COLLATERAL AGENT AGREEMENT
COLLATERAL AGENT AGREEMENT (this "Agreement") dated as of May ___, 2006
among ▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Collateral Agent"), the parties identified on Schedule
A hereto (each, individually, a "Lender" and collectively, the "Lenders"), who
hold or have subscribed for the Promissory Notes in the principal amounts set
forth on Schedule A hereto (collectively, the "Notes") issued or to be issued by
New World Entertainment Corp., a Nevada corporation (the "Company"). Certain
capitalized terms used herein, unless otherwise defined, shall have the
definitions given to them in the Loan Agreement, entered into on May 3, 2006
among the Company and the Lenders.
WHEREAS, the Lenders are making loans to the Company to be secured by
certain collateral; and
WHEREAS, it is desirable to provide for the orderly administration of such
collateral by requiring the Lender to appoint the Collateral Agent, and the
Collateral Agent has agreed to accept such appointment and to receive, hold and
deliver such collateral, all upon the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, it is desirable to allocate the enforcement of certain rights of
the Lenders under the Notes for the orderly administration thereof.
NOW, THEREFORE, in consideration of the premises set forth herein and for
other good and valuable consideration, the parties hereto agree as follows:
1. Collateral.
(a) Contemporaneously with the execution and delivery of this Agreement
by the Collateral Agent and the Lenders, the Collateral Agent has or will have
entered into a Security Agreement between the Collateral Agent, the Company,
________________________, _________________________ and
____________________________, who are shareholders of the Company (collectively
the "Shareholders") (the "Security Agreement"), regarding the grant of a
security interest in certain assets owned by the Shareholders (such assets are
referred to herein as the "Collateral") to the Collateral Agent, for the benefit
of the Lenders.
(b) Contemporaneously with the execution of the Loan Agreement, the
Company is issuing the Notes to the Lenders.
(b) For purposes solely of perfection of the security interests granted
to the Collateral Agent, as agent on behalf of the Lenders, and on its own
behalf under the Security Agreement, the Collateral Agent hereby acknowledges
that any Collateral held by the Collateral Agent is held for the benefit of the
Lenders in accordance with this Agreement and the Security Agreement. No
reference to the Security Agreement or any other instrument or document shall be
deemed to incorporate any term or provision thereof into this Agreement unless
expressly so provided.
(c) The Collateral Agent is to distribute any proceeds received from the
Collateral which are distributable to the Lenders solely to the Lenders.
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2. Appointment of the Collateral Agent.
The Lenders hereby appoint the Collateral Agent (and the Collateral Agent
hereby accepts such appointment) to take any action including, without
limitation, the registration of any Collateral in the name of the Collateral
Agent or its nominees prior to or during the continuance of an Event of Default
(as defined in the Security Agreement), the exercise of voting rights upon the
occurrence and during the continuance of an Event of Default, the application of
any cash collateral received by the Collateral Agent to the payment of the
Obligations (as defined in the Security Agreement), the exercise of any remedies
given to the Collateral Agent pursuant to the Security Agreement and the
exercise of any authority pursuant to the appointment of the Collateral Agent as
an attorney-in-fact pursuant to the Security Agreement that the Collateral Agent
deems necessary or proper for the administration of the Collateral pursuant to
the Security Agreement. Upon disposition of the Collateral in accordance with
the Security Agreement, the Collateral Agent shall promptly distribute any cash
or Collateral in accordance with Section 10.4 of the Security Agreement.
3. Action by the Majority in Interest.
(a) Certain Actions. Each of the Lenders covenants and agrees that only
a Majority in Interest shall have the right, but not the obligation, to
undertake the following actions (it being expressly understood that less than a
Majority in Interest hereby expressly waive the following rights that they may
otherwise have under the Notes, but only insofar as such waiver affects their
right to receive proceeds from the Collateral):
(i) Acceleration. If an Event of Default occurs, after the applicable
cure period, if any, a Majority in Interest may, on behalf of all the Lenders,
instruct the Collateral Agent to provide to The Company or any one or more of
the Shareholders notice to cure such default and/or declare the unpaid principal
amount of the Notes to be due and payable, together with any and all accrued
interest thereon and all costs payable pursuant to such Notes;
(ii) Enforcement. Upon the occurrence of any Event of Default after
the applicable cure period, if any, a Majority in Interest may instruct the
Collateral Agent to proceed to protect, exercise and enforce, on behalf of all
the Lenders, their rights and remedies under the Notes against The Company and
the Shareholders, and such other rights and remedies as are provided by law or
equity; and
(iii) Waiver of Past Defaults. A Majority in Interest may instruct the
Collateral Agent to waive any Event of Default by written notice to The Company
and the Shareholders, and the other Lenders.
