STOCK PLEDGE AGREEMENT
STOCK
PLEDGE AGREEMENT ("Agreement")
entered into as of the 7th day of December 2006 by and among Xxxx Xxxx (the
“Secured Party”), and Phantom Entertainment, Inc. (the “Pledgor”).
RECITALS
A. The
Pledgor has agreed to pledge certain shares as security for: (i) the performance
by the Pledgor of its obligations under its Original Issue Discount Secured
Note
in an aggregate face amount of up to Two Hundred Fifty Thousand and 00/100
Dollars ($250,000.00) payable to the Secured Party (the “Note”)
and
(ii) the performance by Xxxxxxx Xxxxxxx of his Guaranty delivered to Secured
Party of even date herewith. Capitalized terms in this Agreement which are
not
identified herein will have the meanings given such terms in the Note.
B. The
Secured Party is willing to accept the Note from the Company only upon receiving
the Guaranty and pledge of certain stock as set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the premises, the mutual covenants and conditions
contained herein, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
1. Grant
of Security Interest.
Pledgor
hereby pledges to the Secured Party as collateral and security for the Secured
Obligations (as defined in paragraph 2) the securities initially set forth
on
the attached Schedule 1 of this Agreement, (the “Pledged
Shares”).
Within five (5) business days of the date of this Agreement, the Pledgor shall
deliver to the Secured Party certificate(s) representing the Pledged Shares,
along with a stock transfer power duly executed in blank by the Pledgor and
stamped with a bank medallion guarantee. If
on any
weekly anniversary during the term of the Note, the market value of the
Collateral then held by the escrow agent, does not equal or exceed two and
one-quarter (2.25) times the Maturity Amount of the Note, then within five
(5)
business days after such anniversary date, the Pledgor shall deliver to be
held
under the terms of this Agreement a certificate or certificates for additional
shares and necessary stock powers equal to not less than two and one-quarter
(2.25) times the Maturity Amount of the Note (the “True-up Shares”). The True-up
Shares shall be valued at the Market Value on the relevant weekly anniversary
date of the Note. For purposes of calculating the market value of the Pledged
Shares, the market price will be the average daily volume weighted average
price
of the Company’s common stock for the five (5) trading
days subsequent to the most recent weekly anniversary date of this Note. If
the
Pledgor fails to deliver the True-up Shares to the Secured Party within five
business days after prior recalculation, the Pledgor shall pay to the Secured
Party, in cash, Two Hundred Fifty ($250) Dollars per business day until such
certificates are delivered. Unless otherwise set forth on Schedule 1 of this
Agreement, Pledgor is the beneficial and record owner of the Pledged Shares
set
forth opposite such Pledgor’s name on such Schedule. Such Pledged Shares,
together with any additions, replacements, accessions and substitutes therefore,
or proceeds thereof, are hereinafter referred to collectively as the
“Collateral.” Market
Value means the average closing bid price for the five trading days prior to
the
date on which the Collateral is valued for purposes of this Section
1.
2. Secured
Obligations.
During
the term hereof, the Collateral shall secure the following:
a. The
performance by the Pledgor of its obligations, covenants, and agreements under
the Note, or of its obligations, covenants, and agreements under any additional
notes which the Company may issue to the Secured Party after the date
hereof.
b. The
performance by Xxxxxxx Xxxxxxx of his obligations, covenants, and agreements
under the Guaranty.
The
obligations, covenants and agreements described in clause (a) and (b) are the
“Secured
Obligations.”
3. Perfection
of Security Interests.
(a)
Upon execution of this Agreement by the Pledgor, the Pledgor shall deliver
the
Pledge Shares, together with Stock Powers (with Medallion Guarantees
annexed).
(b) The
Pledgor will, at its expense, cause to be searched the public records with
respect to the Collateral and will execute, deliver, file and record (in such
manner and form as the Secured Party may require), or permit the Secured Party
to file and record, as its attorney in fact, any financing statements, any
carbon,
photographic
or other reproduction of a financing statement or this Agreement (which shall
be
sufficient as a financing statement hereunder), any specific assignments or
other paper that may be reasonably necessary or desirable, or that the Secured
Party may request, in order to create, preserve, perfect or validate any
Security Interest or to enable the Secured Party to exercise and enforce its
rights hereunder with respect to any of the Collateral. The Pledgor hereby
appoints the Secured Party as the Pledgor’s attorney-in-fact to execute in the
name and behalf of the Pledgor, as the case may be, such additional financing
statements as the Secured Party may request.
