Exhibit 99.1
AMENDMENT AND FORBEARANCE AGREEMENT
AMENDMENT AND FORBEARANCE AGREEMENT, dated as of October 17, 2006, by and
among ONE IP VOICE, INC. (f/k/a Farmstead Telephone Group, Inc.), a Delaware
corporation ("Parent"), OIPV CORP. (f/k/a One IP Voice, Inc.), a Delaware
corporation ("OIPV" and together with Parent, each a "Company" and collectively
the "Companies"), and LAURUS MASTER FUND, LTD. ("Laurus").
W I T N E S S E T H:
--------------------
WHEREAS, Laurus and each Company have entered into certain financing
arrangements pursuant to a Security Agreement, dated as of March 31, 2005, by
and among Laurus and each Company (as amended hereby, and as the same may have
heretofore been or may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced from time to time, the "Security
Agreement", and together with all Ancillary Agreements (as defined in the
Security Agreement) and all other agreements, documents and instruments at any
time executed and/or delivered in connection therewith or related thereto,
collectively, the "Financing Agreements"); and
WHEREAS, as of the date hereof, the Designated Defaults (as hereafter
defined) have occurred and are continuing under the Financing Agreements by
reason of which Laurus has no obligation to make any additional Loans and Laurus
has the full legal right to exercise its rights and remedies under the Financing
Agreements and applicable law; and
WHEREAS, each Company has requested that Laurus forbear for a period of
time from exercising Laurus' rights and remedies under the Financing Agreements
and that Laurus continue to make Loans under the Financing Agreements; and
WHEREAS, each Company has in addition requested that Laurus,
notwithstanding the occurrence of the Designated Defaults, provide additional
financial accommodations to each Company pursuant to and in accordance with the
terms of the Additional Financing Agreements (as hereafter defined), which
provide for, among other things, that Laurus advance $500,000 to Companies on
October 18, 2006 and advance up to an additional $500,000 in the aggregate
thereafter in accordance with the express terms of the Additional Financing
Agreements; and
WHEREAS, Laurus is willing to agree to establish a period of forbearance
and provide certain additional financial accommodations to each Company, in each
case, on the terms and conditions specified herein;
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements, warranties and covenants contained herein, the parties hereto hereby
agree, covenant and warrant as follows:
SECTION 1. DEFINITIONS
1.1. Interpretation. All capitalized terms used herein (including the
recitals hereto) shall have the respective meanings assigned thereto in the
Financing Agreements and Additional Financing Agreements, as applicable, unless
otherwise defined herein.
1.2. Additional Definitions. As used herein, the following terms shall
have the respective meanings given to them below:
(a) "Additional Financing Agreements" shall mean those documents,
instruments and agreements set forth on Exhibit A hereto, as the same may
be amended, modified, supplemented, extended, renewed, restated or
replaced from time to time.
(b) "Designated Defaults" shall mean all Events of Default that have
occurred through the date hereof and, other than with respect to
Forbearance Defaults, during the Forbearance Period.
(c) "Event of Default" shall have the meaning given to such term
under the Financing Agreements and the Additional Financing Agreements, as
applicable.
(d) "Forbearance Default" shall have the meaning set forth in
Section 3.2(c) hereof
(e) "Forbearance Period" shall have the meaning set forth in Section
3.2(a) hereof.
SECTION 2. ACKNOWLEDGMENT
2.1. Acknowledgment of Obligations. Each Company hereby acknowledges,
confirms and agrees that as of the close of business on October 17, 2006, (a)
each Company is indebted to Laurus for loans and advances in the aggregate
principal amount of $1,191,337.99, together with interest accrued thereon, and
fees, costs, expenses and other charges payable by each Company to Laurus
pursuant to the terms of the Financing Documents (collectively, "the Amount")
and (b) the Amount is a valid and unconditional obligation of each Company to
Laurus and is due and owing without offset, defense or counterclaim of any kind,
nature or description whatsoever.
