Exhibit 10.40
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this
“Agreement”) is entered into effective as of March 31,
2009, by and among The Brown Family Trust, an Alaskan Trust
(“Lender”), WAA, LLC, a Nevada limited liability
company (“WAA”), White Star LLC (“White
Star”), SRZ Trading LLC (“SRZ”), Mueller Trading
LP (“Mueller”), Jason Lyons (“Lyons”; White
Star, SRZ, Mueller, and Lyons collectively, the “White Star
Lenders”), Voyant International Corporation, a Nevada
corporation (“Borrower”), RocketStream, Inc., a Nevada
corporation (“RSI”), and Zeros & Ones Technologies,
Inc., a Delaware corporation (“ZOTI”; RSI and ZOTI
collectively, the “Guarantors”).
WHEREAS, Borrower has heretofore borrowed
the aggregate principal amount of $3,702,703 from Lender under
three Bridge Loans (defined below); and
WHEREAS, Borrower has borrowed $350,000
from WAA (the “WAA Loan”) pursuant to the terms of a
Secured Promissory Note, dated November 9, 2006 (the “WAA
Note”); and
WHEREAS, Lender, WAA, and Borrower are
parties to that certain Second Amended and Restated Intercreditor
Agreement dated February 29, 2008 (the “WAA Intercreditor
Agreement”); and
WHEREAS, Borrower has borrowed $300,000
from the White Star Lenders (the “White Star Loans”)
pursuant to the terms of four separate Secured Notes, each dated
January 26, 2009 (the “White Star Notes”);
and
WHEREAS, the White Star Lenders, WAA, and
Borrower are parties to that certain Intercreditor Agreement dated
January 26, 2009 (the “White Star Intercreditor
Agreement”); and
WHEREAS,
Borrower has requested that Lender extend the maturity of one of
the Bridge Loans (the Bridge Loan related to the $2,000,000 Note
(as defined below)) and Lender is willing to do so on the terms and
conditions as set forth in an Amendment to Second Amended and
Restated Secured Promissory Note and Second Amended and Restated
Loan Agreement (the “Lender Amendment”) dated as of
February 20, 2009; and
WHEREAS, among the terms and conditions
contained in the Lender Amendment is the execution and delivery of
an intercreditor agreement; and
WHEREAS, this Agreement is intended to be
the intercreditor agreement referenced in the Lender Amendment;
and
WHEREAS, WAA and the White Star Lenders
will each receive benefits from extension of the Bridge Loans and
the other modifications contemplated in the Lender Amendment;
and
WHEREAS, Lender’s agreement to
modify the Bridge Loans and enter into the Lender Amendment was
expressly conditioned on WAA and the White Star Lenders agreeing to
enter into this Agreement to, among other things, establish the
relative priorities of the loans made by Lender, WAA, and the White
Star Lenders to Borrower and the collateral related to each such
loan; and
WHEREAS, Borrower has requested that
Lender further extend the maturity of the Bridge Loan related to
the $2,000,000 Note (as defined below) and modify certain of the
terms thereof and Lender is willing to do so on the terms and
conditions as set forth in an Amendment to Second Amended and
Restated Secured Promissory Note and Second Amended and Restated
Loan Agreement (the “Second Lender Amendment”) dated
concurrently herewith; and
WHEREAS, Borrower has requested that
Lender extend the maturity of the Bridge Loan related to the
$702,703 Note (as defined below) and modify certain of the terms
thereof and Lender is willing to do so on the terms and conditions
as set forth in an Amendment to Amended and Restated Secured
Promissory Note and Amended and Restated Loan Agreement (the
“Third Lender Amendment”) dated concurrently herewith;
and
WHEREAS, Borrower has requested that
Lender modify certain of the terms of the Bridge Loan related to
the $1,000,000 Note (as defined below) and Lender is willing to do
so on the terms and conditions as set forth in an Amendment to
Amended and Restated Secured Promissory Note and Amended and
Restated Loan Agreement (the “Fourth Lender Amendment”)
dated concurrently herewith; and
WHEREAS, Borrower has requested that the
White Star Lenders extend the maturity of the White Star Loans to
not earlier than October 14, 2009, and the White Star Lenders are
willing to do so on the terms and conditions as set forth in an
Amendment relating to the White Star Notes (the “White Star
Amendment”); and
WHEREAS, among the terms and conditions
contained in the Second Lender Amendment, the Third Lender
Amendment, and the Fourth Lender Amendment is the execution and
delivery of an intercreditor agreement; and
WHEREAS, this Agreement is intended to be
the intercreditor agreement referenced in the Second Lender
Amendment, the Third Lender Amendment, and the Fourth Lender
Amendment;
NOW, THEREFORE, in consideration of the
foregoing, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto hereby agree as follows:
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1.
