ADDENDUM TO ASSIGNMENT OF SECURED SUBORDINATED PROMISSORY NOTE
Exhibit
10.2
This
Addendum to Assignment of Secured Subordinated Promissory Note (this “Addendum”)
is entered into as of January 31, 2007, by and among CEDAR BOULEVARD LEASE
FUNDING LLC (“Cedar”), VoIP, Inc., a Delaware corporation (“VoIP”), Caerus,
Inc., a Delaware corporation (“Caerus”), Volo Communications, Inc., a Delaware
corporation (“Volo”), Caerus Networks, Inc., a Delaware corporation (“Caerus
Networks”), Caerus Billing, Inc., a Delaware corporation (“Caerus Billing”),
Volo Communications of Arizona, Inc., a Delaware corporation (“Volo Arizona”),
Volo Communications of California, Inc., a Delaware corporation (“Volo
California”), Volo Communications of Colorado, Inc., a Delaware corporation
(“Volo Colorado”), Volo Communications of Connecticut, Inc., a Delaware
corporation (“Volo Connecticut”), Volo Communications of Delaware, Inc., a
Delaware corporation (“Volo Delaware”), Volo Communications of Florida, Inc., a
Delaware corporation (“Volo Florida”), Volo Communications of Georgia, Inc., a
Delaware corporation (“Volo Georgia”), Volo Communications of Idaho, Inc., a
Delaware corporation (“Volo Idaho”), Volo Communications of Illinois, Inc., a
Delaware corporation (“Volo Illinois”), Volo Communications of Indiana, Inc., a
Delaware corporation (“Volo Indiana”), Volo Communications of Maryland, Inc., a
Delaware corporation (“Volo Maryland”), Volo Communications of Massachusetts,
Inc., a Delaware corporation (“Volo Massachusetts”), Volo Communications of
Michigan, Inc., a Delaware corporation (“Volo Michigan”), Volo Communications of
Nevada, Inc., a Delaware corporation (“Volo Nevada”), Volo Communications of New
Hampshire, Inc., a Delaware corporation (“Volo New Hampshire”), Volo
Communications of New Jersey, Inc., a Delaware corporation (“Volo New Jersey”),
Volo Communications of New York, Inc., a Delaware corporation (“Volo New York”),
Volo Communications of North Carolina, Inc., a Delaware corporation (“Volo North
Carolina”), Volo Communications of Ohio, Inc., a Delaware corporation (“Volo
Ohio”), Volo Communications of Pennsylvania, Inc., a Delaware corporation (“Volo
Pennsylvania”), Volo Communications of Rhode Island, Inc., a Delaware
corporation (“Volo Rhode Island”), Volo Communications of Texas, Inc., a
Delaware corporation (“Volo Texas”), Volo Communications of Vermont, Inc., a
Delaware corporation (“Volo Vermont”), Volo Communications of Virginia, Inc., a
Delaware corporation (“Volo Virginia”), Volo Communications of Washington, Inc.,
a Delaware corporation (“Volo Washington”), Volo Communications of Wisconsin,
Inc., a Delaware corporation (“Volo Wisconsin”) and Volo Communications of South
Carolina, Inc., a Delaware corporation (“Volo South Carolina”, and together with
VoIP, Caerus, Volo, Caerus Networks, Caerus Billing, Volo Arizona, Volo
California, Volo Colorado, Volo Connecticut, Volo Delaware, Volo Florida, Volo
Georgia, Volo Idaho, Volo Illinois, Volo Indiana, Volo Maryland, Volo
Massachusetts, Volo Michigan, Volo Nevada, Volo New Hampshire, Volo New Jersey,
Volo New York, Volo North Carolina, Volo Ohio, Volo Pennsylvania, Volo Rhode
Island, Volo Texas, Volo Vermont, Volo Virginia, Volo Washington and Volo
Wisconsin, the “Borrower”), and the parties set forth on the signature pages
hereto as subscribers (collectively, the “Buyer”), and is an integral part and
supplements the terms and conditions of that certain Assignment of Secured
Subordinated Promissory Note issued by Borrower to Cedar on June 1, 2004, in
the
principal amount of $7,000,000 issued by Borrower to Cedar
(the
“Debenture”).