4. Assignment.
In
connection with the transfer of the Note in accordance with their terms, the
Secured Party may assign or transfer the whole or any part of its security
interest granted hereunder, and may transfer as collateral security the whole
or
any part of the Secured Party's security interest in the Collateral. Any
transferee of the Collateral shall be vested with all of the rights and powers
of Secured Party hereunder with respect to the Collateral.
5. Pledgor’s
Warranty.
(A)
Title. The Pledgor represents and warrants hereby to the Secured Party as
follows with respect to the Pledged Shares set forth opposite such Pledgor’s
name on Schedule 2 to this Agreement:
(i) that
the
Collateral is free and clear of any encumbrances of every nature whatsoever,
and
such Pledgor is the sole owner of the Pledged Shares;
(ii) the
Pledgor further agree not to grant or create, any security interest, claim,
lien, pledge or other encumbrance with respect to such Collateral or attempt
to
sell, transfer or otherwise dispose of the Collateral, until the Secured
Obligations have been paid in full or this Agreement terminates;
and
(iii) this
Agreement constitutes a legal, valid and binding obligation of the Pledgor
enforceable in accordance with its terms (except as the enforcement thereof
may
be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and similar laws, now or hereafter in effect),
B. Other:
(i)
Pledgor fully intends to fulfill and has the capability of fulfilling the
Secured Obligations to be performed by the Pledgor in accordance with the terms
of the Notes.
(ii) The
Pledgor is not acting, and has not agreed to act, in any plan to sell or dispose
of any Shares in a manner intended to circumvent the registration requirements
of the Securities Act of 1933, as amended, or any applicable state
law.
6. Collection
of Dividends and Interest.
During
the term of this Agreement and so long as Pledgor is not in default under the
Note, Pledgor is authorized to collect all dividends, distributions, interest
payments, and other amounts that may be, or may become, due on any of the
Collateral.
7. Voting
Rights.
During
the term of this Agreement and until such time as this Agreement has terminated
or Secured Party has exercised its rights under this Agreement to foreclose
its
security interest in the Collateral, Pledgor shall have the right to exercise
any voting rights evidenced by, or relating to, the Collateral.
8. Warrants
and Options.
In the
event that, during the term of this Agreement, subscription, spin-off, warrants,
dividends, or any other rights or option shall be issued in connection with
the
Collateral, such warrants, dividends, rights and options shall be immediately
delivered to Secured Party to be held under the terms hereof in the same manner
as the Collateral.
9. Preservation
of the Value of the Collateral.
Pledgor
shall pay all taxes, charges, and assessments against the Collateral and do
all
acts necessary to preserve and maintain the value thereof.
10. Secured
Party as Pledgor's Attorney-in-Fact.
(a) Pledgor
hereby irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with
full authority in the place and stead of Pledgor and in the name of Pledgor,
Secured Party or otherwise, from time to time at Secured Party's discretion,
to
take any action and to execute any instrument that Secured Party may reasonably
deem necessary or advisable to accomplish the purposes of this Agreement,
including: (i) upon the occurrence and during the continuance of an Event of
Default, to receive, indorse, and collect all instruments made payable to
Pledgor representing any dividend, interest payment or other distribution in
respect of the Collateral or any part thereof to the extent permitted hereunder
and to give full discharge for the same and to execute and file
governmental
notifications and reporting forms; (ii) to arrange for the transfer of the
Collateral on the books of any of the Company or any other Person to the name
of
Secured Party or to the name of Secured Party's nominee.
(b) In
addition to the designation of Secured Party as Pledgor's attorney-in-fact
in
subsection (a), Pledgor hereby irrevocably appoints Secured Party as Pledgor's
agent and attorney-in-fact to make, execute and deliver any and all documents
and writings which may be necessary or appropriate for approval of, or be
required by, any regulatory authority located in any city, county, state or
country where Pledgor engages in business, in order to transfer or to more
effectively transfer any of the Pledged Interests or otherwise enforce Secured
Party's rights hereunder.