(iv) Amendment. A Majority in Interest may instruct the Collateral
Agent to waive, amend, supplement or modify any term, condition or other
provision in the Notes or Security Agreement in accordance with the terms of the
Notes or Security Agreement so long as such waiver, amendment, supplement or
modification is made with respect to all of the Notes and with the same force
and effect with respect to each of the Notes.
(v) A Majority in Interest may consent to the release from Security
Interest of the Collateral.
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(b) Permitted Subordination. A Majority in Interest may instruct the
Collateral Agent to agree to subordinate any Collateral to any claim and may
enter into any agreement with the Company and Shareholders to evidence such
subordination; provided, however, that subsequent to any such subordination,
each Note shall remain pari passu with the other Notes held among the Lenders.
(c) Further Actions. A Majority in Interest may instruct the Collateral
Agent to take any action that it may take under this Agreement by instructing
the Collateral Agent in writing to take such action on behalf of all the
Lenders.
(d) Majority in Interest. For so long as any obligations remain
outstanding on the Notes, Majority in Interest shall mean Lenders who hold not
less than seventy-five percent (75%) of the Obligations outstanding on the
Notes.
4. Power of Attorney.
(a) To effectuate the terms and provisions hereof, the Lenders hereby
appoint the Collateral Agent as their attorney-in-fact (and the Collateral Agent
hereby accepts such appointment) for the purpose of carrying out the provisions
of this Agreement including, without limitation, taking any action on behalf of,
or at the instruction of, the Majority in Interest at the written direction of
the Majority in Interest and executing any consent authorized pursuant to this
Agreement and taking any action and executing any instrument that the Collateral
Agent may deem necessary or advisable (and lawful) to accomplish the purposes
hereof.
(b) All acts done under the foregoing authorization are hereby ratified
and approved and neither the Collateral Agent nor any designee nor agent thereof
shall be liable for any acts of commission or omission, for any error of
judgment, for any mistake of fact or law except for acts of gross negligence or
willful misconduct.
(c) This power of attorney, being coupled with an interest, is
irrevocable while this Agreement remains in effect.
5. Expenses of the Collateral Agent. The Lenders shall pay any and all
costs and expenses incurred by the Collateral Agent, all waivers, releases,
discharges, satisfactions, modifications and amendments of this Agreement, the
administration and holding of the Collateral, insurance expenses, and the
enforcement, protection and adjudication of the parties' rights hereunder by the
Collateral Agent, including, without limitation, the reasonable disbursements,
expenses and fees of the attorneys the Collateral Agent may retain, if any, each
of the foregoing in proportion to their holdings of the Notes.
6. Reliance on Documents and Experts. The Collateral Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, statement,
paper, document, writing or communication (which may be by telegram, cable,
telex, telecopier, or telephone) reasonably believed by it to be genuine and to
have been signed, sent or made by the proper person or persons, and upon
opinions and advice of its own legal counsel, independent public accountants and
other experts selected by the Collateral Agent.
7. Duties of the Collateral Agent; Standard of Care.
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(a) The Collateral Agent's only duties are those expressly set forth in
this Agreement, and the Collateral Agent hereby is authorized to perform those
duties in accordance with commercially reasonable practices. The Collateral
Agent may exercise or otherwise enforce any of its rights, powers, privileges,
remedies and interests under this Agreement and applicable law or perform any of
its duties under this Agreement by or through its officers, employees,
attorneys, or agents.
(b) The Collateral Agent shall act in good faith and with that degree of
care that an ordinarily prudent person in a like position would use under
similar circumstances.
(c) Any funds held by the Collateral Agent hereunder need not be
segregated from other funds except to the extent required by law. The Collateral
Agent shall be under no liability for interest on any funds received by it
hereunder.
8. Resignation. The Collateral Agent may resign and be discharged of its
duties hereunder at any time by giving written notice of such resignation to the
other parties hereto, stating the date such resignation is to take effect.
