EXHIBIT 4.13.9
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT (this
"Agreement"), dated as of April 29, 2005, among the investors listed on Schedule
A hereto, and acknowledged and agreed to by Epixtar Corp., a Florida corporation
("EPXR") and Voxx Corporation, a Florida corporation ("Voxx").
PRELIMINARY STATEMENTS
WHEREAS, Laurus Master Fund, Ltd. ("Laurus") has invested
amounts in EPXR and Voxx (EPXR and Voxx, collectively, the "Issuer"), pursuant
to the terms of (x) the documents, instruments and agreements set forth on
Schedule B-1 hereto (as amended, restated, modified and/or supplemented from
time to time, the "2004 Laurus Documents") and (y) the documents, instruments
and agreements set forth on Schedule B-2 hereto (as amended, restated, modified
and/or supplemented from time to time, the "2005 Laurus Documents" and, together
with the 2004 Laurus Documents, the "Laurus Documents" and each, a "Laurus
Document") ;
WHEREAS, Sands Brothers Venture Capital LLC, Sands Brothers
Venture Capital II LLC, Sands Brothers Venture Capital III LLC and Sands
Brothers Venture Capital IV LLC (collectively, the "Sands Creditors") have
invested amounts in EPXR and Voxx pursuant to the terms of the documents,
instruments and agreements set forth on Schedule C hereto (as amended, restated,
modified and/or supplemented from time to time, the "Sands Documents");
WHEREAS, to secure the complete and prompt payment of all
Obligations to the Laurus Creditors and the Sands Creditors (each Laurus
Creditor and each Sands Creditor, collectively, the "Secured Parties"), Issuer
has executed the agreements set forth on Schedule D hereto (as amended,
restated, modified and/or supplemented from time to time, the "2005 Security
Documents") in favor of Laurus, individually and/or as Collateral Agent (as
defined below) for the benefit of the Secured Parties granting to each Secured
Party, a security interest in the Shared Collateral (as defined below); and
WHEREAS, the Secured Parties desire to appoint Laurus to act
as agent for the Secured Parties with respect to the control, maintenance,
preservation and enforcement of the Shared Collateral (Laurus in such capacity,
the "Collateral Agent") and Laurus desires to accept such appointment, subject
to the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Collateral Agent
and the Secured Parties agree as follows:
SECTION 1.61. Definitions. Unless otherwise defined in this Section 1
or elsewhere in this Agreement, capitalized terms used herein shall have the
meaning assigned such terms as set forth in the 2005 Laurus Securities Purchase
Agreement.
"Collateral" shall mean, collectively, the Shared Collateral
and the Laurus Collateral.
"Defined Obligations" means, collectively, the Sands
Obligations and the Laurus Defined Obligations.
"Investor Documents" means, collectively, this Agreement, the
Laurus Documents, the Sands Documents and all other documents, agreements and
instruments from time to time executed by Issuer, any Subsidiary of the
respective Issuer or any other Person, and delivered to the Collateral Agent or
the Secured Parties in connection with the transactions contemplated by this
Agreement, the Laurus Documents and the and the Sands Documents.
"Laurus Collateral" shall mean, collectively, all collateral
granted to any Laurus Creditor as security for the Laurus Obligations
(including, without limitation, pursuant to any Laurus Document).
"Laurus Collateral Preference Amount" means that amount, if
any, which is equal at the time of any distribution or amount resulting from
proceeds derived from the Shared Collateral which shall be equal to the lesser
of (i) the then outstanding amount of the Laurus Preference Obligations and (ii)
$5,000,000.
"Laurus Creditor" shall mean Laurus and any and all Persons
which hold any indebtedness, liability or obligation under the Laurus Documents
or any other document, agreement or instrument related thereto, including,
without limitation, any successors and/or assigns of Laurus.
"Laurus Defined Obligations" means all indebtedness and other
obligations incurred by the Issuer or any Subsidiary of the Issuer and owed to
Laurus in connection with the issuance of the 2005 Laurus Note and the execution
of the other 2005 Laurus Documents.
"Laurus Documents" shall have the meaning set forth in the
recitals hereto.
"Laurus Obligations" include all debts, liabilities and
obligations owing by any Loan Party to any Laurus Creditor arising under, out
of, or in connection with any Laurus Document, and in connection with any
documents, instruments or agreements relating to or executed in connection with
the Laurus Documents or any documents, instruments or agreements referred to
therein or otherwise, and in connection with any other indebtedness, obligations
or liabilities of any Loan Party to any Laurus Creditor, whether now existing or
hereafter arising, direct or indirect, liquidated or unliquidated, absolute or
contingent, due or not due and whether under, pursuant to or evidenced by a
note, agreement, guaranty, instrument or otherwise, in each case, irrespective
of the genuineness, validity, regularity or enforceability of the Laurus
Obligations, or of any instrument evidencing any of the Laurus Obligations or
any Laurus Collateral or of the existence or extent of such Laurus Collateral,
and irrespective of the allowability, allowance or disallowance of any or all of
the Laurus Obligations in any case commenced by or against any Loan Party under
Xxxxx 00, Xxxxxx Xxxxxx Code, including, without limitation, obligations or
indebtedness of any Loan Party for post-petition interest, fees, costs and
charges that would have accrued or been added to the Laurus Obligations but for
the commencement of such case, irrespective of the allowability, allowance or
disallowance of such post-petition interest, fees, costs and charges.
"Laurus Preference Obligation" means all indebtedness and
other obligations incurred by EPXR and/or any Subsidiary of EPXR and owed to
Laurus in connection with issuance of the 2004 Laurus Note and the execution of
the other 2004 Laurus Documents.
"Loan Party" shall have the meaning ascribed thereto in
Section 3 of this Agreement.
"Obligations" means, collectively, the Laurus Obligations and
the Sands Obligations.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity, or a
government or any political subdivision or agency thereof.