2.2. Acknowledgment of Security Interests. Each Company hereby
acknowledges, confirms and agrees that Laurus has and shall continue to have
valid, enforceable and perfected first-priority liens upon and security
interests in the Collateral heretofore granted to Laurus pursuant to the
Financing Agreements, the Additional Financing Agreements or otherwise granted
to or held by Laurus. Each Company hereby expressly waives any and all rights to
contest and/or challenge in any manner whatsoever Laurus' perfected
first-priority liens upon and security interests in the Collateral and will
execute any and all documents, instruments and agreements as shall be required
by Laurus from time to time to further evidence, acknowledge and confirm the
same.
2.3. Binding Effect of Documents. Each Company hereby acknowledges,
confirms and agrees that: (a) each of the Financing Agreements and Additional
Financing Agreements to which it is a party has been duly executed and delivered
to Laurus by such Company, and each is
in full force and effect as of the date hereof, (b) the agreements and
obligations of each Company contained in the Financing Agreements, the
Additional Financing Agreements and this Agreement constitute the legal, valid
and binding obligations of each Company, enforceable against it in accordance
with their respective terms, and no Company has any valid defense to the
enforcement of such obligations, and (c) Laurus is and shall be entitled to the
rights, remedies and benefits provided for in the Financing Agreements, the
Additional Financing Agreements, this Agreement and applicable law.
SECTION 3. FORBEARANCE IN RESPECT OF CERTAIN EVENTS OF DEFAULT
3.1. Acknowledgment of Default. Each Company hereby acknowledges and
agrees that the Designated Defaults have occurred and are continuing, each of
which entitles Laurus to exercise its rights and remedies under the Financing
Agreements the Additional Financing Agreements, applicable law or otherwise.
Laurus has not waived, presently does not intend to waive and may never waive
such Designated Defaults and nothing contained herein or the transactions
contemplated hereby shall be deemed to constitute in any manner whatsoever any
such waiver. Each Company hereby acknowledges and agrees that Laurus has the
presently exercisable right to declare the Obligations to be immediately due and
payable under the terms of the Financing Agreements and the Additional Financing
Agreements.
3.2. Forbearance.
(a) In reliance upon the representations, warranties and covenants of each
Company contained in this Agreement, during the period (the "Forbearance
Period") commencing on the date hereof and ending on the earlier to occur of (a)
January 15, 2007 and (ii) the occurrence of any Forbearance Default, Laurus will
forbear from exercising its rights and remedies under the Financing Agreements,
the Additional Financing Agreements and applicable law in respect of or arising
out of any and all Designated Defaults. Notwithstanding the foregoing, nothing
contained herein shall impair in any manner whatsoever Laurus' right to
administer the credit facility and/or to collect, receive and/or apply proceeds
of each Company's accounts receivable and/or any other Collateral to the
Obligations, in each case, in accordance with the terms of the Financing
Agreements and the Additional Financing Agreements.
(b) Upon the termination of the Forbearance Period, the agreement of
Laurus to forbear with respect to such Designated Defaults existing or
continuing as of such termination shall automatically and without further action
terminate and be of no further force and effect, it being expressly agreed that
the effect of such termination will be to permit Laurus to exercise such rights
and remedies immediately, including, but not limited to (i) ceasing to make any
further Loans and (ii) the acceleration of all Obligations (including without
limitation the obligations and liabilities of Each Company to Laurus under the
Additional Financing Agreements); in either case without any further notice,
passage of time or forbearance of any kind.