NOW,
THEREFORE, for good and valuable consideration, Cedar, Borrower and Buyer agree
as follows:
1.
Purchase and Sale. Subject to the terms and conditions of this Addendum, Buyer
agrees to purchase from Cedar and Cedar agrees to sell to Buyer, all outstanding
principal, interest and other sums due and owing under the Debenture
(the
“Assigned Loan”) and all right, title and interest of Cedar as "Lender" under
the
Debentures
and other agreements and instruments identified on Exhibit A hereto (the
“Assigned
Loan Documents”). The sale, transfer and assignment of the Assigned Loans and
Assigned Loan Documents is and shall be without recourse and without any
representation or warranty by Cedar of any kind or nature whatsoever, expressed
or implied, except only such representations and warranties of Cedar as are
expressly and specifically provided in
Section
7 of
this
Addendum. Buyer acknowledges and agrees that Buyer shall have no right to use
the name or other business identification of Cedar. Notwithstanding anything
to
the contrary, Cedar is not selling to Buyer and Buyer is not acquiring any
right, title or interest in any payments, cash, cash equivalents or uncashed
checks received by Cedar prior to January 31, 2007 and any right, title and
interest in any equity securities of the Borrower or its respective affiliates
including, but not limited to rights under that certain Amended and Restated
Warrant Agreement dated June 1, 2004 by and between Borrower and Cedar; 2.
Warrant Agreement dated as of October 1, 2004, by and between Borrower and
Cedar
granting Cedar the right to Purchase 383,010 shares of Preferred Stock of
Borrower, 3. Stock Purchase Warrant dated June 1, 2005 by VOIP, Inc., and 4.
Stock Purchase Warrant dated January 5, 2006 by VOIP, Inc. ("Excluded Assets").
1
2. Consideration.
The consideration to be given by Buyer to Cedar for the Assigned Loans
and
the
Assigned Loan Documents shall
be
$1,600,000.00 (the
“Purchase Price”),
and
Borrower shall pay an additional $200,000 directly to Cedar (the “Borrower
Payment”).
3. Closing.
The consummation of the sale and purchase pursuant to this Addendum (the
“Closing”) is contemplated to occur on or before January 31, 2007 (the “Closing
Date”) upon satisfaction of all conditions to Closing. As a condition precedent
to the Closing, Buyer
agrees to wire transfer to Cedar the Purchase Price on or before the Closing
Date and to deliver to Cedar the Buyer’s Closing Items (hereinafter
defined),
and
Borrower agrees to wire transfer to Cedar the Borrower Payment in
accordance with wiring instructions set forth in Schedule 1 attached hereto.
Upon confirmation of receipt of the Purchase Price and Borrower Payment, Cedar
will deliver Cedar’s Closing Documents (hereinafter defined) to Buyer. Cedar may
unilaterally terminate this Addendum if
either
(a) the Borrower Payment is not made by the Closing Date, (b) the Purchase
Price
is not paid by the Closing Date, or (c) the Closing has not occurred by the
Closing Date.
(a) Buyer
shall pay the Purchase Price by wire transfer in immediately available United
States funds to the following account (the “Seller Account”):
[Wire
Instructions]
4. Purchase
and Sale.
(a) Effective
upon the Closing, and subject to and conditioned upon the terms, covenants,
limitations, and conditions contained herein, Cedar hereby sells, transfers,
and
assigns to Buyer, and Buyer hereby purchases and accepts from Cedar, in each
case on and as of the Closing Date, all of Cedar’s right, title and interest,
in, to, and under the Assigned Loans and the Assigned Loan Documents, other
than
any right, title or interest in the Excluded Assets.
(b) Buyer
shall assume, at the Closing, all of the obligations of Cedar under or in
connection with the Assigned Loans or the Assigned Loan Documents, of every
kind
or nature whatsoever, existing on the date of Closing or arising thereafter.
With the exception of the Borrower Payment, if Cedar receives any payments
from
the
Borrower with
respect to the Assigned Loan after January 31, 2007, Cedar will forward those
payments to Buyer.