"Pro Rata Share" means, when calculating a Secured Party's
portion of any distribution or amount resulting from proceeds derived from the
Shared Collateral in respect of any Defined Obligations at any time after
satisfaction of the Laurus Collateral Preference Amount, an amount equal to a
fraction, the numerator of which is the then unpaid amount of such Defined
Obligations owing to or held by such Secured Party and the denominator of which
is the aggregate amount of all Defined Obligations owing by Issuer or any of its
Subsidiaries to all the Secured Parties entitled to receive that particular
distribution and amount in accordance with Section 8 at such time.
"Required Sands Creditors" shall have the meaning assigned
such term in Section 9.
"Required Laurus Creditors" shall have the meaning assigned
such term in Section 9.
"Required Secured Parties" shall have the meaning assigned
such term in Section 2(d).
"Sands Creditors" means, collectively, any and all Persons
which hold any indebtedness, liability or obligation under the Sands Documents
or any other document, agreement or instrument related thereto, including,
without limitation, any successors and/or assigns of any of the Sands Creditors.
"Sands Documents" shall have the meaning set forth in the
recitals hereto.
"Sands Master Security Agreement" shall have the meaning
assigned such term in Schedule C.
"Sands Obligations" include all debts, liabilities and
obligations owing by any Loan Party to any Sands Creditor arising under, out of,
or in connection with any Sands Document, and in connection with any documents,
instruments or agreements relating to or executed in connection with the Sands
Documents or any documents, instruments or agreements referred to therein or
otherwise, whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due, in each
case, irrespective of the genuineness, validity, regularity or enforceability of
the Sands Obligations, or of any instrument evidencing any of the Sands
Obligations or any Shared Collateral or of the existence or extent of such
Shared Collateral, and irrespective of the allowability, allowance or
disallowance of any or all of the Sands Obligations in any case commenced by or
against the Issuer or any of their respective Subsidiaries under Xxxxx 00,
Xxxxxx Xxxxxx Code, including, without limitation, obligations or indebtedness
of any Loan Party for post-petition interest, fees, costs and charges that would
have accrued or been added to the Sands Obligations but for the commencement of
such case, irrespective of the allowability, allowance or disallowance of such
post-petition interest, fees, costs and charges; provided that, notwithstanding
the foregoing, the Sands Obligations shall not include any principal amount of
indebtedness in excess of an aggregate amount of $1,500,000 and the rate of
interest and fees related to the Sands Obligations shall not exceed the rate of
interest and fees provided for in the Sands Documents (as in effect on the date
hereof).
"Shared Collateral" shall mean the "Collateral" under and as
defined in each of (i) the Sands Master Security Agreement, (ii) the Sands Stock
Pledge Agreement and (iii) the Sands Foreign Documentation, in each case without
giving effect to any amendments, modifications or supplementations thereto
unless any such amendment, modification or supplementation is agreed to in
writing by Laurus; provided that, notwithstanding anything to the contrary
contained in this definition, "Shared Collateral" shall explicitly exclude any
and all amounts held (or required pursuant to the 2004 Laurus Documents to be
held or deposited in) the Reserve Restricted Account (as defined in the 2004
Laurus Reserve Restricted Account Agreement referred to on Schedule B-1 hereto).
"2004 Laurus Documents" shall have the meaning set forth in
the recitals hereto.
"2005 Laurus Documents" shall have the meaning set forth
in the recitals hereto.
"2005 Laurus Securities Purchase Agreement" shall have the
meaning assigned such term in Schedule B-2.
"UCC" means the Uniform Commercial Code as in effect from time
to time.
SECTION 2.62. Authorization and Action. (a) The Secured Parties hereby
(i) appoint Laurus as the Collateral Agent for purposes of holding, maintaining
and enforcing any Shared Collateral (including, without limitation (1) the
naming of the Collateral Agent, as agent for Secured Parties, as secured party
in all UCC financing statements filed or to be filed against Issuer and/or any
Subsidiary ("Financing Statements") and (2) the execution of any and all
Financing Statements by the Collateral Agent on behalf and for the benefit of
the Secured Parties) from time to time granted by Issuer and/or any Subsidiary
to secure the Obligations and (ii) authorize the Collateral Agent to take such
action as agent on their behalf and to exercise such powers and discretion under
this Agreement and the other Investor Documents as are delegated to Collateral
Agent and/or any Secured Party by the terms hereof and thereof, together with
such other powers and discretion as are incidental thereto, including, without
limitation, acquiring, holding, and enforcing any and all security interests and
liens on the Shared Collateral granted by the Issuer, any Subsidiary or any
other Person to secure any Obligations. To secure the payment and performance of
the Obligations, Issuer, Subsidiaries and Secured Parties hereby acknowledge,
confirm and agree that Collateral Agent has and shall continue to have for the
benefit of the Secured Parties a continuing security interest in all Shared
Collateral heretofore granted to the Collateral Agent, for the benefit of the
Secured Parties pursuant to the Security Documents and, to the extent not
otherwise granted to Collateral Agent, Issuer and Subsidiaries hereby assign,
pledge and grant to Collateral Agent, for the benefit of Secured Parties, a
continuing security interest in and to the Shared Collateral.
(b) The Collateral Agent may from time to time and at its sole
discretion appoint any other Person to act as the Collateral Agent's sub-agent
for purposes of holding any lien or security interest granted under the Security
Documents or exercising rights and remedies thereunder at the direction of the
Collateral Agent, subject to the terms of this Agreement. In this connection,
such sub-agents shall be entitled to the benefits of provisions of this
Agreement as though such sub-agents were the "Collateral Agent" under this
Agreement.
