GUARANTY AND PLEDGE AGREEMENT
GUARANTY AND PLEDGE AGREEMENT (this "Agreement"), dated as of September
10, 2004, among ROO Group, Inc., a Delaware corporation (the "Company"), Xxxxxx
Xxxxx (the "Pledgor"), and the pledgees signatory hereto and their respective
endorsees, transferees and assigns (collectively, the "Pledgees").
W I T N E S S E T H:
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WHEREAS, pursuant to a Securities Purchase Agreement, dated the date
hereof, between Company and the Pledgees (the "Purchase Agreement"), Company has
agreed to issue to the Pledgees and the Pledgees have agreed to purchase from
Company certain of Company's 8% Callable Secured Convertible Notes, due two
years from the date of issue (the "Notes"), which are convertible into shares of
Company's Common Stock, par value $.0001 per share (the "Common Stock"). In
connection therewith, Company shall issue the Pledgees certain Common Stock
purchase warrants (the "Warrants"); and
WHEREAS, as a material inducement to the Pledgees to enter into the
Purchase Agreement, the Pledgees have required and the Pledgor has agreed (i) to
unconditionally guarantee the timely and full satisfaction of all obligations of
the Company, whether matured or unmatured, now or hereafter existing or created
and becoming due and payable (the "Obligations") to the Pledgees, their
successors, endorsees, transferees or assigns under the Transaction Documents
(as defined in the Purchase Agreement) to the extent of the Collateral (as
defined in Section 5 hereof), and (ii) to grant to the Pledgees, their
successors, endorsees, transferees or assigns a security interest in the number
of shares of Common Stock currently owned by the Pledgor as set forth below the
Pledgor's signature on the signature page hereto (collectively, the "Shares"),
as collateral security for Obligations. Terms used and not defined herein shall
have the meaning ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual
covenants contained herein, the parties hereby agree as follows:
1. Guaranty. To the extent of the Collateral, the Pledgor hereby
absolutely, unconditionally and irrevocably guarantees to the Pledgees, their
successors, endorsees, transferees and assigns the due and punctual performance
and payment of the Obligations owing to the Pledgees, their successors,
endorsees, transferees or assigns when due, all at the time and place and in the
amount and manner prescribed in, and otherwise in accordance with, the
Transaction Documents, regardless of any defense or set-off counterclaim which
the Company or any other person may have or assert, and regardless of whether or
not the Pledgees or anyone on behalf of the Pledgees shall have instituted any
suit, action or proceeding or exhausted its remedies or taken any steps to
enforce any rights against the Company or any other person to compel any such
performance or observance or to collect all or part of any such amount, either
pursuant to the provisions of the Transaction Documents or at law or in equity,
and regardless of any other condition or contingency. The Pledgor shall have no
obligation whatsoever to the Pledgees beyond the Collateral pledged for the
Obligations set forth herein.
2. Waiver of Demand. The Pledgor hereby unconditionally: (i) waives any
requirement that the Pledgees, in the event of a breach in any material respect
by the Company of any of its representations or warranties in the Transaction
Documents, first make demand upon, or seek to enforce remedies against, the
Company or any other person before demanding payment of enforcement hereunder;
(ii) covenants that this Agreement will not be discharged except by complete
performance of all the Obligations to the extent of the Collateral; (iii) agrees
that this Agreement shall remain in full force and effect without regard to, and
shall not be affected or impaired, without limitation, by, any invalidity,
irregularity or unenforceability in whole or in part of the Transaction
Documents or any limitation on the liability of the Company thereunder, or any
limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever; and (iv) waives
diligence, presentment and protest with respect to, and notice of default in the
performance or payment of any Obligation by the Company under or in connection
with the Transaction Documents.
3. Release. The obligations, covenants, agreements and duties of the
Pledgor hereunder shall not be released, affected or impaired by any assignment
or transfer, in whole or in part, of the Transaction Documents or any
Obligation, although made without notice to or the consent of the Pledgor, or
any waiver by the Pledgees, or by any other person, of the performance or
observance by the Company or the Pledgor of any of the agreements, covenants,
terms or conditions contained in the Transaction Documents, or any indulgence in
or the extension of the time or renewal thereof, or the modification or
amendment (whether material or otherwise), or the voluntary or involuntary
liquidation, sale or other disposition of all or any portion of the stock or
assets of the Company or the Pledgor, or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings, affecting the Company
or the Pledgor or any assets of the Company or the Pledgor, or the release of
any proper from any security for any Obligation, or the impairment of any such
property or security, or the release or discharge of the Company or the Pledgor
from the performance or observance of any agreement, covenant, term or condition
contained in or arising out of the Transaction Documents by operation of law, or
the merger or consolidation of the Company, or any other cause, whether similar
or dissimilar to the foregoing.
4. Subrogation.
(a) Unless and until complete performance of all the Obligations to
the extent of the Collateral, the Pledgor shall not be entitled to exercise any
right of subrogation to any of the rights of the Pledgees against the Company or
any collateral security or guaranty held by the Pledgees for the payment or
performance of the Obligations, nor shall the Pledgor seek any reimbursement
from the Company in respect of payments made by the Pledgor hereunder.