5. Cedar’s
Closing Documents. In connection with the Closing, Cedar shall deliver to Buyer,
as provided in Section 3, the following documents (collectively “Cedar’s Closing
Documents”):
(a) original
Note and copies of the Assigned
Loan Documents identified on Exhibit A hereto.
(b) An
Assignment and Assumption of Assigned Loan Documents, in the form attached
hereto as Exhibit B,
duly
executed by Cedar, assigning and transferring to Buyer all of Cedar’s rights and
interests in and to the Assigned Loan Documents, and assumption of the same
by
Buyer.
(c) Written
Notice of Assignment of the Assigned Loans, in the form attached hereto as
Exhibit C,
duly
executed by Cedar instructing Borrower to remit all payments to Buyer or its
agents.
(d) Any
other
documents reasonably required by Buyer to effect the transactions contemplated
hereunder.
6. Buyer’s
Closing Obligations. In connection with the Closing, Buyer shall deliver to
Cedar, the following (collectively “Buyer’s Closing Items”):
(a) The
Assignment and Assumption of Assigned Loan Documents, in the form attached
hereto as Exhibit B, duly executed by Buyer.
(b) The
Acknowledgement, Agreement and Consent, attached as a signature page
hereto.
2
7. Representations
and Warranties and Covenants of Cedar. Cedar hereby represents and warrants
and
covenants to Buyer as follows:
(a) Cedar
is
a limited liability company duly formed and validly existing under Delaware
law.
(b) Cedar
has
the full power and authority to execute, deliver and perform this Addendum
and
to enter into and consummate the transactions contemplated by this Addendum.
Cedar has duly authorized the execution, delivery and performance of this
Addendum, has duly executed and delivered this Addendum and this Addendum
constitutes a legal, valid and binding obligation of Cedar, enforceable against
Cedar in accordance with its terms.
(c) Cedar
has
received only one payment from Borrower since January 11, 2007, which payment
totaled $250,000 and was made in accordance with Section 1.a.ii of the Waiver
and Amendment Agreement dated January 23, 2007 by and among Cedar and certain of
the Borrowers (the “Waiver”), pursuant to which Borrowers represented and
acknowledged that the total amount due and owing under the Assigned Loan,
exclusive of professional fees and other expenses, as of January 11, 2007,
was
$2,152,580.85. Of the $250,000, $235,000 was applied against principal and
interest due and owing under the Assigned Loan Documents.
(d) Cedar
is
the legal and beneficial owner and holder of the Assigned Loans and Cedar has
not pledged, assigned or otherwise previously transferred the Assigned Loans.
The Assigned Loan Documents are free and clear of any adverse claims created
by
Cedar or any liens, encumbrances, etc. whatsoever.
(e) Cedar
has
not modified or amended the Assigned Loans,
except
as set forth in the Assigned Loan Documents.
8. Representations
and Warranties of Buyer. Buyer hereby represents and warrants to
Cedar:
(a) Each
Buyer has all requisite power and authority to execute, deliver and perform
this
Addendum and to enter into and consummate the transactions contemplated by
this
Addendum. The officer or officers of each Buyer who shall execute and deliver
this Addendum have been duly authorized to do so by all requisite action on
the
part of each Buyer.
Each
Buyer has duly authorized the execution, delivery and performance of this
Addendum, has duly executed and delivered this Addendum and this Addendum
constitutes a legal, valid and binding obligation of such Buyer, enforceable
against such Buyer in accordance with its terms.
(c) Buyer
has
made such examination, review and investigation of the Assigned Loan Documents
and the Assigned Loan, and of any and all facts and circumstances necessary
to
evaluate the Assigned Loan Documents and the Assigned Loan it has deemed
necessary or appropriate. Except for the representations and warranties
specifically and expressly made by Cedar above (a) Buyer has been and will
continue to be solely responsible for Buyer’s own independent investigations as
to all aspects of the transactions contemplated; and (b) Buyer has not relied
upon any expressed or implied, written or oral, representation, warranty or
other statement by or on behalf of Cedar concerning any of the, except for
such
representations and warranties of Cedar as are specifically and expressly
provided in this Addendum.