(c)62.1 Notwithstanding any provision to the contrary in the Investor
Documents, the Collateral Agent shall have, with respect to the Issuer and the
Subsidiaries, the duties and responsibilities expressly set forth in this
Agreement and the other Investor Documents, and no others, and the Collateral
Agent shall not by reason of this Agreement or any other Investor Document be a
trustee for, or have any fiduciary obligations to, the Issuer or any Subsidiary,
and no implied covenant, functions or responsibilities shall be read into this
Agreement or the other Investor Documents or otherwise exist against the
Collateral Agent.
(d)62.2 Collateral Agent shall not be required to exercise any
discretion or take any action under any Investor Document. Following the
occurrence and during the continuance of an Event of Default under and as
defined in any applicable Investor Document, the Collateral Agent shall have the
exclusive right to declare an Event of Default under and as defined in the
applicable Investor Document following receipt by Collateral Agent from any
Secured Party of a Notice of Default (as hereinafter defined) and may (or shall
within thirty (30) days (or such shorter period as is acceptable to the
Collateral Agent), following receipt of written notice from a Secured Party
directing Collateral Agent to exercise commercially reasonable remedies under
the applicable Investor Documents and applicable law, commence exercising its
right and remedies under the applicable Investor Documents or otherwise
authorize the requesting Secured Party to take such action on behalf of
Collateral Agent. Notwithstanding anything contained herein to the contrary, (x)
Collateral Agent shall not be required to take any action which exposes it to
personal liability or that is contrary to any Investor Document or applicable
law and (y) Collateral Agent shall not take any action following receipt of a
Notice of Default unless the Collateral Agent has received the approval of the
Secured Parties holding at least 50.1% of the Obligations (such Secured Parties,
the "Required Secured Parties") with respect to any such action. For purposes
hereof, the term "Notice of Default" means a notice delivered by a Secured Party
to Collateral Agent stating that an Event of Default under and as defined in any
Investor Document has occurred and is continuing beyond any applicable cure or
grace period. Notwithstanding the provisions of this Section 2 (d) and anything
else to the contrary in the Investor Documents (but subject to the immediately
following proviso), in the event that prior to the March 31, 2006, there shall
occur and be continuing an Event of Default pursuant to any Laurus Preference
Obligation or any 2004 Laurus Document which shall, as a result thereof, result
in an Event of Default under, and as defined in, the Laurus Defined Obligations
or the 2005 Laurus Documents (a "Cross Default") and Laurus shall deliver a
Notice of Default in respect of the Laurus Defined Obligations as a result of a
Cross Default (a "Cross Default Notice of Default"), the Collateral Agent shall
not have any right, power or authority, without first being in receipt of the
approval of each of the Required Sands Creditors and the Required Laurus
Creditors, to accelerate, liquidate, sell or otherwise act in respect of the
Shared Collateral (each, a "Remedial Action") for the purpose of obtaining the
payment of the Laurus Obligations (it being understood that nothing contained in
this sentence shall affect in any respect any right of Collateral Agent to take
any Remedial Action following the provision of a Notice of Default by Laurus as
a result of the occurrence of any Event of Default (other than a Cross Default)
under, or in respect of, any 2005 Laurus Document); provided that,
notwithstanding anything to the contrary contained in this sentence, (I) in the
event that a Cross Default Notice of Default is delivered on or after September
30, 2005 and prior to December 31, 2005, Laurus may take Remedial Actions to
collect up to 15% of any amounts received for the benefit of the Collateral
Agent on or after September 30, 2005 and prior to December 31, 2005 by the
Lockbox Bank (as defined in the 2005 Laurus Master Security Agreement) in any
Lockbox (as defined in the 2005 Laurus Master Security Agreement) and (II) in
the event that a Cross Default Notice of Default is delivered on or after
December 31, 2005 and prior to March 31, 2006, Laurus may take Remedial Actions
to collect up to 30% of any amounts received for the benefit of the Collateral
Agent on or after December 31, 2005 and prior to March 31, 2006 by the Lockbox
Bank in any Lockbox (as defined in the 2005 Laurus Master Security Agreement).
Any such collections pursuant to the immediately preceding proviso shall be
solely applied by the Collateral Agent to the reduction of the Laurus Preference
Obligations and shall not, cumulatively, exceed an amount equal to the Laurus
Collateral Preference Amount.
(e)62.3 In performing its functions and duties under this Agreement and
the other Investor Documents, Collateral Agent shall act solely as an agent of
the Secured Parties and does not assume and shall not be deemed to have assumed
any obligation toward or relationship of agency or trust with or for Issuer, any
Subsidiary or any other Person. Collateral Agent shall have no duties or
responsibilities except for those expressly set forth in this Agreement. The
duties of Collateral Agent shall be mechanical and administrative in nature and
Collateral Agent shall not have, nor be deemed to have, by reason of this
Agreement, any other Investor Document or otherwise, a fiduciary relationship in
respect of any Secured Party. Except as expressly set forth in this Agreement,
Collateral Agent shall not have any duty to disclose, and shall not be liable
for failure to disclose, any information relating to Issuer or any Subsidiary
that is communicated to or obtained by Collateral Agent or any of its affiliates
in any capacity.
(f)62.4 If Collateral Agent shall request instructions from any Secured
Party with respect to any act or action (including failure to act) in connection
with this Agreement or any other Investor Document, Collateral Agent shall be
entitled to refrain from such act or taking such action unless and until
Collateral Agent shall have received instructions from such Secured Party and
Collateral Agent shall not incur liability to any Person by reason of so
refraining. Collateral Agent shall be fully justified in failing or refusing to
take any action hereunder or under any other Investor Document (i) if such
action would, in the opinion of Collateral Agent, be contrary to law or the
terms of this Agreement or any other Investor Document or (ii) if Collateral
Agent shall not first be indemnified to its satisfaction against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Without limiting the foregoing, no Secured
Party shall have any right of action whatsoever against Collateral Agent as a
result of Collateral Agent's acting or refraining from acting hereunder or under
any other Investor Document in accordance with the instructions of the Secured
Parties.