(b) In the extent that the Pledgor shall become obligated to perform
or pay any sums hereunder, or in the event that for any reason the Company is
now or shall hereafter become indebted to the Pledgor, the amount of such sum
shall at all times be subordinate as to lien, time of payment and in all other
respects, to the amounts owing to the Pledgees under the Transaction Documents
and the Pledgor shall not enforce or receive payment thereof until all
Obligations due to the Pledgees under the Transaction have been performed or
paid. Nothing herein contained is intended or shall be construed to give to the
Pledgor any right of subrogation in or under the Transaction Documents, or any
right to participate in any way therein, or in any right, title or interest in
the assets of the Pledgees.
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5. Security. As collateral security for the punctual payment and
performance, when due, by the Company of all the Obligations, the Pledgor hereby
pledges with, hypothecates, transfers and assigns to the Pledgees all of the
Shares and all proceeds, shares and other securities received, receivable or
otherwise distributed in respect of or in exchange for the Shares, including,
without limitation, any shares and other securities into which such Shares may
be convertible or exchangeable (collectively, the "Additional Collateral" and
together with the Shares, the "Collateral"). Within ten (10) business days of
the date of this Agreement, the Pledgor shall deliver to the Pledgees the
certificate(s) representing the Shares, stamped with a bank medallion guarantee,
along with a stock transfer power duly executed in blank by the Pledgor, to be
held by the Pledgees as security. Any Collateral received by the Pledgor on or
after the date hereof shall be immediately delivered to the Pledgees together
with any executed stock powers or other transfer documents requested by the
Pledgees, which request may be made at any time prior to the date when the
Obligations shall have been paid and otherwise satisfied in full.
6. Voting Power, Dividends, Etc. and other Agreements.
(a) Unless and until an Event of Default (as set forth in Section 7
hereof) has occurred, the Pledgor shall be entitled to:
(i) Exercise all voting and/or consensual powers pertaining to
the Collateral, or any part thereof, for all purposes;
(ii) Receive and retain dividends paid with respect to the
Collateral; and
(iii) Receive the benefits of any income tax deductions
available to the Pledgor as a shareholder of the Company.
(b) The Pledgor agrees that it will not sell, assign, transfer,
pledge, hypothecate, encumber or otherwise dispose of the Collateral.
(c) The Pledgor and the Company jointly and severally agree to pay
all costs including all reasonable attorneys' fees and disbursements incurred by
the Pledgees in enforcing this Agreement in accordance with its terms.
7. Default and Remedies.
(a) For the purposes of this Agreement, "Event of Default" shall
mean:
(i) default in or under any of the Obligations after the
expiration, without cure, of any applicable cure period;
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(ii) a breach in any material respect by the Company of any of
its representations or warranties in the Transaction Documents; or
(iii) a breach in any material respect by the Pledgor of any
of its representations or warranties in this Agreement.
(b) the Pledgees shall have the following rights upon any Event of
Default:
(i) the rights and remedies provided by the Uniform Commercial
Code as adopted by the State of New York (the "UCC") (as said law may at any
time be amended);
(ii) the right to receive and retain all dividends, payments
and other distributions of any kind upon any or all of the Collateral;
(iii) the right to cause any or all of the Collateral to be
transferred to its own name or to the name of its designee and have such
transfer recorded in any place or places deemed appropriate by the Pledgees; and
(iv) the right to sell, at a public or private sale, the
Collateral or any part thereof for cash, upon credit or for future delivery, and
at such price or prices in accordance with the UCC (as such law may be amended
from time to time). Upon any such sale the Pledgees shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral so sold.
The Pledgees shall give the Pledgor not less than ten (10) days' written notice
of its intention to make any such sale. Any such sale, shall be held at such
time or times during ordinary business hours and at such place or places as the
Pledgees may fix in the notice of such sale. The Pledgees may adjourn or cancel
any sale or cause the same to be adjourned from time to time by announcement at
the time and place fixed for the sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral upon terms calling for payments in the future, any
Collateral so sold may be retained by the Pledgees until the selling price is
paid by the purchaser thereof, but the Pledgees shall incur no liability in the
case of the failure of such purchaser to take up and pay for the Collateral so
sold and, in the case of such failure, such Collateral may again be sold upon
like notice. The Pledgees, however, instead of exercising the power of sale
herein conferred upon them, may proceed by a suit or suits at law or in equity
to foreclose the security interest and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction, the Pledgor having been given due notice of all such action. The
Pledgees shall incur no liability as a result of a sale of the Collateral or any
part thereof. All proceeds of any such sale, after deducting the reasonable
expenses and reasonable attorneys' fees incurred in connection with such sale,
shall be applied in reduction of the Obligations, and the remainder, if any,
shall be paid to the Pledgor.