Definitions . Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in
the Collateral Agreement (defined below). The following terms
in this Agreement shall have the following meanings:
“$1,000,000 Note” means that
certain Secured Promissory Note, in the original principal amount
of $1,000,000, dated as of October 14, 2008, executed and delivered
by Borrower and payable to the order of Lender, pursuant to the
terms of the $1,000,000 Loan Agreement.
“$1,000,000 Loan Agreement”
means that certain Loan Agreement, dated as of October 14, 2008,
between Borrower and Lender.
“$2,000,000 Note” means that
certain Second Amended and Restated Secured Promissory Note, in the
original principal amount of $2,000,000, dated as of February 29,
2008, executed and delivered by Borrower and payable to the order
of Lender, pursuant to the terms of the $2,000,000 Loan
Agreement.
“$2,000,000 Loan Agreement”
means that certain Second Amended and Restated Loan Agreement,
dated as of February 29, 2008, between Borrower and
Lender.
“$702,703 Note” means that
certain Amended and Restated Secured Promissory Note, in the
original principal amount of $702,703, dated as of June 9, 2008,
executed and delivered by Borrower and payable to the order of
Lender, pursuant to the terms of the $702,703 Loan
Agreement.
“$702,703 Loan Agreement”
means that certain Amended and Restated Loan Agreement, dated as of
June 9, 2008, between Borrower and Lender.
“Bridge Loan Documents”
means, collectively, the $1,000,000 Note, the $1,000,000 Loan
Agreement, the $2,000,000 Note, the $2,000,000 Loan Agreement, the
$702,703 Note, the $702,703 Loan Agreement and the related
documents entered into in connection therewith as the same may be
amended or modified from time to time.
“Bridge Loans” means,
collectively, the loans and extensions of credit by under, or as
evidenced by, the $1,000,000 Note, the $1,000,000 Loan Agreement,
the $2,000,000 Note, the $2,000,000 Loan Agreement, the $702,703
Note, and the $702,703 Loan Agreement.
“Collateral” means any
and all property, rights or interests pledged as security for any
of the Senior Debt, the Subordinate Debt, or the WAA
Debt.
“Collateral Agreement” means
that certain Guarantee and Collateral Agreement dated concurrently
herewith made by Borrower and each of the Guarantors in favor of
Lender.
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“Enforcement Notice” means a
notice by any Subordinate Lender to the Senior Lender that a
default under the Subordinate Debt has occurred and that one or
more Subordinate Lenders intends to enforce its remedies on account
thereof. Such notice shall contain a reasonable description
of the nature of the default and the action Subordinate Lender
proposes to take with respect thereto.
“Insolvency Proceedings” has
the meaning given to such term in Section 3.
“Lender Loan Documents” means
the Bridge Loan Documents, the Lender Amendment, the Second Lender
Amendment, the Third Lender Amendment, the Fourth Lender Amendment,
Collateral Agreement, and all other instruments and documents
executed or delivered in connection therewith and all instruments
and documents executed or delivered in connection with the Bridge
Loans, as any of the same may be amended or modified from time to
time.
“Lien Enforcement Action”
shall mean any action, whether legal, equitable, judicial,
non-judicial, or otherwise, to enforce any assignment, lien,
security interest, or other encumbrance now or in the future
securing all or any indebtedness or other obligations,
including, without limitation, exercise of any assignments of
production or the right to receive proceeds thereof, division
orders or letters in lieu of division orders, any offset,
repossession, foreclosure, public sale, private sale, or retention
of all or any part of an asset for any indebtedness or
obligations.
“Restricted Person” means
Borrower, each Guarantor, and each direct or indirect subsidiary of
Borrower or any Guarantor.
“Senior Debt” means all
indebtedness, liabilities, and obligations of every kind or nature,
absolute or contingent, now existing or hereafter arising, of the
Restricted Persons owed to Lender under the Lender Loan Documents,
including without limitation the principal of, and interest on
(including any interest accruing after the commencement of any
bankruptcy, insolvency, or similar proceeding with respect to any
Restricted Person whether or not allowed as a claim in such
proceeding) all loans, letters of credit reimbursement obligations,
premiums, fees, charges, expenses, and/or indemnities arising under
or in connection with the Lender Loan Documents as same may be
amended, modified, extended or restated from time to
time.
“Senior Debt Termination
Date” means the first date on which all Senior Debt has been
indefeasibly paid in full, other than contingent indemnification
obligations with respect to which no claims have been made by
Senior Lender against Borrower or any Guarantor.