(g)62.5 Anything in this Agreement or any other Investor Document to
the contrary notwithstanding, each Secured Party hereby agrees with each other
Secured Party that no Secured Party shall take any action to protect or enforce
its rights arising out of the Investor Documents (including exercising any
rights of setoff) without first obtaining the prior written consent of
Collateral Agent and the Required Secured Parties, it being the intent of the
Secured Parties that any such action to protect or enforce rights under the
Investor Documents shall be taken in concert and at the direction or with the
consent of Collateral Agent or Required Secured Parties, as applicable.
(h)62.6 The powers conferred on the Collateral Agent hereunder are
solely to protect the interest of the Secured Parties (including, without
limitation, the Collateral Agent in its individual Secured Party capacity) in
the Shared Collateral and, except as expressly set forth in the preceding clause
(d), shall not impose any duty upon the Collateral Agent to exercise any such
powers. Except for the safe custody of any Shared Collateral in its possession
and the accounting for moneys actually received by it hereunder, the Collateral
Agent shall have no duty as to any Shared Collateral, whether or not the
Collateral Agent or any Secured Party has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve the rights
against any parties or any other rights pertaining to any Shared Collateral.
(i)62.7 The Issuer and each Subsidiary hereby consent and agree, upon
request by the Collateral Agent, to execute and deliver such agreements,
instruments and documents as the Collateral Agent may deem desirable to create,
preserve and/or release the liens and security interests in the Shared
Collateral, including any release in connection with any sale, transfer or other
disposition of the Shared Collateral or any part thereof in accordance with any
Investor Document), or for application thereof pursuant to the terms of the
Investor Documents.
SECTION 3.63. Collateral Agent's Reliance. Etc. Neither the Collateral
Agent nor any of its directors, officers, partners, managers, members, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement or any other Investor Document,
except for its or their own gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable
decision). Without limiting the generality of the foregoing, the Collateral
Agent: (a) may consult with its counsel, independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (b) makes no warranty or representation to any
Secured Party, the Issuer or any of its Subsidiaries (hereinafter, the "Loan
Party") and shall not be responsible to any Loan Party for any statements,
warranties or representations made in, or in connection with, this Agreement;
(c) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of any Investor
Document, including, the Financing Statements, on the part of any Loan Party or
to inspect the property (including the books and records) of any Loan Party; (d)
shall not be responsible to any Loan Party for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Investor
Document, any of the Shared Collateral or any other instrument or document
furnished pursuant hereto or thereto or the perfection or collectibility of any
Shared Collateral; and (e) shall incur no liability under or in respect of any
Investor Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by electronic mail, telecopy, or otherwise)
believed by the Collateral Agent to be genuine and signed or sent by the proper
party or parties.
SECTION 4.64. The Collateral Agent in Its Individual Capacity. With
respect to the Obligations owing to it under the Investor Documents, the
Collateral Agent in its individual capacity as a Secured Party shall have the
same rights and powers, and have the same obligations, under the Investor
Documents as any other Secured Party and may exercise the same as though it were
not the Collateral Agent; and the term Secured Party shall, unless otherwise
expressly indicated, include Laurus or such other Person, or any other Person
serving as the Collateral Agent in its individual capacity. Laurus, or any other
Person serving as the Collateral Agent, and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept other business
engagements from and generally engage in any kind of business with any Loan
Party, any of its subsidiaries and any Person who may do business with or own
securities of any Loan Party, or any such subsidiary, all as if Laurus or such
other Person were not the Collateral Agent and without any duty to account to
any Loan Party.
SECTION 5.65. Resignation of the Collateral Agent. The Collateral Agent
may resign at any time as Collateral Agent under this Agreement by giving
written notice thereof to the Secured Parties. Following any such resignation,
the Collateral Agent shall give notice thereof to the Issuer; provided, that the
failure to give such notice shall not affect the validity or effectiveness of
such resignation. Upon any such resignation under this Agreement, the Secured
Parties shall have the right to appoint a successor Collateral Agent under this
Agreement. If no successor Collateral Agent shall have been so appointed by the
Secured Parties, and shall have accepted such appointment, within 30 days after
the retiring Collateral Agent's giving of notice of resignation, then the
retiring Collateral Agent may, on behalf of the Secured Parties, appoint a
successor Collateral Agent. Upon the acceptance of any appointment as Collateral
Agent hereunder by a successor Collateral Agent and upon the execution and
filing or recording of such financing statements, or amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Secured Parties may request, in order to continue the perfection of the liens
granted by the Security Documents in accordance with the terms thereof, such
successor Collateral Agent shall succeed to and become vested with, all the
rights, powers, discretion, privileges and duties of the retiring Collateral
Agent and the retiring Collateral Agent shall be discharged from its duties and
obligations under this Agreement without any other or further act or deed on the
part of such former Collateral Agent. After any retiring Collateral Agent's
resignation hereunder as Collateral Agent, the provisions of this Agreement
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Collateral Agent under this Agreement.
SECTION 6.66. Sharing of Security Interests. Any and all security
interests, liens, rights and interests of the Secured Parties, whether now or
hereafter arising or existing, in or on any or all of the Shared Collateral
shall be subject to the priority set forth in Section 8, notwithstanding: (a)
the time, order, manner or method of creation, attachment or perfection of the
respective security interests and/or liens granted to the Collateral Agent or a
Secured Party in or on any or all of the property or assets of the Issuer or any
Subsidiary in connection with the transactions contemplated by the Investor
Documents, (b) the time or manner of the filing of their respective financing
statements, (c) whether the Collateral Agent, a Secured Party or any bailee or
agent thereof holds possession of any or all of the property or assets of the
Issuer, (d) the dating, execution or delivery of any agreement, document or
instrument granting the Secured Parties or the Collateral Agent security
interests and/or liens in or on any or all of the property or assets of the
Issuer or any Subsidiary or (e) any provision of the UCC or any other applicable
law. For purposes of the foregoing, any claim of a right of set-off shall be
treated in all respects as a security interest and no claimed right of set-off
shall be asserted to defeat or diminish the rights or priorities provided for
herein.