(c) The occurrence of any one or more of the following events during the
Forbearance Period shall constitute a Forbearance Default: (i) the existence of
any material Event of Default (other than a Designated Default) under Section 19
of the Security Agreement (except for Sections 19(e), 19(g), 19(j) and 19(o)) or
any Additional Financing Agreement; (ii) any Company's failure to pay on demand
all amounts owing under the Additional Financing
Agreements, (iii) any representation or warranty of any Company herein, under
any Financing Agreement or under any Additional Financing Agreement shall be
false, misleading or incorrect in any material respect; (iv) any Company's
failure to comply with the covenants, conditions and agreements contained
herein; (v) any Person, other than Laurus or ScanSource, Inc., shall at any time
exercise for any reason any of its rights or remedies against any Company or any
Company's properties or assets; (vi) the applicable Company's failure to deliver
to Laurus evidence reasonably satisfactory to Laurus of such Company's receipt
of bridge financing and/or follow-on financing (as described in Section
4.1hereof) of gross proceeds of at least $750,000 in the aggregate by December
1, 2006; or (vii) the applicable Company's failure to deliver to Laurus by
December 25, 2006 a fully executed term sheet setting forth the terms,
conditions and pricing of such Company's proposed "Series B" financing to
provided by one or more third party financing sources (the "Series B
Financing"). Notwithstanding any other rights and remedies available to Laurus
under the Financing Agreements, the Additional Financing Agreements and
applicable law, in the event the indebtedness incurred by any Company under the
Series B Financing shall at any time exceed $12,000,000, Laurus shall have the
right to at any time to demand the immediate repayment in full of all
Obligations under the Financing Agreements and the Additional Financing
Agreements together with all fees, interest, default interest, default payments
and prepayment fees relating thereto.
3.3. Reservation of Rights.
Subject only to Section 3.2 above and solely with respect to the
Designated Defaults, Laurus reserves the right, in its discretion, to exercise
any or all of its rights and remedies under the Financing Agreements and/or the
Additional Financing Agreements as a result of any Events of Default which may
be continuing on the date hereof or any Event of Default which may occur after
the date hereof, and Laurus has not waived any of such rights or remedies, and
nothing in this Agreement, and no delay on its part in exercising any such
rights or remedies, should be construed as a waiver of any such rights or
remedies.
SECTION 4. AMENDMENTS AND SUPPLEMENTARY PROVISIONS
4.1. Bridge and Follow-on Financing. Notwithstanding anything contained in
the Financing Agreements and/or Additional Financing Agreements the contrary,
Laurus hereby acknowledges that Companies shall be permitted, during the
Forbearance Period, to incur additional indebtedness for borrowed money and/or
Parent may sell or issue its equity securities following the date hereof and
such incurrence and/or issuance, as applicable, shall not constitute an Event of
Default under the Financing Agreements and/or the Additional Financing
Agreements so long as prior to the incurrence of any such additional
indebtedness all such indebtedness and all attendant security interests and
liens are subordinated in favor of and on terms and pursuant to such
documentation reasonably acceptable to Laurus. Laurus hereby waives the right of
first refusal provisions of Section 13(u) of the Security Agreement with respect
to bridge and follow-on financing contemplated by this Section 4.1.
4.2. Fixed Conversion and Exercise Price Amendments. Notwithstanding
anything contained in the Financing Agreements to the contrary, (a) the Fixed
Conversion Price under and as defined in the Minimum Borrowing Notes and the
Revolving Note heretofore issued to Laurus, shall be amended to a price equal to
sixty cents ($0.60) per share and (b) the
Exercise Price set forth and as defined in the Warrant dated as of March 31,
2005 issued by Parent to Laurus shall be amended to a price equal to sixty cents
($0.60) per share.
4.3. Deliverables. In addition to and not in limitation of any other
reporting requirements set forth in the Financing Agreements and the Additional
Financing Agreements, (a) on the first Business Day of each week, Parent shall
deliver to Laurus a statement of cash flow for each Company in form and covering
such period reasonably acceptable to Laurus, (b) on the first Business Day of
each bi-weekly period following the date hereof, Parent shall deliver to Laurus
a Collateral and liquidation analysis with respect to each Company in form
reasonably acceptable to Laurus, and (c) as soon as available and in any event
within thirty (30) days after the end of each month, Parent shall deliver to
Laurus monthly unaudited/internal financial statements for Companies in the same
manner as otherwise required by the Financing Agreements for the delivery to
Laurus of quarterly financial statements.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Company hereby represents warrants and covenants with and to Laurus as
follows:
5.1. Binding Effect of Documents. This Agreement, the Financing Agreements
and the Additional Financing Agreements have been duly executed and delivered to
Laurus by each Company and are in full force and effect, as modified hereby.