(d) Buyer
is
acquiring the Assigned Loan and Assigned Loan Documents without any view either
to participate in (other than as described in this Addendum), or to sell the
Assigned Loan and Assigned Loan Documents in connection with, any public
distribution thereof, and Buyer has no intention of making any distribution
of
the Assigned Loan and Assigned Loan Documents in a manner which would violate
applicable securities laws; provided, however, that nothing in this Addendum
shall restrict or limit in any way Buyer’s ability and right to dispose of all
or part of the Assigned Loan and Assigned Loan Documents in accordance with
such
laws if at some future time Buyer deems it advisable to do so; and, provided,
further, that Buyer and any party acquiring all or any portion of the Assigned
Loan and Assigned Loan Documents or any proceeds thereof from Buyer, other
than
Cedar or Cedar
or
any
successor, must agree in writing with Cedar to be bound (or to continue to
be
bound) by this Addendum.
9. Representation
of Borrower. Borrower hereby represents and acknowledges the absence of any
any
valid offset, defense, counterclaim or right of rescission as to the Assigned
Loan.
3
10. Taxes.
Each party shall be responsible for the payment of all taxes and charges,
including sales and transfer taxes and recording taxes, resulting from or
payable in connection with Cedar’s assignment of the Assigned Loan and the
Assigned Loan Documents for which each party is liable as a matter of law..
No
party shall have the obligation to pay taxes due by another party.
11. Borrower’s
Release. In consideration of the benefits provided to Borrower under the terms
and provisions of this Addendum, Borrower hereby agrees as follows:
(a) Borrower,
for itself and on behalf of its respective successors and assigns, does hereby
release, acquit and forever discharge Cedar, and the past or present officers,
directors, attorneys, affiliates, employees and agents of Cedar, from any and
all claims, demands, obligations, liabilities, causes of action, offsets,
damages, costs or expenses, of every type, kind or nature, whether known or
unknown, suspected or unsuspected, liquidated or unliquidated that Borrower
now
has or may acquire against any one or more of them, arising out of events or
transactions which occurred before its execution of this Addendum (each a
“Released Claim” and collectively, the “Released Claims”), including without
limitation, those Released Claims arising out of or connected with the
transactions arising under or related to the Assigned Loans or Assigned Loan
Documents.
(b) Each
individual signing this Addendum on behalf of Borrower acknowledges that he
or
she has read each of the provisions of this section, and has had the opportunity
to review the legal consequences of this section with an attorney. Borrower
acknowledges and agrees that it is aware of, familiar with, understands, and
expressly waives the provisions of Section 1542 of the California Civil Code,
and any other similar statute, code, law or regulation to the fullest extent
it
may waive such rights and benefits. Section 1542 provides:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his favor at the time of executing the release, which if known by
him
must have materially affected his settlement with the debtor.
12. Further
Assurances.
(a) Effective
upon the Closing, Cedar, Borrower and Buyer each hereby covenant and agree
to
execute and deliver all such documents and instruments, and to take such further
actions as may be reasonably necessary or appropriate, from time to time, to
carry out the intent and purpose of this Addendum and to consummate the
transactions contemplated hereby.
13. Miscellaneous.
(a) Notices.
Unless otherwise provided in this Addendum, all notices or demands by any party
relating to this Addendum or any other agreement entered into in connection
herewith shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid)
shall be personally delivered or sent by a recognized overnight delivery
service, certified mail, postage prepaid, return receipt requested, or by
telefacsimile to Cedar or Buyer, as the case may be, at its addresses set forth
below:
If
to
Cedar:
Cedar
Boulevard Lease Funding, LLC
00
Xxxxx
Xxxx Xx., Xxxxx 0
Xxxxxxxxx,
XX 00000
Attention:
Xxx Xxxx
4
with
a copy to:
Winston
& Xxxxxx LLP
000
Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxx Xxxxxxxxxx
If
to
Borrower:
VoIP,
Inc.
000
Xxxxx
Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention:
Xxxxxx Xxxxxx
Fax
Number: (000) 000-0000
With
a
copy by telecopier only to:
Xxxxxxx,
Xxxxxxx & Xxxxxx LLP
000
Xxxxx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
Fax
Number: (000) 000-0000
If
to
Buyer: to the names and addresses on the signature pages hereto
With
a
copy to:
Grushko
& Xxxxxxx, P.C.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
The
parties hereto may change the address at which they are to receive notices
hereunder, by notice in writing in the foregoing manner given to the
other.