11. Remedies
upon Default.
Upon
the
occurrence and during the continuance of an Event of Default under the Note
and/or the Guaranty “Event of Default”):
(a) Secured
Party may exercise in respect of the Collateral, in addition to other rights
and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the Code (irrespective of whether
the Code applies to the affected items of Collateral), and Secured Party may
also without notice (except as specified below) sell the Collateral or any
part
thereof in one or more parcels at public sale, at any exchange, broker's board
or at any of Secured Party's offices or elsewhere, for cash, on credit or for
future delivery, at such time or times and at such price or prices and upon
such
other terms as Secured Party may deem commercially reasonable, irrespective
of
the impact of any such sales on the market price of the Collateral. To the
maximum extent permitted by applicable law, Secured Party may be the purchaser
of any or all of the Collateral at any such sale and shall be entitled, for
the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply all or any part of the Secured Obligations as a credit on account of
the
purchase price of any Collateral payable at such sale. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of Pledgor, and Pledgor hereby waives (to the extent permitted
by
law) all rights of redemption, stay, or appraisal that it now has or may at
any
time in the future have under any rule of law or statute now existing or
hereafter enacted. Pledgor agrees that, to the extent notice of sale shall
be
required by law, at least ten (10) calendar days notice to Pledgor of the time
and place of any public sale is to be made shall constitute reasonable
notification. Secured Party shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Secured Party may
adjourn any public sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) Notwithstanding
the foregoing, the Secured Party hereby acknowledges that the total number
of
shares of stock that may be sold pursuant to Section 11(a) of this Agreement
shall not exceed, on any given trading day, the greater of: (i) 3% of the
aggregate trading volume during the previous five (5) trading days, including
that day; (ii) 15% of the trading volume on that day; or (iii) such number
of
shares as yield proceeds (net of commissions) of $250,000.
(c) Secured
Party hereby agrees that, upon delivery of an opinion of counsel stating that
the rights of the Secured Party will not be affected thereby, other shares
of
the Borrower’s common stock may at any time be substituted for all or a portion
of the Pledged Shares;
(d) Pledgor
hereby agrees that any sale or other disposition of the Collateral conducted
in
conformity with reasonable commercial practices of banks, insurance companies,
or other financial institutions in the city and state where Secured Party is
located in disposing of property similar to the Collateral shall be deemed
to be
commercially reasonable.
(e) Pledgor
hereby acknowledges that the sale by Secured Party of any Collateral pursuant
to
the terms hereof in compliance with the Securities Act of 1933 as now in effect
or as hereafter amended, or any similar statute hereafter adopted with similar
purpose or effect (the "Securities Act"), as well as applicable "Blue Sky"
or
other state securities laws, may require strict limitations as to the manner
in
which Secured Party or any subsequent transferee of the Collateral may dispose
thereof. Pledgor acknowledges and agrees that in order to protect Secured
Party's interest it may be necessary to sell the Collateral at a price less
than
the maximum price attainable if a sale were delayed or were made in another
manner, such as a public offering under the Securities Act. Pledgor has no
objection to sale in such a manner and agrees that Secured Party shall have
no
obligation to obtain the maximum possible price for the Collateral. Without
limiting the generality of the foregoing, Pledgor agrees that, upon the
occurrence and during the continuation of an Event of Default, Secured Party
may, subject to applicable law, from
time
to
time attempt to sell all or any part of the Collateral by a private placement,
restricting the bidders and prospective purchasers to those who will represent
and agree that they are purchasing for investment only and not for distribution.
In so doing, Secured Party may solicit offers to buy the Collateral or any
part
thereof for cash, from a limited number of investors reasonably believed by
Secured Party to be institutional investors or other accredited investors who
might be interested in purchasing the Collateral. If Secured Party shall solicit
such offers, then the acceptance by Secured Party of one of the offers shall
be
deemed to be a commercially reasonable method of disposition of the
Collateral.
