
whatsoever that, directly or indirectly, arise from or relate to this
Agreement, including, without limitation, claims relating to the inducement,
construction, performance or termination of this Agreement, shall be brought
in the state superior courts located in Hudson County, New Jersey or Federal
district courts located in Newark, New Jersey, and the parties hereto agree
not to challenge the selection of that venue in any such proceeding for any
reason, including, without limitation, on the grounds that such venue is an
inconvenient forum. The parties hereto specifically agree that service of
process may be made, and such service of process shall be effective if made,
pursuant to Section 8 hereto.
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9. ENFORCEMENT COSTS. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees, court costs and all
expenses even if not taxable as court costs (including, without limitation,
all such fees, costs and expenses incident to appeals), incurred in that
action or proceeding, in addition to any other relief to which such party or
parties may be entitled.
10. REMEDIES CUMULATIVE. No remedy herein conferred upon any party
is intended to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law, in equity, by statute,
or otherwise. No single or partial exercise by any party of any right,
power or remedy hereunder shall preclude any other or further exercise
thereof.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
12. NO PENALTIES. No provision of this Agreement is to be
interpreted as a penalty upon any party to this Agreement.
13. JURY TRIAL. EACH OF THE PLEDGEE AND THE PLEDGOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT WHICH IT MAY HAVE
TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN ANY WAY CONNECTED WITH THE DEALINGS
BETWEEN PLEDGEE AND PLEDGOR, THIS PLEDGE AND ESCROW AGREEMENT OR ANY
DOCUMENT EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
and Escrow Agreement as of the date first above written.
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Mark Angelo
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Mark Angelo
Title: Portfolio Manager
HEADLINERS ENTERTAINMENT GROUP, INC.
By: /s/ Eduardo Rodriguez
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Name: Eduardo Rodriguez
Title: Chief Executive Officer
ESCROW AGENT
By: /s/ David Gonzalez
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Name: David Gonzalez, Esq.