(b)
No
Waiver. No delay or omission by either party hereto in exercising any right
or
power arising from any default by the other party hereto shall be construed
as a
waiver of such default or as an acquiescence therein, nor shall any single
or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right or power arising from any default by the other party hereto.
No waiver of any breach of any of the covenants or conditions contained in
this
Addendum shall be construed to be a waiver of or an acquiescence in or a consent
to any previous or subsequent breach of the same or of any other condition
or
covenant.
(c) No
Third
Party Beneficiary. This Addendum is made for the sole benefit of Cedar, Borrower
and Buyer and their respective successors and permitted assigns, and no other
person or persons shall have any rights or remedies under or by reason of this
Addendum or any right to the exercise of any right or power of either party
hereto or arising from any default by either party hereto.
5
(d) Attorney
Fees and Costs. In the event any legal action is undertaken in order to enforce
or interpret any provision of this Addendum, the prevailing party in such legal
action, as determined by the court, shall be entitled to receive from the other
party the prevailing party’s reasonable attorneys’ fees and court
costs.
(e) Time
of
Essence. Time is hereby declared to be of the essence of this Addendum and
of
every part hereof. When the context and construction so require, all words
used
in the singular herein shall be deemed to have been used in the plural and
the
masculine shall include the feminine and the neuter and vice versa.
(f) No
Assignment to Third Party. Prior to Closing, this Addendum shall not be assigned
by either party without the written consent of the other party, which consent
may be withheld in such other party’s sole discretion.
(g) Integration;
Entire Agreement. This Addendum and any documents executed in connection
herewith or pursuant hereto constitute the entire understanding between the
parties hereto with respect to the subject matter hereof, superseding all prior
written or oral understandings, and may not be terminated, modified or amended
in any way except by a written agreement signed by each of the parties
hereto.
(h) Counterparts.
This Addendum may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute but one and
the
same document.
(i) Legal
Effect. The Assigned Loan Documents remain in full force and effect. If any
provision of this Addendum conflicts with applicable law, such provision shall
be deemed severed from this Addendum, and the balance of this Addendum shall
remain in full force and effect.
(j) Choice
of
Law and Venue; Jury Trial Waiver. This Addendum shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without regard to principles of conflicts of law. CEDAR,
BORROWER AND BUYER WAIVE
ANY
RIGHT
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS ADDENDUM OR ANY TRANSACTION CONTEMPLATED HEREIN, INCLUDING CLAIMS BASED
ON
CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER COMMON LAW OR STATUTORY BASES.
Each
party hereby
submits
to the exclusive jurisdiction of the state and federal courts located in the
County of New York, State of New York. If the jury waiver set forth in this
Section is not enforceable, then any dispute, controversy or claim arising
out
of or relating to this Addendum or any of the transactions contemplated herein
will be finally settled by binding arbitration in New York, New York in
accordance with the then-current Commercial Arbitration Rules of the American
Arbitration Association by one arbitrator appointed in accordance with said
rules. The arbitrator shall apply New York law to the resolution of any dispute,
without reference to rules of conflicts of law or rules of statutory
arbitration. Judgment on the award rendered by the arbitrator may be entered
in
any court having jurisdiction thereof. Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for preliminary or
interim equitable relief, or to compel arbitration in accordance with this
paragraph. The expenses of the arbitration, including the arbitrator’s fees and
expert witness fees, incurred by the parties to the arbitration, may be awarded
to the prevailing party, in the discretion of the arbitrator, or may be
apportioned between the parties in any manner deemed appropriate by the
arbitrator. Unless and until the arbitrator decides that one party is to pay
for
all (or a share) of such expenses, both parties shall share equally in the
payment of the arbitrator’s fees as and when billed by the
arbitrator.