(f) If
Secured Party shall determine to exercise its right to sell all or any portion
of the Collateral pursuant to this Section, Pledgor agrees that, upon request
of
Secured Party, Pledgor will, at its own expense:
(i) execute
and deliver, or cause the officers and directors of the Company to execute
and
deliver, to any person, entity or governmental authority as Secured Party may
choose, any and all documents and writings which, in Secured Party's reasonable
judgment, may be necessary or appropriate for approval, or be required by,
any
regulatory authority located in any city, county, state or country where Pledgor
or the Company engage in business, in order to transfer or to more effectively
transfer the Pledged Interests or otherwise enforce Secured Party's rights
hereunder; and
(ii) do
or
cause to be done all such other acts and things as may be necessary to make
such
sale of the Collateral or any part thereof valid and binding and in compliance
with applicable law; and
(iii) cause
the
Company to timely file all periodic reports required to be filed by the Company
under the Securities Exchange Act of 1934.
Pledgor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section may be specifically enforced.
(g) PLEDGOR
EXPRESSLY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY LAW: (i) ANY CONSTITUTIONAL
OR OTHER RIGHT TO A JUDICIAL HEARING PRIOR TO THE TIME SECURED PARTY DISPOSES
OF
ALL OR ANY PART OF THE COLLATERAL AS PROVIDED IN THIS SECTION; (ii) ALL RIGHTS
OF REDEMPTION, STAY, OR APPRAISAL THAT IT NOW HAS OR MAY AT ANY TIME IN THE
FUTURE HAVE UNDER ANY RULE OF LAW OR STATUTE NOW EXISTING OR HEREAFTER ENACTED;
AND (iii) EXCEPT AS SET FORTH IN SUBSECTION (a) OF THIS SECTION 11, ANY
REQUIREMENT OF NOTICE, DEMAND, OR ADVERTISEMENT FOR SALE.
12. (a)
Term
of Agreement.
This
Agreement shall continue in full force and effect until the payment in full
of
the Note. If the Note is paid in full, the security interests in the relevant
Collateral shall be deemed released, and any portion of the Collateral not
transferred to or sold by any one or more Secured Parties shall be returned
to
the Pledgor (and for such purpose, delivery to Xxxxxx Xxxxxx, Esq., of Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP of New York, NY shall deemed to comply with such
return requirement). Upon termination of this Pledge Agreement, the relevant
Collateral shall be returned within five (5) Trading Days to Debtor or to the
Pledgor, as contemplated above.
(b) Application
of Proceeds.
Upon
the occurrence and during the continuance of an Event of Default, any cash
held
by Secured Party as Collateral and all cash Proceeds received by Secured Party
in respect of any sale of, collection from, or other realization upon all or
any
part of the Collateral pursuant to the exercise by Secured Party of its remedies
as a secured creditor as provided in Section 9 shall be applied from time to
time by the Secured Part as provided in the Note.
13. Indemnity
and Expenses.
Pledgor
agrees:
(a) To
indemnify and hold harmless Secured Party and each of its directors, officers,
employees, agents and affiliates from and against any and all claims, damages,
demands, losses, obligations, judgments and liabilities (including, without
limitation, reasonable attorneys' fees and expenses) in any way arising out
of
or in connection with this Agreement or the Secured Obligations, except to
the
extent the same shall arise as a result of the gross negligence or willful
misconduct of the party seeking to be indemnified; and
(b) To
pay
and reimburse Secured Party upon demand for all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) that
Secured Party may incur in connection with (i) the custody, use or preservation
of, or the sale of, collection from or other realization upon, any of the
Collateral, including the reasonable expenses of re-taking, holding, preparing
for sale or lease, selling or otherwise disposing of or realizing on the
Collateral, (ii) the exercise or enforcement of any rights or remedies granted
hereunder, under the Note or otherwise available to it (whether at law, in
equity or otherwise), or (iii) the failure by Pledgor to perform or observe
any
of the provisions hereof. The provisions of this Section shall survive the
execution and delivery of this Agreement, the repayment of any of the Secured
Obligations, the termination of the commitments of Secured Party under the
Note
and the termination of this Agreement.
14. Duties
of Secured Party.