Within 15 days of the giving of such notice, a successor collateral agent shall
be appointed by the Majority in Interest; provided, however, that if the Lenders
are unable so to agree upon a successor within such time period, the successor
collateral agent may be a person designated by the Collateral Agent, and any and
all fees of such successor collateral agent shall be the joint and several
obligation of the Lenders. The Collateral Agent shall continue to serve until
the effective date of the resignation or until its successor accepts the
appointment and receives the Collateral held by the Collateral Agent but shall
not be obligated to take any action hereunder. The Collateral Agent may deposit
any Collateral with the Supreme Court of the State of New York for New York
County or any such other court in New York State that accepts such Collateral.
9. Exculpation. The Collateral Agent and its officers, employees, attorneys
and agents, shall not incur any liability whatsoever for the holding or delivery
of documents or the taking of any other action in accordance with the terms and
provisions of this Agreement, for any mistake or error in judgment, for
compliance with any applicable law or any attachment, order or other directive
of any court or other authority (irrespective of any conflicting term or
provision of this Agreement), or for any act or omission of any other person
engaged by the Collateral Agent in connection with this Agreement, unless
occasioned by the exculpated person's own gross negligence or willful
misconduct; and each party hereto hereby waives any and all claims and actions
whatsoever against the Collateral Agent and its officers, employees, attorneys
and agents, arising out of or related directly or indirectly to any or all of
the foregoing acts, omissions and circumstances.
10. Indemnification. The Lenders hereby agrees to indemnify, reimburse and
hold harmless the Collateral Agent and its directors, officers, employees,
attorneys and agents, jointly and severally, from and against any and all
claims, liabilities, losses and expenses that may be imposed upon, incurred by,
or asserted against any of them, arising out of or related directly or
indirectly to this Agreement or the Collateral, except such as are occasioned by
the indemnified person's own gross negligence or willful misconduct.
11. Miscellaneous.
(a) Rights and Remedies Not Waived. No act, omission or delay by the
Collateral Agent shall constitute a waiver of the Collateral Agent's rights and
remedies hereunder or otherwise. No single or partial waiver by the Collateral
Agent of any default hereunder or right or remedy that 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.
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(b) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts or choice of law (or any other law that would make any substantive
laws of any state other than the State of New York applicable hereto).
(c) Waiver of Jury Trial and Setoff; Consent to Jurisdiction; Etc.
(i) In any litigation in any court with respect to, in connection
with, or arising out of this Agreement or any instrument or document delivered
pursuant to this Agreement, or the validity, protection, interpretation,
collection or enforcement hereof or thereof, or any other claim or dispute
howsoever arising, between the Collateral Agent and the Lenders or any Lender,
then each Lender, to the fullest extent it may legally do so, (i) waives the
right to interpose any setoff, recoupment, counterclaim or cross-claim in
connection with any such litigation, irrespective of the nature of such setoff,
recoupment, counterclaim or cross-claim, unless such setoff, recoupment,
counterclaim or cross-claim could not, by reason of any applicable federal or
state procedural laws, be interposed, pleaded or alleged in any other action;
and (ii) WAIVES TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION AND ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH LENDER AGREES THAT THIS SECTION 11(c) IS A
SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND ACKNOWLEDGES THAT THE
COLLATERAL AGENT WOULD NOT ENTER THIS AGREEMENT IF THIS SECTION 11(c) WERE NOT
PART OF THIS AGREEMENT.
(ii) Each Lender irrevocably consents to the exclusive jurisdiction of
any State or Federal Court located within the County of New York, State of New
York, in connection with any action or proceeding arising out of or relating to
this Agreement or any document or instrument delivered pursuant to this
Agreement or otherwise. In any such litigation, each Lender waives, to the
fullest extent it may effectively do so, personal service of any summons,
complaint or other process and agree that the service thereof may be made by
certified or registered mail directed to such Lender at its address for notice
determined in accordance with Section 11(e) hereof. Each Lender hereby waives,
to the fullest extent it may effectively do so, the defenses of forum non
conveniens and improper venue.
(d) Admissibility of this Agreement. Each of the Lenders agrees that any
copy of this Agreement signed by it and transmitted by telecopier for delivery
to the Collateral Agent shall be admissible in evidence as the original itself
in any judicial or administrative proceeding, whether or not the original is in
existence.