SECTION 7.67. Sharing of Payments. In the event any moneys are
collected by the Collateral Agent upon any collection, sale or other disposition
of any Shared Collateral, the Secured Party receiving such payment shall receive
and hold the same in trust, as trustee, for the benefit of the Secured Parties
and shall forthwith deliver the same to the Collateral Agent. Distribution of
such moneys referred to in the immediately preceding sentence, shall be applied
by the Collateral Agent in accordance with Section 8. Notwithstanding anything
contained in this Agreement or any other Investor Document to the contrary, (i)
no Sands Creditor shall be entitled to or have any interest or claim whatsoever
in (x) the Closing Payment (as defined in the 2005 Laurus Securities Purchase
Agreement identified as an Investor Document on Schedule B-2 hereto) paid by
Issuer to Laurus Capital Management, LLC in connection with the transactions
contemplated by the Laurus Documents or (y) any Collateral other than the Shared
Collateral and (ii) no Laurus Creditor shall be entitled to or have any interest
or claim whatsoever in the $400,000 payment to be made at closing by the Issuer
to Xxxxxxx & Company (UK) Ltd. (as such payment is identified in the 2005 Sands
Securities Purchase Agreement identified as an Investor Document on Schedule C
hereto) in connection with the transactions contemplated by the Sands Documents.
SECTION 8.68. Application of Proceeds. (a) All moneys collected by the
Collateral Agent upon any collection, sale or other disposition of any Shared
Collateral shall be applied as follows:
(i) (a) first, to the payment of (x) any and all sums advanced
by the Collateral Agent in order to preserve or protect the Shared
Collateral or preserve or protect its security interest in the
Collateral, (y) the reasonable fees and expenses of the Collateral
Agent of foreclosing, re-taking, holding, preparing for sale or lease,
selling or otherwise disposing or realizing on the Shared Collateral,
or of any exercise by the Collateral Agent of its rights or remedies
hereunder or under the other Investor Documents, together with
reasonable attorneys' fees and expenses and court costs, incurred by
Collateral Agent or any Secured Party in connection therewith;
3 second, to the extent moneys remain
after the application pursuant to the
preceding clauses (i), to the payment of
the Laurus Preference Obligations in an
amount equal to the Laurus Collateral
Preference Amount at such time;
4 third, to the extent moneys remain after
the application pursuant to the
preceding clauses (i) and (ii), to the
payment of any and all outstanding
Defined Obligations owing to each
Secured Party in accordance with such
Secured Party's Pro Rata Share; and
5 fourth, after satisfaction and payment
in full of all Defined Obligations
resulting from payments made pursuant to
the preceding clause (iii), to the
extent moneys remain after the
application pursuant to the preceding
clauses (i) through (iii), inclusive,
any surplus then remaining shall be
applied by the Collateral Agent to then
remaining outstanding Laurus Obligations
until all outstanding obligations have
been repaid in full, after which any
remainder shall be paid to the Issuer or
as otherwise required by law or as a
court of competent jurisdiction shall
direct.
(b)68.2 For purposes of determining the amount payable to each Secured
Party, the Collateral Agent shall be entitled to request each Secured Party to
furnish it with a written certification of the amount of Obligations then owed
to it and shall be entitled to rely upon the amounts stated therein in making
such distribution.
(c)68.3 For purposes of applying payments received in accordance with
this Section 8, the Collateral Agent shall be entitled to rely upon the Secured
Parties for a determination (which the Secured Parties by their acceptance of
the benefits of this Agreement shall be obligated to provide upon request of the
Collateral Agent) of the outstanding Obligations owed to each Secured Party.
Unless it has actual knowledge to the contrary, the Collateral Agent, in acting
hereunder, shall be entitled to assume that no obligations other than principal
and interest are owing to any Secured Party.
6 Notwithstanding anything to the contrary
contained in this Section 8, elsewhere
in this Agreement or in any other
Investor Document, all Laurus Collateral
(other than the Shared Collateral)
assigned to Laurus or any other Laurus
Creditor to secure the Laurus
Obligations and/or any other obligation
owed by an Loan Party to Laurus shall be
solely for the benefit of the Laurus
Creditors, and not any Sands Creditor.
SECTION 9.69. Waivers and Modifications of Documents. The terms and
conditions of this Agreement shall not be amended, modified or waived in any
respect without the prior written consent of each of (x) the Laurus Creditors
holding at least 50.1% of the Laurus Obligations (the "Required Laurus
Creditors") and (y) the Sands Creditors holding at least 50.1% of the Bridge
Loan Obligations (the "Required Sands Creditors"). Furthermore, (i) no term or
condition of any Sands Document shall be amended, modified or waived in any
respect without the prior written consent of the Required Laurus Creditors and
(ii) no term or condition of any 2005 Laurus Document shall be amended in any
respect which would be materially adverse to the value of the Shared Collateral
without the prior written consent of the Required Sands Creditors. Without the
prior written consent of the Required Secured Creditors, no Secured Party shall
provide any additional indebtedness to, or extend any other credit to, the
Issuer or any of its Subsidiaries in excess of the amount extended pursuant to
the Investor Documents (as such Investor Documents are in effect on the date
hereof).