5.2. No Conflict, Etc. The execution and delivery and performance of this
Agreement by each Company will not violate applicable law or any contractual
obligation of such Company
5.3. Delivery of Original Documents. Each Company shall deliver to Laurus,
within five (5) Business Days following the date hereof, executed originals of
the documents, instruments and agreements set forth in Sections 6(a), (b) and
(c).
SECTION 6. CONDITIONS TO EFFECTIVENESS OF CERTAIN PROVISIONS OF THIS AGREEMENT
The effectiveness of the terms and provisions of Section 3.2 of this
Agreement shall be subject to the receipt by Laurus of each of the following, in
form and substance satisfactory to Laurus:
(a) copies this Agreement, duly authorized, executed and delivered
by each Company.
(b) copies of the Additional Financing Agreements, duly authorized,
executed and delivered by the applicable Company.
(c) a copy of the original stock certificate and related stock power
executed in blank by Parent evidencing 100% of the issued and outstanding
capital stock of OIPV.
(d) payment by Companies to Laurus of all costs and expenses payable
under Section 7.2 hereof, which amounts may be charged by Laurus to
Companies' loan account.
(e) a copy of the Companies' statement of cash flow as delivered to
Parent's board of directors on October 13, 2006.
SECTION 7. PROVISIONS OF GENERAL APPLICATION
7.1. Effect of this Agreement. Except as modified pursuant hereto, no
other changes or modifications to the Financing Agreements and/or the Additional
Financing Agreements are intended or implied and in all other respects the
Financing Agreements and the Additional Financing Agreements are hereby
specifically ratified, restated and confirmed by each Company as of the
effective date hereof. To the extent of conflict between the terms of this
Agreement and the Financing Agreements and/or the Additional Financing
Agreements, the terms of this Agreement shall control.
7.2. Costs and Expenses. Each Company shall jointly and severally pay all
costs, fees and expenses of Laurus (including the costs, fees and expenses of
Laurus' counsel) incurred by Laurus in connection with the negotiation,
preparation, administration and enforcement of this Agreement, the Financing
Agreements and the Additional Financing Agreements; provided that the aggregate
costs, fees and expenses payable by Companies to Laurus in connection with the
negotiation and preparation of this Agreement and the Additional Financing
Agreements shall be limited to $20,000 in the aggregate.
7.3. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Agreement.
7.4. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns; provided that no Company may assign any of its rights or delegate any
of its responsibilities hereunder without the prior written consent of Laurus.
7.5. Survival of Representations and Warranties. All representations and
warranties made in this Agreement or any other document furnished in connection
with this Agreement shall survive the execution and delivery of this Agreement
and the other documents, and no investigation by Laurus or any closing shall
affect the representations and warranties or the right of Laurus to rely upon
them.
7.6. Release.
(a) In consideration of the agreements of Laurus contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each Company, on behalf of itself and its successors,
assigns, and other legal representatives, hereby absolutely, unconditionally and
irrevocably releases, remises and forever discharges Laurus, and its successors
and assigns, and its present and former shareholders, affiliates, subsidiaries,
divisions, predecessors, directors, officers, attorneys, employees, agents and
other representatives (Laurus and all such other Persons being hereinafter
referred to collectively as the "Releasees" and individually as a "Releasee"),
of and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings,
damages and any and all other claims, counterclaims,
defenses, rights of set-off, demands and liabilities whatsoever (individually, a
"Claim" and collectively, "Claims") of every name and nature, known or unknown,
suspected or unsuspected, both at law and in equity, which any Company or any of
its successors, assigns, or other legal representatives may now or hereafter
own, hold, have or claim to have against the Releasees or any of them for, upon,
or by reason of any circumstance, action, cause or thing whatsoever which arises
at any time on or prior to the day and date of this Agreement, including,
without limitation, for or on account of, or in relation to, or in any way in
connection with any Financing Agreement, any Additional Financing Agreement,
this Agreement or any transactions thereunder, hereunder or related thereto or
hereto, including without limitation any claims or causes of action based on
"lender liability" and/or "deepening insolvency."