The
powers conferred on Secured Party hereunder are solely to protect its interests
in the Collateral and shall not impose on it any duty to exercise such powers.
Except as provided in Section 9-207 of the Code, Secured Party shall have no
duty with respect to the Collateral or any responsibility for taking any
necessary steps to preserve rights against any Persons with respect to any
Collateral.
15. Choice
of Law and Venue; Submission to Jurisdiction; Service of Process.
(a) THE
VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT,
AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY,
AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REFERENCE
TO THE CHOICE OF LAW PRINCIPLES THEREOF). THE PARTIES AGREE THAT ALL ACTIONS
OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN SARASOTA COUNTY,
STATE
OF FLORIDA OR, AT THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN WHICH
SECURED PARTY SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS
SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY.
(b) PLEDGOR
HEREBY SUBMITS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES, TO
THE
EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
(c) PLEDGOR
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT, OR OTHER PROCESS
ISSUED IN ANY ACTION OR PROCEEDING AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT, OR OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO PLEDGOR AT ITS ADDRESS FOR NOTICES IN ACCORDANCE WITH THIS
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER
OF
PLEDGOR'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED
STATES MAILS, PROPER POSTAGE PREPAID.
(d) NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF SECURED
PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO
PRECLUDE THE ENFORCEMENT BY SECURED PARTY OF ANY JUDGMENT OR ORDER OBTAINED
IN
SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME
IN
ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
16. Amendments;
etc.
No
amendment or waiver of any provision of this Agreement nor consent to any
departure by Pledgor herefrom shall in any event be effective unless the same
shall be in writing and signed by Secured Party, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No failure on the part of Secured Party to exercise, and no
delay in exercising any right under this Agreement, any other Credit Document,
or otherwise with respect to any of the Secured Obligations, shall operate
as a
waiver thereof; nor shall any single or partial exercise of any right under
this
Agreement, any other Credit Document, or otherwise with respect to any of the
Secured Obligations preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided for in this Agreement or
otherwise with respect to any of the Secured Obligations are cumulative and
not
exclusive of any remedies provided by law.
17. Notices.
Unless
otherwise specifically provided herein, all notices shall be in writing
addressed to the respective party as set forth below: and may be personally
served, faxed, telecopied or sent by overnight courier service or United States
mail:
If
to
Pledgor:
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxxxx 00000
Attn:
Xxxx Xxxxx
Fax:
(000) 000-0000
With
copies to:
Xxxxxx
X.
Xxxxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Fax
No.: 000-000-0000
If
to
Secured Party:
Xxxx
Xxxx
000
Xxxx
Xxxxxx Xxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Any
notice given pursuant to this section shall be deemed to have been given: (a)
if
delivered in person, when delivered; (b) if delivered by fax, on the date of
transmission if transmitted on a Business Day before 4:00 p.m. at the place
of
receipt or, if not, on the next succeeding Business Day; (c) if delivered by
overnight courier, two (2) days after delivery to such courier properly
addressed; or (d) if by United States mail, four (4) Business Days after
depositing in the United States mail, with postage prepaid and properly
addressed. Any party hereto may change the address or fax number at which it
is
to receive notices hereunder by notice to the other party in writing in the
foregoing manner.
18. Continuing
Security Interest.
This
Agreement shall create a continuing security interest in the Collateral and
shall: (a) remain in full force and effect until the indefeasible payment in
full of the Secured Obligations, including the cash collateralization,
expiration, or cancellation of all Secured Obligations, if any, consisting
of
letters of credit, and the full and final termination of any commitment to
extend any financial accommodations under the Credit Agreement; (b) be binding
upon Pledgor and its successors and assigns; and (c) inure to the benefit of
Secured Party and its successors, transferees, and assigns. Upon the
indefeasible payment in full of the Secured Obligations, including the cash
collateralization, expiration, or cancellation of all Secured Obligations,
if
any, consisting of letters of credit, and the full and final termination of
any
commitment to extend any financial accommodations under the Credit Agreement,
the security interests granted herein shall automatically terminate and all
rights to the Collateral shall revert to Pledgor. Upon any such termination,
Secured Party will, at Pledgor's expense, execute and deliver to Pledgor such
documents as Pledgor shall reasonably request to evidence such termination.