SECTION 10.70. Indemnity and Expense. (a) The Secured Parties hereby
indemnify the Collateral Agent ratably (in accordance with their respective Pro
Rata Share) from and against any and all claims, losses and liabilities growing
out of or resulting from this Agreement and the other Investor Documents,
including, without limitation, enforcement of this Agreement and the other
Investor Documents, except claims, losses or liabilities resulting from the
Collateral Agent's gross negligence or willful misconduct as determined by a
final judgment of a court of competent jurisdiction. The Issuer and its
Subsidiaries hereby acknowledge that all such claims, losses and liabilities
shall constitute Obligations secured by the Shared Collateral.
(b) To the extent such amounts are not paid by the Issuer or any of its
Subsidiaries in accordance with their obligations under the respective Investor
Documents, the Secured Parties will upon demand pay (in accordance with their
respective Pro Rata Share) to the Collateral Agent the amount of any and all
unreimbursed expenses, including the fees and expenses of its counsel and of any
experts and agents, which the Collateral Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody, maintenance,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Shared Collateral, (iii) the exercise or
enforcement of any of the rights of the Collateral Agent or any Secured Party
hereunder or under any other Investor Document, or (iv) the failure by the
Issuer or any of its Subsidiaries to perform or observe any of the provisions
hereof. The Issuer and its Subsidiaries hereby acknowledge that all such
expenses paid by the Secured Parties shall constitute Obligations secured by the
Shared Collateral.
SECTION 11.71. Notices. Whenever it is provided herein or in the other
Investor Documents that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other parties, or whenever any of the parties desires to
give or serve upon any other parties any communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be deemed to have been validly
served, given or delivered: (a) upon the earlier of actual receipt and three (3)
business days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid; (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided in this Section
11); (c) one (1) business day after deposit with a reputable overnight courier
with all charges prepaid or (d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number indicated in Schedule E or to such other address (or
facsimile number) as may be substituted by notice given as herein provided. The
giving of any notice required hereunder may be waived in writing by the party
entitled to receive such notice.
SECTION 12.72. Continuing Agreement; Assignments. This Agreement is a
continuing agreement and shall (a) remain in full force and effect until the
indefeasible payment in full of the Obligations and irrevocable termination of
the Investor Documents and (b) be binding upon the Secured Parties, Issuer and
Subsidiaries, their successors and assigns, and (c) inure, together with the
rights and remedies of the Collateral Agent hereunder, to the benefit of the
Collateral Agent and its respective successors, transferees and assigns.
SECTION 13.73. Governing Law; Counterparts. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, MAY BE EXECUTED IN SEVERAL
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL, AND SHALL INURE
TO THE BENEFIT OF AND BE BINDING UPON THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
EXCEPT AS SET FORTH BELOW IN THIS SECTION 11.1, ANY AND ALL DISPUTES,
CONTROVERSIES AND CLAIMS THAT THE ISSUER OR ANY OF ITS SUBSIDIARIES MAY ASSERT
AGAINST ANY SECURED PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER INVESTOR DOCUMENT SHALL BE DETERMINED EXCLUSIVELY BY ARBITRATION (EACH
SUCH ARBITRATION, AN "ARBITRATION") IN NEW YORK CITY BEFORE A PANEL OF THREE
NEUTRAL ARBITRATORS AGREED TO BY THE REQUIRED SECURED PARTIES AND THE ISSUER
(COLLECTIVELY, THE "ARBITRATORS") IN ACCORDANCE WITH AND PURSUANT TO THE THEN
EXISTING COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
THE ISSUER (ON ITS BEHALF AND ON BEHALF OF ITS SUBSIDIARIES) HEREBY IRREVOCABLY
WAIVES ANY RIGHT TO ASSERT SUCH CLAIMS IN ANY OTHER FORUM. THE ARBITRATORS SHALL
HAVE THE POWER IN THEIR DISCRETION TO AWARD SPECIFIC PERFORMANCE OR INJUNCTIVE
RELIEF (BUT SHALL NOT HAVE THE POWER TO RENDER ANY INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES) AND REASONABLE ATTORNEYS' FEES AND EXPENSES TO ANY PARTY IN
ANY ARBITRATION. THE ARBITRATORS MAY NOT CHANGE, MODIFY OR ALTER ANY EXPRESS
CONDITION, TERM OR PROVISION OF THIS AGREEMENT OR OF ANY OTHER INVESTOR DOCUMENT
NOR SHALL THEY HAVE THE POWER TO RENDER ANY AWARD AGAINST ANY SECURED PARTY THAT
WOULD HAVE SUCH EFFECT. EACH ARBITRATION AWARD SHALL BE FINAL AND BINDING UPON
THE PARTIES SUBJECT THERETO AND JUDGMENT MAY BE ENTERED THEREON IN ANY COURT OF
COMPETENT JURISDICTION. THE SERVICE OF ANY NOTICE, PROCESS, MOTION OR OTHER
DOCUMENT IN CONNECTION WITH AN ARBITRATION OR FOR THE ENFORCEMENT OF ANY
ARBITRATION AWARD MAY BE MADE IN THE SAME MANNER AS COMMUNICATIONS MAY BE GIVEN
UNDER SECTION 11 HEREOF. NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS
SECTION 13 NOR ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT OR IN ANY OTHER
INVESTOR DOCUMENT SHALL LIMIT IN ANY MANNER WHATSOEVER ANY SECURED PARTY'S RIGHT
TO COMMENCE AN ACTION AGAINST OR IN CONNECTION WITH THE ISSUER, ANY OF ITS
SUBSIDIARIES OR THEIR RESPECTIVE PROPERTIES IN ANY COURT OF COMPETENT
JURISDICTION OR OTHERWISE UTILIZE JUDICIAL PROCESS IN CONNECTION WITH OR ARISING
OUT OF SUCH SECURED PARTY'S RIGHTS AND REMEDIES UNDER THIS AGREEMENT AND/OR ANY
OTHER INVESTOR DOCUMENT OR OTHERWISE (ANY SUCH ACTION, A "COURT ACTION"). COURT
ACTIONS MAY BE BROUGHT BY THE SECURED PARTIES IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION AND THE ISSUER (ON ITS BEHALF AND ON BEHALF OF ITS
SUBSIDIARIES) IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH STATE AND FEDERAL
COURTS AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE OF INCONVENIENT FORUM OR LACK
OF PERSONAL JURISDICTION IN SUCH FORUM OR RIGHT OF REMOVAL OR RIGHT TO JURY
TRIAL UNDER ANY APPLICABLE LAW OR DECISION OR OTHERWISE. SERVICE OF ANY NOTICE,
PROCESS, MOTION OR OTHER DOCUMENT IN CONNECTION WITH A COURT ACTION MAY BE MADE
IN THE SAME MANNER AS COMMUNICATIONS MAY BE GIVEN UNDER SECTION 11. IN ADDITION,
ANY SECURED PARTY MAY SERVE PROCESS IN ANY OTHER MANNER PERMITTED UNDER
APPLICABLE LAW.