(b) Each Company understands, acknowledges and agrees that the release set
forth above may be pleaded as a full and complete defense and may be used as a
basis for an injunction against any action, suit or other proceeding which may
be instituted, prosecuted or attempted in breach of the provisions of such
release.
(c) Each Company agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered
shall affect in any manner the final, absolute and unconditional nature of the
release set forth above.
7.7. Covenant Not to Xxx or Commence Bankruptcy Related Proceedings. Each
Company, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably covenants
and agrees with and in favor of each Releasee that it will not (a) xxx (at law,
in equity, in any regulatory proceeding or otherwise) any Releasee on the basis
of any Claim released, remised or discharged by such Company pursuant to Section
7.6 above, (b) apply for, consent to or suffer to exist the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property, (c) make a general
assignment for the benefit of creditors, (d) commence a voluntary case under any
state or federal bankruptcy laws or similar laws (as now or hereafter in
effect), (e) be adjudicated a bankrupt or insolvent, (f) file a petition seeking
to take advantage of any other law providing for the relief of debtors, (g)
acquiesce to without challenge (within ten (10) days of the filing thereof)
and/or otherwise fail to dismiss (within forty-five (45) days from the filing
thereof) any petition filed against it in any involuntary case under such
bankruptcy or similar laws, and/or (h) take any action for the purpose of
effecting any of the foregoing. If any Company or any of its successors, assigns
or other legal representations violates the foregoing covenant, each Company,
for itself and its successors, assigns and legal representatives, agrees that
such occurrence shall constitute a Forbearance Default, and it shall jointly and
severally pay, all such damages as any Releasee may sustain in connection with
such violation, together with all attorneys' fees and costs incurred by any
Releasee as a result of such violation.
7.8. Severability. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement
7.9. Relief From Automatic Stay. In the event any case is commenced by or
against any Company under any state or federal bankruptcy or similar laws (as
now or hereafter in effect), each Company hereby acknowledges and consents that
(i) Laurus is entitled to immediate
relief from any automatic stay imposed and (ii) it will not oppose any motion
filed by or on behalf of Laurus seeking relief from any automatic stay.
7.10. Reviewed by Attorneys. Each Company represents and warrants to
Laurus that it (a) understands fully the terms of this Agreement and the
Additional Financing Agreements and the consequences of the execution and
delivery of this Agreement and the Additional Financing Agreements, (b) has been
afforded an opportunity to have this Agreement and the Additional Financing
Agreements reviewed by, and to discuss this Agreement and the Additional
Financing Agreements with such attorneys and other Persons as such Company may
wish, and (c) has entered into this Agreement and the Additional Financing
Agreements and executed and delivered all documents in connection herewith and
therewith of its own free will and accord and without threat, duress or other
coercion of any kind by any Person. The parties hereto acknowledge and agree
that neither this Agreement, the Additional Financing Agreements nor the other
documents, instruments and agreements executed pursuant hereto and thereto shall
be construed more favorably in favor of one than the other based upon which
party drafted the same, it being acknowledged that all parties hereto
contributed substantially to the negotiation and preparation of this Agreement,
the Additional Financing Agreements and the other documents, instruments and
agreements executed pursuant hereto and thereto or in connection herewith or
therewith.