(k) Cedar,
Borrower and Buyer shall each bear their own expenses, including legal fees,
incident to the negotiation and preparation of this Addendum and the
consummation of the transaction contemplated thereby. Nothing contained herein,
however, shall be construed as Cedar’s waiver any rights or remedies Cedar may
have against Borrower with respect to reimbursement of Cedar’s expenses,
including legal fees, in the event that the transaction contemplated under
this
Addendum is not accomplished.
[Balance
of Page Intentionally Left Blank]
6
IN
WITNESS WHEREOF the undersigned have executed this Addendum as of the first
date
above written.
BUYERS
|
SUBSCRIBERS
|
|
AMOUNT
OF SUBSCRIPTION
|
|
PRINCIPAL
AMOUNT
|
|
||
|
ALPHA
CAPITAL ANSTALT
By:_____________________________________
Name:
Title:
Xxxxxxxxx
0
0000
Xxxxxxxxxxx
Xxxxx,
Xxxxxxxxxxxx
Fax:
000-00-00000000
|
$
|
297,076.00
|
$
|
356,156.73
|
|||
|
WHALEHAVEN
CAPITAL FUND LIMITED
By:_____________________________________
Name:
Title:
0xx
Xxxxx, 00 Xxx-Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx XX00
Fax:
(000) 000-0000
|
$
|
249,102.00
|
$
|
298,523.84
|
|||
|
XXXXX
INTERNATIONAL LTD.
By:_____________________________________
Name:
Title:
00xx
Xxxxxx Xxxxxxxxxxxx Xxxxxxx
Xxxxx
Xxxxx, 00xx
Xxxxx, Xxxxxx
Xxxxxxxx
of Panama
Fax:
(000) 000-0000
|
$
|
249,102.00
|
$
|
298,523.84
|
|||
|
BRISTOL
INVESTMENT FUND, LTD.
By:____________________________________
Name:
Title:
c/o
Caledonian Fund Services Limited
69
Xx. Xxx’x Drive
Xxxxxx
Town, Grand Cayman
Cayman
Islands
Fax:
(000) 000-0000
|
$
|
287,400.00
|
$
|
344,420.16
|
|||
|
CHESTNUT
RIDGE PARTNERS LP
By:____________________________________
Name:
Title:
00
Xxxx Xxxxxxxxx
Xxxxxxxxx
Xxxx, XX 00000
Fax:
(000) 000-0000
|
$
|
114,960.00
|
$
|
137,768.06
|
|||
7
|
CENTURION
MICROCAP, L.P.
By:______________________________________
Name:
Title:
0000
Xxxxxx X
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
191,600.00
|
$
|
229,613.44
|
|||
|
PLATINUM
LONG TERM GROWTH II INC.
By:____________________________________
Name:
Title:
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx Xxxxxxxxx
Fax:
(212)
|
$
|
95,800.00
|
$
|
114,806.72
|
|||
|
DOUBLE
U MASTER FUND L.P.
By:_____________________________________
Name:
Title:
P.
O. Xxx 000
Xxxxxxx
Xxxxx
Xxxxxxxx,
Xxxxxxx, BVI
Fax:
(000) 000-0000
|
$
|
114,960.00
|
$
|
137,768.06
|
|||
|
TOTAL
|
$
|
1,600,000.00
|
$
|
1,917,580.85
|
0
XXXXX
XXXXXXXXX LEASE FUNDING LLC
By:
________________________________________
Title:
______________________________________
VOIP,
INC.
By:
________________________________________
Title:
_______________________________________
[Signature
Page to Addendum to Assignment of Secured
Subordinated Promissory Note,
etc.]
9
ACKNOWLEDGEMENT,
AGREEMENT AND CONSENT
The
undersigned hereby consents to the foregoing Addendum to Assignment of Secured
Subordinated Promissory Note. .
VOIP,
INC., ON BEHALF OF ITSELF AND ALL OF ITS SUBSIDIARIES
By:
______________________________________
Name:
____________________________________
Its:
_______________________________________
[Signature
Page to Addendum to Assignment of Secured Subordinated Promissory Note,
etc.