[SIGNATURE LINES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
LAURUS MASTER FUND, LTD.,
as a Secured Party and Collateral Agent
By: /s/
---------------------------------------
Authorized Officer
Name:
Title:
Sands Brothers Venture Capital LLC
Sands Brothers Venture Capital II, LLC
Sands Brothers Venture Capital III, LLC
Sands Brothers Venture Capital IV, LLC
By: /s/
---------------------------------------
Authorized Officer
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: CEO
VOXX CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: CEO
XXXXXXXXXXXXXXXXX
SCHEDULE A
SECURED PARTIES
7 Laurus Creditors
Laurus Master Fund, Ltd., a Cayman Islands corporation.
II. Sands Creditors
-------------------------------------------------------
SANDS BROTHERS VENTURE CAPITAL LLC
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 $100,000
Fax: 000 000 0000
Tax Id: 13 4102660
-------------------------------------------------------
SANDS BROTHERS VENTURE CAPITAL II LLC
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 $50,000
Fax: 000 000 0000
Tax Id: 13 4110488
-------------------------------------------------------
SANDS BROTHERS VENTURE CAPITAL III LLC
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 $1,200,000
Fax: 000 000 0000
Tax Id: 13 4137586
-------------------------------------------------------
SANDS BROTHERS VENTURE CAPITAL IV LLC
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 $150,000
Fax: 000 000 0000
Tax Id: 13 4157861
-------------------------------------------------------
SCHEDULE B-1
2004 LAURUS DOCUMENTS
All of the following documents, instruments and agreements, as amended,
modified, supplemented and/or restated from time to time:
(i) this Agreement;
(ii) the Securities Purchase Agreement, dated as of May 14,
2004, by and between EPXR and Laurus (the "2004 Laurus Securities
Purchase Agreement");
(iii) the Secured Convertible Term Note dated May 14, 2004
made by the EPXR in favor of Laurus (the "2004 Laurus Note");
(iv) Warrant I and Warrant II, each dated May 14, 2004, and
each other warrant dated after May 14, 2004, in each case issued by
EPXR to Laurus in connection with the 2004 Laurus Securities Purchase
Agreement (collectively, the "2004 Warrants");
(v) the Master Security Agreement dated as of May 14, 2004 by
and among the Company, certain Subsidiaries of the Company and Laurus
(the "2004 Laurus Master Security Agreement");
(vi) the Registration Rights Agreement relating to the 2004
Laurus Securities Purchase Agreement dated as of May 14, 2004 between
EPXR and Laurus (the "2004 Laurus Registration Rights Agreement);
(vii) the Subsidiary Guaranty dated as of May 14, 2004 made by
certain Subsidiaries of EPXR (the "2004 Laurus Subsidiary Guaranty");
(viii) the Stock Pledge Agreement dated as of May 14, 2004
among EPXR, certain Subsidiaries of EPXR and Laurus (the "2004 Laurus
Stock Pledge Agreement");
(ix) the Escrow Agreement dated as of May 14, 2004 among EPXR,
Laurus and the escrow agent referred to therein;
(x) the Laurus Restricted Account Agreement dated as of May
14, 2004 among EPXR, the Purchaser and North Fork Bank (including the
side letter dated as of the date hereof and related thereto, the "2004
Laurus Restricted Account Agreement");
(xi) the Reserve Restricted Account Agreement dated as of May
14, 2004 among EPXR, Laurus and North Fork Bank (the "2004 Laurus
Reserve Restricted Account Agreement");
(xii) (x) security agreements executed by Foreign Subsidiaries
of EPXR in favor of Laurus granting Laurus a security interest in all
of such Foreign Subsidiaries assets and (y) guaranties made by the
Foreign Subsidiaries of EPXR guaranteeing the obligations of EPXR set
forth in the 2004 Laurus Securities Purchase Agreement, the 2004 Note
and the other Related Agreements referred to in the 2004 Laurus
Securities Purchase Agreement (which agreements and guaranties, in each
case, shall be governed by the jurisdiction of organization of each
such Foreign Subsidiary (the preceding clauses (x) and (y),
collectively, the "2004 Laurus Foreign Documentation"); and
(xiii) all other agreements related to the 2004 Laurus
Securities Purchase Agreement and the 2004 Laurus Note.