Such
documents shall be prepared by Pledgor and shall be in form and substance
reasonably satisfactory to Secured Party.
19. Security
Interest Absolute.
To
the
maximum extent permitted by law, all rights of Secured Party, all security
interests hereunder, and all obligations of Pledgor hereunder, shall be absolute
and unconditional irrespective of:
(a) any
lack
of validity or enforceability of any of the Secured Obligations or any other
agreement or instrument relating thereto, including any of the Credit
Documents;
(b) any
change in the time, manner, or place of payment of, or in any other term of,
all
or any of the Secured Obligations, or any other amendment or waiver of or any
consent to any departure from any of the Credit Documents, or any other
agreement or instrument relating thereto;
(c) any
exchange, release, or non-perfection of any other collateral, or any release
or
amendment or waiver of or consent to departure from any guaranty for all or
any
of the Secured Obligations; or
(d) any
other
circumstances that might otherwise constitute a defense available to, or a
discharge of, Pledgor.
20. Headings.
Section
and subsection headings in this Agreement are included herein for convenience
of
reference only and shall not constitute a part of this Agreement or be given
any
substantive effect.
21. Severability.
In
case
any provision in or obligation under this Agreement shall be invalid, illegal
or
unenforceable in any jurisdiction, the validity, legality and enforceability
of
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.
22. Counterparts;
Telefacsimile Execution.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the same
Agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart
of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, or binding effect
hereof.
23. Waiver
of Marshaling.
Each
of
Pledgor and Secured Party acknowledges and agrees that in exercising any rights
under or with respect to the Collateral: (a) Secured Party is under no
obligation to marshal any Collateral; (b) may, in its absolute discretion,
realize upon the Collateral in any order and in any manner it so elects; and
(c)
may, in its absolute discretion, apply the proceeds of any or all of the
Collateral to the Secured Obligations in any order and in any manner it so
elects. Pledgor and Secured Party waive any right to require the marshaling
of
any of the Collateral.
24. Waiver
of Jury Trial.
PLEDGOR
AND SECURED PARTY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
OF
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. PLEDGOR
AND
SECURED PARTY REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED
AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
IN
WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to be
duly
executed and delivered by their officers thereunto duly authorized as of the
date first written above.
By:
/s/
Xxxx
Xxxxx
Name:
Xxxx
Xxxxx
Title:
Chief
Executive Officer
XXXX
XXXX
By:
/s/
Xxxx
Xxxx
Schedule
1 - Pledged Interests
Pledged
Interests: 129,000,000 shares of common stock of Phantom Entertainment,
Inc.
Name
of
Issuer: Phantom Entertainment, Inc.
Jurisdiction
of Organization: Delaware
Type
of
Interest: Shares of common stock
Number
of
Shares/Units (if applicable): see above
Certificate
Number(s):
Certificate
Number, Number of Shares, Date of Issuance
#6210-9
-
10,000,000
Date
of
Issuance: November 17, 2006
#6211-7
-
10,000,000
Date
of
Issuance: November 17, 2006
#6212-5
-
20,000,000
Date
of
Issuance: November 17, 2006
#6213-3
-
8,000,000
Date
of
Issuance: November 17, 2006
#6209-1
-
10,000,000
Date
of
Issuance: November 17, 2006
#6208-3
-
10,000,000
Date
of
Issuance: November 17, 2006
#6207-5
-
10,000,000
Date
of
Issuance: November 17, 2006
#6095-4
-
51,000,000
Date
of
Issuance: October 31, 2006
Percentage
of Outstanding Interests in Issuer: approximately ___%
Schedule
2 - Pledgor Information
For
Pledgor That Is a Registered Organization
Jurisdiction
of Organization: Phantom Entertainment, Inc. - Delaware
Type
of
Organization: for-profit corporation
Organizational
Tax ID Number (if any): 00-0000000
For
Pledgor That Is An Individual:
_________________________________________________
Address
of Principal Residence:
___________________________________________________
For
Pledgor That Is Neither a Registered Organization nor an
Individual:
Type
of
Organization:
___________________________________________________________