Acknowledgement,
Agreement and Consent]
10
SCHEDULE
1
[Purchase
Price; Wiring Instructions]
Purchase
Price:
|
Cedar
Boulevard
Lease Funding LLC:
|
$
|
1,600,000
|
Wiring
Instructions: [Wire
instructions]
11
Exhibit
A
Assigned
Loan Documents
12
Exhibit
B
[Assignment
and Assumption of Assigned Loan Documents]
13
ASSIGNMENT
AND ASSUMPTION OF LOAN DOCUMENTS
THIS
ASSIGNMENT AND ASSUMPTION OF LOAN DOCUMENTS is entered into as of January
31,
2007,
by and between CEDAR BOULEVARD LEASE FUNDING LLC, LTD. (collectively,
“Assignor”), and ALPHA CAPITAL ANSTALT, WHALEHAVEN CAPITAL FUND LIMITED, XXXXX
INTERNATIONAL LTD., BRISTOL INVESTMENT FUND, LTD., CHESTNUT RIDGE PARTNERS
LP,
CENTURION MICROCAP, L.P., PLATINUM LONG TERM GROWTH II INC., DOUBLE U MASTER
FUND L.P. (each an “Assignee”), with reference to the following
facts:
A. Pursuant
to that certain Addendum to Assignment of Secured Subordinated Promissory Note
dated of even date herewith by and between Assignor, as Seller, and Assignee,
as
Buyer (the “Sale Agreement”), Assignee agreed to acquire a loan made by Seller
to the parties listed in the Sale Agreement as Borrowers (“Borrower”) which is
evidenced by the Assigned Loan Documents (as defined in the Sale
Agreement).
B. This
Assignment and Assumption is intended to reflect the assignment by Assignor
to
Assignee of the Assigned Loan Documents relating to the Assigned Loans, as
those
terms are defined in the Sale Agreement and the assumption by Assignee of all
obligations of Assignor with respect thereto, arising on and after the date
hereof.
NOW,
THEREFORE, in order to carry out the provisions of the Sale Agreement, Assignor
hereby assigns to Assignee, without representation or warranty of any kind
or
nature whatsoever, expressed or implied (except as specifically provided in
Section 7 of the Sale Agreement) and without recourse, all of Assignor’s right,
title and interest in and to the Assigned Loan Documents relating to the
Assigned Loans, as those terms are defined in the Sale Agreement, and Assignee
hereby agrees to assume all of Assignor’s remaining obligations, if any, with
respect to the Assigned Loans which arise on and after the date of this
Assignment. Assignor hereby authorizes Assignee to file any financing statements
necessary to evidence this assignment.
|
“ASSIGNOR”
CEDAR
BOULEVARD LEASE FUNDING LLC
|
|
|
By:
Its:
Name:
|
14
ASSIGNEES
|
SUBSCRIBERS
|
AMOUNT
OF SUBSCRIPTION
|
|
PRINCIPAL
AMOUNT
|
||||
|
ALPHA
CAPITAL ANSTALT
By:
___________________________
Name:
Title:
Xxxxxxxxx
0
0000
Xxxxxxxxxxx
Xxxxx,
Xxxxxxxxxxxx
Fax:
000-00-00000000
|
$
|
297,076.00
|
$
|
356,156.73
|
|||
|
WHALEHAVEN
CAPITAL FUND LIMITED
By:
__________________________
Name:
Title:
0xx
Xxxxx, 00 Xxx-Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx XX00
Fax:
(000) 000-0000
|
$
|
249,102.00
|
$
|
298,523.84
|
|||
|
XXXXX
INTERNATIONAL LTD.
By:
__________________________
Name:
Title:
00xx
Xxxxxx Xxxxxxxxxxxx Xxxxxxx
Xxxxx
Xxxxx, 00xx
Xxxxx, Xxxxxx
Xxxxxxxx
of Panama
Fax:
(000) 000-0000
|
$
|
249,102.00
|
$
|
298,523.84
|
|||
|
BRISTOL
INVESTMENT FUND, LTD.
By:
__________________________
Name:
Title:
x/x
Xxxxxxxxxx Xxxx Xxxxxxxx Xxxxxxx
00
Xx. Xxx’x Drive
Xxxxxx
Town, Grand Cayman
Cayman
Islands
Fax:
(000) 000-0000
|
$
|
287,400.00
|
$
|
344,420.16
|
|||
|
CHESTNUT
RIDGE PARTNERS LP
By:
________________________
Name:
Title:
00
Xxxx Xxxxxxxxx
Xxxxxxxxx
Xxxx, XX 00000
Fax:
(000) 000-0000
|
$
|
114,960.00
|
$
|
137,768.06
|
|||
15
|
CENTURION
MICROCAP, L.P.