SCHEDULE B-2
2005 LAURUS DOCUMENTS
(i) this Agreement;
(ii) the Securities Purchase Agreement, dated as of the date
hereof, by and between the Issuer and Laurus (the "2005 Laurus
Securities Purchase Agreement");
(iii) the Secured Convertible Term Note dated as of the date
hereof, made by the Issuer in favor of Laurus (the "2005 Laurus Note");
(iv) that certain Common Stock Purchase Warrant dated the date
hereof issued by Voxx to Laurus in connection with the 2005 Securities
Purchase Agreement (collectively, the "2005 Laurus Warrant");
8 the Master Security Agreement dated as of
the date hereof by and among EPXR, certain
Subsidiaries of EPXR and Laurus (the "2005
Laurus Master Security Agreement");
(vi) (x) the EPXR Registration Rights Agreement relating to
the 2005 Securities Purchase Agreement dated as of the date hereof
between EPXR and Laurus (the "2005 Laurus EPXR Registration Rights
Agreement) and (y) the VOXX Registration Rights Agreement relating to
the 2005 Securities Purchase Agreement dated as of the date hereof
between Voxx and Laurus (the "2005 Laurus VOXX Registration Rights
Agreement)
9 the Guaranty dated as of the date hereof
made by EPXR and certain Subsidiaries of
EPXR (the "2005 Laurus Guaranty");
(viii) the Stock Pledge Agreement dated as of the date hereof
among the EPXR, certain Subsidiaries of EPXR and Laurus (the "2005
Laurus Stock Pledge Agreement");
(ix) the Escrow Agreement dated as of the date hereof among
EPXR, Laurus and the escrow agent referred to therein;
10 that certain Option dated the date hereof
issued by Voxx to Laurus (the "2005 Laurus
Option")
(xi) (x) security agreements executed by Foreign Subsidiaries
of the Issuer in favor of Laurus granting Laurus a security interest in
all of such Foreign Subsidiaries assets and (y) guaranties made by the
Foreign Subsidiaries of the Issuer guaranteeing the obligations of the
Issuer set forth in the 2005 Securities Purchase Agreement, the 2005
Note and the other Related Agreements referred to in the 2005
Securities Purchase Agreement (which agreements and guaranties, in each
case, shall be governed by the jurisdiction of organization of each
such Foreign Subsidiary (the preceding clauses (x) and (y),
collectively, the "2005 Laurus Foreign Documentation"); and
(xii) all other agreements entered into in connection with the
2005 Laurus Securities Purchase Agreement and the 2005 Laurus Note.
SCHEDULE C
SANDS DOCUMENTS
All of the following documents, instruments and agreements, as amended,
modified, supplemented and/or restated from time to time:
11 this Agreement.
(ii) the Securities Purchase Agreement, dated as of the date
hereof, by and between the Issuer and the Sands Creditors (the "2005
Sands Securities Purchase Agreement");
(iii) the four (4) Secured Convertible Term Notes dated as of
the date hereof, made by the Issuer in favor of each of the Sands
Creditors (the "2005 Sands Notes");
(iv) that certain Common Stock Purchase Warrant dated the date
hereof issued by Voxx to Xxxxxxx & Company (UK) Ltd. ("Xxxxxxx") in
connection with the 2005 Sands Securities Purchase Agreement
(collectively, the "2005 Xxxxxxx Warrant");
12 the Master Security Agreement dated as of the date
hereof by and among VOXX, certain Subsidiaries of
VOXX and the Sands Creditors (the "2005 Sands
Master Security Agreement");
(vi) (x) the EPXR Registration Rights Agreement relating to
the 2005 Securities Purchase Agreement dated as of the date hereof
between EPXR, the Sands Creditors and Xxxxxxx (the "2005 Sands EPXR
Registration Rights Agreement) and (y) the VOXX Registration Rights
Agreement relating to the 2005 Securities Purchase Agreement dated as
of the date hereof between VOXX, the Sands Creditors and Xxxxxxx (the
"2005 Sands /LaidlawVOXX Registration Rights Agreement)
13 the Guaranty dated as of the date hereof made by
EPXR and VOXX and certain Subsidiaries of EPXR and
VOXX (the "2005 Sands Guaranty");
(viii) the Stock Pledge Agreement dated as of the date hereof
among EPXR and VOXX, certain Subsidiaries of VOXX and the Sands
Creditors (the "2005 Sands Stock Pledge Agreement");
(ix) the Escrow Agreement dated as of the date hereof among
EPXR, Laurus and the escrow agent referred to therein;
14 that certain Option dated the date hereof issued
by Voxx to the Sands Creditors (the "2005 Sands
Option")
(xi) (x) security agreements executed by Foreign Subsidiaries
of the Issuer in favor of the Sands Creditors granting the Sands
Creditors a security interest in all of such Foreign Subsidiaries
assets and (y) guaranties made by the Foreign Subsidiaries of the
Issuer guaranteeing the obligations of the Issuer set forth in the 2005
Sands Securities Purchase Agreement, the 2005 Sands Notes and the other
Related Agreements referred to in the 2005 Sands Securities Purchase
Agreement (which agreements and guaranties, in each case, shall be
governed by the jurisdiction of organization of each such Foreign
Subsidiary (the preceding clauses (x) and (y), collectively, the "2005
Sands Foreign Documentation"); and
(xii) all other agreements entered into in connection with the
2005 Sands Securities Purchase Agreement and the 2005 Sands Notes.
SCHEDULE D
2005 SECURITY DOCUMENTS
All of the following documents, instruments and agreements, as amended,
modified, supplemented and restated from time to time:
2005 Laurus Master Security Agreement
2005 Laurus Stock Pledge Agreement
2005 Laurus Guaranty
2005 Laurus Foreign Documentation
2005 Sands Master Security Agreement
2005 Sands Stock Pledge Agreement
2005 Sands Guaranty
2005 SANDS FOREIGN DOCUMENTATION
SCHEDULE E
NOTICE INFORMATION
Name and Addresses
1. Laurus Master Fund, Ltd.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Xxxxxxx & Company (UK) Ltd.
2. 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Mr. Marc Koplic
Facsimile: 000-000-0000
3. Epixtar Corp.
Voxx Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Legal Department
Facsimile: 000-000-0000