7.11. Governing Law: Consent to Jurisdiction and Venue. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE FINANCING AGREEMENTS AND/OR
ADDITIONAL FINANCING AGREEMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OTHER FINANCING
AGREEMENTS AND ADDITIONAL FINANCING AGREEMENTS AND THE OBLIGATIONS ARISING
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH
COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN
THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY COMPANY AND LAURUS
PERTAINING TO THIS AGREEMENT, ANY FINANCING AGREEMENT OR ANY ADDITIONAL
FINANCING AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO HERETO OR
THERETO; PROVIDED, THAT LAURUS AND EACH COMPANY ACKNOWLEDGE THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY
OF NEW YORK, STATE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE LAURUS FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS,
TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LAURUS. EACH COMPANY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY
SUCH COURT, AND EACH COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO PARENT (AS AGENT FOR ITSELF AND EACH
OTHER COMPANY) AT THE ADDRESS SET FORTH FOR PARENT IN THE FINANCING AGREEMENTS
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF PARENT'S
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
7.12. Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT,
TORT, OR OTHERWISE BETWEEN LAURUS AND EACH APPLICABLE COMPANY ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS AGREEMENT, ANY FINANCING AGREEMENT OR ANY
ADDITIONAL FINANCING AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
7.13. Counterparts; Facsimile Signatures. This Agreement may be executed
in any number of counterparts, but all of such counterparts shall together
constitute but one and the same agreement. Any signature delivered by facsimile
transmission or PDF file shall be deemed to be an original signature hereto.
7.14. Amendment. No amendment, modification, rescission, waiver or release
of any provision of this Agreement shall be effective unless the same shall be
in writing and signed by the parties hereto.
7.15. Xxxxxxxxxxxxxxxx xx 00 X.X.X. 000, 000 (x) and 548. Each Company,
its officers, directors, employees, and advisors, including and through the
signatories hereto on behalf of such Company, and such Company's
successors-in-interest, including but not limited to any bankruptcy estate
representative, hereby unconditionally and irrevocably warrants, represents and
agrees for all purposes that (a) the liens and security interests to be provided
to Laurus under the Additional Financing Agreements and, to the extent not
previously provided or perfected under the Financing Agreements, are being
received by Laurus in good faith, for reasonably equivalent value and for good,
sufficient and contemporaneous consideration and new value
within the meaning of 11 U.S.C. 547(c) and applicable provisions of 11 U.S.C.
548, 544 and non-bankruptcy law, (b) said liens and security interests are not
and shall not be avoidable for any reason in any insolvency proceeding or
otherwise, and (c) said parties shall neither take nor assent to any action in
any bankruptcy proceeding the effect of which would be to avoid said liens or
security interests or to otherwise in any way undermine or challenge any of the
liens, claims, interests and rights of Laurus. The consideration and new value
given by Laurus includes, but is not limited to, the advances to be made to the
Companies by Laurus pursuant to the terms hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement is executed and delivered as of the day
and year first above written.
ONE IP VOICE, INC. (f/k/a Farmstead
Telephone Group, Inc.)
By: /s/ Xxxx-Xxxx Xxxxxxxxxxx
----------------------------------
Its: C.E.O.
----------------------------------
OIPV CORP. (f/k/a One IP Voice, Inc.)
By: /s/ Xxxx-Xxxx Xxxxxxxxxxx
----------------------------------
Its: President
----------------------------------
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Grin
----------------------------------
Its: Director
----------------------------------
EXHIBIT A
to
AMENDMENT AND FORBEARANCE AGREEMENT
Additional Financing Agreements
-------------------------------
1. Secured Demand Note dated October 17, 2006 in the original principal
amount of $1,000,000 jointly and severally made by Parent and OIPV in
favor of Laurus.
2. Master Security Agreement dated October 17, 2006 by and among Parent, OIPV
and Laurus.
3. Joinder Agreement dated as of October 17, 2006 by and among Parent, OIPV
and Laurus.
4. Common Stock Purchase Warrant dated October 17, 2006 made by Parent in
favor of Laurus
5. Stock Pledge Agreement dated as of October 17, 2006 by and among Parent,
OIPV and Laurus.