By:
__________________________
Name:
Title:
0000
Xxxxxx X
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
$
|
191,600.00
|
$
|
229,613.44
|
|||
|
PLATINUM
LONG TERM GROWTH II INC.
By:
__________________________
Name:
Title:
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx Xxxxxxxxx
Fax:
(212)
|
$
|
95,800.00
|
$
|
114,806.72
|
|||
|
DOUBLE
U MASTER FUND L.P.
By:
__________________________
Name:
Title:
P.
O. Xxx 000
Xxxxxxx
Xxxxx
Xxxxxxxx,
Xxxxxxx, BVI
Fax:
(000) 000-0000
|
$
|
114,960.00
|
$
|
137,768.06
|
|||
|
TOTAL
|
$
|
1,600,000.00
|
$
|
1,917,580.85
|
16
Exhibit
C
[Notice
of Assignment of Obligations]
00
Xxxxx
Xxxxxxxxx Lease Funding LLC
January
31, 2007
VOIP,
INC. and subsidiaries
________________________
________________________
Attention:
Chief Financial Officer
Re: Notice
of
Assignment of Obligations
Dear
Sirs:
You
are
hereby notified that on January 31, 0000, Xxxxx Xxxxxxxxx Lease Funding LLC
(“Assignor”) assigned and transferred to the parties below (“Assignee”), for
good and valuable consideration, the Assigned Loan Documents described in that
certain Addendum to Assignment of Secured Subordinated Promissory Note, dated
January 31, 2007, by and between Assignor and Assignee as of the date
hereof.
Please
direct future correspondence and payments to the Assignee at the following
address:
|
ALPHA
CAPITAL ANSTALT
By:
__________________________________
Name:
Title:
Xxxxxxxxx
0
0000
Xxxxxxxxxxx
Vaduz,
Lichtenstein
Fax:
000-00-00000000
|
WHALEHAVEN
CAPITAL FUND LIMITED
By:
_________________________________
Name:
Title:
0xx
Xxxxx, 00 Xxx-Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx XX00
Fax:
(000) 000-0000
|
|
|
XXXXX
INTERNATIONAL LTD.
By:
__________________________________
Name:
Title:
00xx
Xxxxxx Xxxxxxxxxxxx Xxxxxxx
Xxxxx
Xxxxx, 00xx
Xxxxx, Xxxxxx
Xxxxxxxx
of Panama
Fax:
(000) 000-0000
|
BRISTOL
INVESTMENT FUND, LTD.
By:
_________________________________
Name:
Title:
x/x
Xxxxxxxxxx Xxxx Xxxxxxxx Xxxxxxx
00
Xx. Xxx’x Drive
Xxxxxx
Town, Grand Cayman
Cayman
Islands
Fax:
(000) 000-0000
|
|
|
CHESTNUT
RIDGE PARTNERS LP
By:
________________________________
Name:
Title:
00
Xxxx Xxxxxxxxx
Xxxxxxxxx
Xxxx, XX 00000
Fax:
(000) 000-0000
|
CENTURION
MICROCAP, L.P.
By:
____________________________________
Name:
Title:
0000
Xxxxxx X
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
|
18
|
PLATINUM
LONG TERM GROWTH II INC.
By:
_________________________________
Name:
Title:
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx Xxxxxxxxx
Fax:
(212)
|
DOUBLE
U MASTER FUND L.P.
By:
_________________________________
Name:
Title:
P.
O. Xxx 000
Xxxxxxx
Xxxxx
Xxxxxxxx,
Xxxxxxx, BVI
Fax:
(000) 000-0000
|
Please
contact the undersigned should you have any questions, and we thank you for
your
cooperation.
Sincerely,
CEDAR
BOULEVARD LEASE FUNDING LLC
By:
_____________________________________
Name:
___________________________________
Title:
____________________________________
19