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8. Application of Proceeds; Release. The proceeds of any sale or
enforcement of or against all or any part of the Collateral, and any other cash
or collateral at the time held by the Pledgees hereunder, shall be applied by
the Pledgees first to the payment of the reasonable costs of any such sale or
enforcement, then to reimburse the Pledgees for any damages, costs or expenses
incurred by the Pledgees as a result of an Event of Default, then to the payment
of the principal amount or stated valued (as applicable) of, and interest or
dividends (as applicable) and any other payments due in respect of, the
Obligations. The remainder, if any, shall be paid to the Pledgor. As used in
this Agreement, "proceeds" shall mean cash, securities and other property
realized in respect of, and distributions in kind of, the Collateral, including
any thereof received under any reorganization, liquidation or adjustment of debt
of any issuer of securities included in the Collateral.
9. Representations and Warranties.
(a) The Pledgor hereby represents and warrants to the Pledgees that:
(i) the Pledgor has full power and authority and legal right
to pledge the Collateral to the Pledgees pursuant to this Agreement and this
Agreement constitutes a legal, valid and binding obligation of the Pledgor,
enforceable in accordance with its terms.
(ii) the execution, delivery and performance of this Agreement
and other instruments contemplated herein will not violate any provision of any
order or decree of any court or governmental instrumentality or of any mortgage,
indenture, contract or other agreement to which the Pledgor is a party or by
which the Pledgor and the Collateral may be bound, and will not result in the
creation or imposition of any lien, charge or encumbrance on, or security
interest in, any of the Pledgor's properties pursuant to the provisions of such
mortgage, indenture, contract or other agreement.
(iii) the Pledgor is the sole record and beneficial owner of
all of the Shares; and
(iv) the Pledgor owns the Collateral free and clear of all
Liens.
(b) The Company represents and warrants to the Pledgees that:
(i) it has no knowledge that any of the representations or
warranties of the Pledgor herein are incorrect or false in any material respect;
(ii) all of the Shares were validly issued, fully paid and non-assessable; and
(iii) the Pledgor is the record holder of the Shares.
10. No Waiver; No Election of Remedies. No failure on the part of the
Pledgees to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise by the Pledgees of any right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein provided are cumulative and are not exclusive of any
remedies provided by law. In addition, the exercise of any right or remedy of
the Pledgees at law or equity or under this Agreement or any of the documents
shall not be deemed to be an election of Pledgee's rights or remedies under such
documents or at law or equity.
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11. Termination. This Agreement shall terminate on the date on which all
Obligations have been performed, satisfied, paid or discharged in full.
12. Further Assurances. The parties hereto agree that, from time to time
upon the written request of any party hereto, they will execute and deliver such
further documents and do such other acts and things as such party may reasonably
request in order fully to effect the purposes of this Agreement. The Pledgees
acknowledge that they are aware that Pledgor shall have no obligations
whatsoever to the Pledgees beyond the Collateral pledged for the Obligations set
forth herein, and no request for further assurance may or shall increase such
Obligations.
13. Miscellaneous.
(a) Modification. This Agreement contains the entire understanding
between the parties with respect to the subject matter hereof and specifically
incorporates all prior oral and written agreements relating to the subject
matter hereof. No portion or provision of this Agreement may be changed,
modified, amended, waived, supplemented, discharged, canceled or terminated
orally or by any course of dealing, or in any manner other than by an agreement
in writing, signed by the party to be charged.
(b) Notice. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 6:30 p.m. (New
York City time) on a Business Day (as defined in the Purchase Agreement), (ii)
the Business Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified in this
Agreement later than 6:30 p.m. (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the Business Day following
the date of mailing, if sent by nationally recognized overnight courier
services, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Company: ROO Group, Inc.
00 Xxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
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With copies to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgor: Xxxxxx Xxxxx
c/o ROO Group, Inc.
00 Xxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Pledgees: AJW Partners, LLC
AJW Offshore, Ltd.
AJW Qualified Partners, LLC
New Millennium Capital Partners II, LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attn: Xxxxx X. Xxxxxxxx
With copies to: Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xx.
Xxxxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esquire
(c) Invalidity. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible.
(d) Benefit of Agreement. This Agreement shall be binding upon and
inure to the parties hereto and their respective successors and assigns.
(e) Mutual Agreement. This Agreement embodies the arm's length
negotiation and mutual agreement between the parties hereto and shall not be
construed against either party as having been drafted by it.
(f) New York Law to Govern. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to the principals of conflicts of law thereof. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
Federal courts sitting in the city of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court or that
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty and
Pledge Agreement to be duly executed by their respective authorized persons as
of the date first indicated above.
ROO GROUP, INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Xxxxxx Xxxxx
Chief Executive Officer
PLEDGEES:
AJW PARTNERS, LLC
By: SMS Group, LLC
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx
Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx
Manager
[Signatures Continued on Following Page]
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PLEDGOR:
/s/ Xxxxxx Xxxxx
----------------------------------------------------
Xxxxxx Xxxxx
Number of Shares subject to this pledge: 36,000,000
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Date such Shares were acquired: December 12, 2003
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