(e) Address for Notices. Any notice or other communication under the
provisions of this Agreement shall be given in writing and delivered in person,
by reputable overnight courier or delivery service, by facsimile machine
(receipt confirmed) with a copy sent by first class mail on the date of
transmissions, or by registered or certified mail, return receipt requested,
directed to its addresses set forth below (or to any new address of which either
party hereto shall have informed the other by the giving of notice in the manner
provided herein):
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In the case of the Collateral Agent, to it at:
▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________
____________________________
____________________________
Telephone:
Fax:
In the case of the Lenders, to:
the addresses and telecopier numbers
set forth on Schedule A hereto.
In the case of the Company, to:
New World Entertainment Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (____) ___________________
With a copy to:
Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(f) Amendments and Modification; Additional Lender. No provision hereof
shall be modified, altered, waived or limited except by written instrument
expressly referring to this Agreement and to such provision, and executed by the
parties hereto. Any transferee of a Note who acquires a Note after the date
hereof may become a party hereto by signing the signature page and sending an
executed copy of this Agreement to the Collateral Agent.
(g) Fee. Upon the occurrence of an Event of Default, the Lenders
collectively shall pay the Collateral Agent the sum of $5,000 to apply against
an hourly fee of $350 to be paid to the Collateral Agent by the Lenders for
services rendered pursuant to this Agreement. All payments due to the Collateral
Agent under this Agreement including reimbursements must be paid when billed.
The Collateral Agent may refuse to act on behalf of or make a distribution to
any Lender who is not current in payments to the Collateral Agent. Payments
required pursuant to this Agreement shall be pari passu to the Lenders'
interests in the Notes. The Collateral Agent is hereby authorized to deduct any
sums due the Collateral Agent from Collateral in the Collateral Agent's
possession.
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(h) Counterparts. This Agreement may be executed by the parties hereto
individually or in any combination, in one or more counterparts, and by
facsimile signature and transmission, each of which shall be an original and all
of which shall together constitute one and the same agreement.
(i) Successors and Assigns. Whenever in this Agreement reference is made
to any party, such reference shall be deemed to include the successors, assigns,
heirs and legal representatives of such party. No party hereto may transfer any
rights under this Agreement, unless the transferee agrees to be bound by, and
comply with all of the terms and provisions of this Agreement, as if an original
signatory hereto on the date hereof.
(j) Captions: Certain Definitions. The captions of the various sections
and paragraphs of this Agreement have been inserted only for the purposes of
convenience; such captions are not a part of this Agreement and shall not be
deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of this Agreement. As used in this Agreement the term "person" shall
mean and include an individual, a partnership, a joint venture, a corporation, a
limited liability company, a trust, an unincorporated organization and a
government or any department or agency thereof.
(k) Severability. In the event that any term or provision of this
Agreement shall be finally determined to be superseded, invalid, illegal or
otherwise unenforceable pursuant to applicable law by an authority having
jurisdiction and venue, that determination shall not impair or otherwise affect
the validity, legality or enforceability (i) by or before that authority of the
remaining terms and provisions of this Agreement, which shall be enforced as if
the unenforceable term or provision were deleted, or (ii) by or before any other
authority of any of the terms and provisions of this Agreement.
(l) Entire Agreement. This Agreement contains the entire agreement of
the parties and supersedes all other agreements and understandings, oral or
written, with respect to the matters contained herein.
(m) Schedules. The Collateral Agent is authorized to annex hereto any
schedules referred to herein.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Collateral Agent
Agreement to be signed, by their respective duly authorized officers or
directly, as of the date first written above.
Global Developments Inc. - Lender
By: _________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
555 Holdings LLC - Lender
By: _________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: _________________
Collateral Agent
_____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
Acknowledged:
New World Entertainment Corp.
By:__________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Director
_____________________________________
[Name of Shareholder] - Shareholder
_____________________________________
[Name of Shareholder] - Shareholder
_____________________________________
[Name of Shareholder] - Shareholder
This Collateral Agent Agreement may be signed by facsimile signature and
delivered by confirmed facsimile transmission.
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SCHEDULE A TO COLLATERAL AGENT AGREEMENT
---------------------------------- ------------------------------------------
LENDER PRINCIPAL AMOUNT OF THE PROMISSORY NOTE
---------------------------------- ------------------------------------------
Global Developments Inc. $2,000,000.00
c/o ▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------- ------------------------------------------
555 Holdings LLC $1,250,000.00
c/o ▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------- ------------------------------------------
TOTAL: $3,250,000.00
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