“Senior Lender” means Lender,
its successors and assigns, and any person or entity who refinances
or acquires all or any portion of the Senior Debt.
“Senior Loan Documents” means
the Lender Loan Documents and all other instruments and documents
heretofore entered into between Lender and Borrower, any
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Guarantor, or any other Restricted
Person, as any of the same may be amended or modified from time to
time (to the extent any such amendment or modification is not in
violation of the terms of this Agreement).
“Subordinate Debt” means all
indebtedness and other obligations now and from time to time
hereafter owing by the Restricted Persons to Subordinate Lender,
including without limitation the indebtedness and obligations
evidenced by the White Star Notes and including principal,
interest, fees, and charges and all other present or future
liabilities, indebtedness, or obligations of the Restricted Persons
to Subordinate Lenders as same may be, subject to Section 5 hereof,
amended, modified, extended or restated from time to
time.
“Subordinate Debt Enforcement
Action” means (i) acceleration of payment of any portion of
the Subordinate Debt, (ii) any judicial action or proceeding
against Borrower or any of its property with respect to any portion
of the Subordinate Debt or any action or proceeding by Subordinate
Lender with respect to the disposition of any Collateral, (iii)
joinder by Subordinate Lender with any creditor in initiating any
Insolvency Proceeding with respect to any Restricted Party, and
(iv) the exercise of any other remedy with respect to any portion
of the Subordinate Debt.
“Subordinate Lender” means
each of the White Star Lenders, and each of their respective
successors and assigns and any person or entity who refinances or
acquires all or any portion of the Subordinate Debt.
“Subordinate Loan Documents”
means the White Star Notes, the White Star Amendment, and the
related documents entered into in connection therewith as the same
may be amended or modified from time to time (to the extent any
such amendment or modification is not in violation of the terms of
this Agreement).
“Subordinate Notes” means the
White Star Notes as same may be supplemented, amended, modified,
restated, or assigned and all other notes given in substitution
therefor or in modification, renewal, extension, or restatement
thereof in whole or in part (to the extent any such modification,
renewal or extension is not in violation of the terms of this
Agreement or the Lender Loan Documents).
“WAA Collateral” means the
“Collateral” as defined in the WAA Note as it exists
and is in force on the date hereof.
“WAA Debt” means all
indebtedness currently owed by Borrower to WAA under the WAA Note
as it exists and is in force on the date hereof.
“WAA Loan Documents” means
the WAA Note and the related documents entered into in connection
therewith as the same may be amended or modified from time to time
(to the extent any such amendment or modification is not in
violation of the terms of this Agreement).
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2.
Subordination of Subordinate Debt and
WAA Debt to Senior Debt .
Notwithstanding any other provision of any Subordinate Loan
Document, WAA Loan Document, or any other document executed by any
Restricted Person in connection therewith, or any Collateral now or
hereafter securing the same, all Subordinate Debt and WAA Debt is
and shall be subordinate and junior in right of payment, to the
extent and in the manner hereinafter set forth, to the prior
indefeasible payment in full of all Senior Debt. Except as
and to the extent provided in Sections 4, 5, and 6 below, neither
Subordinate Lender nor WAA will ask, demand, sue for, take, or
receive from any Restricted Person, by set-off or in any other
manner, direct or indirect payment (whether in cash or property) of
the whole or any part of the Subordinate Debt or the WAA Debt, or
any transfer of any property in payment of or as security therefor,
until the Senior Debt Termination Date.
3.
Distributions in Liquidation and
Bankruptcy . In the
event of any distribution, division, or application, partial or
complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of the Restricted
Persons or the proceeds thereof (including any assets now or
hereafter securing any Subordinate Debt) to creditors of the
Restricted Persons or upon any indebtedness of the Restricted
Persons, as a result of the liquidation, dissolution, or other
winding up, partial or complete, of the Restricted Persons, or as a
result of any receivership, insolvency, or bankruptcy proceeding,
or assignment for the benefit of creditors or marshaling of assets,
or as a result of any proceeding by or against the Restricted
Persons for any relief under any bankruptcy or insolvency law or
laws relating to the relief of debtors, readjustment of
indebtedness, arrangements, reorganizations, compositions (all of
the foregoing are herein collectively called “Insolvency
Proceedings”), or extensions, or as a result of the sale of
all or substantially all of the assets of Borrower, then in such
event:
(a)
Senior Lender and WAA shall share equally
in any payments to the extent made with WAA Collateral (whether or
not such WAA Collateral consists of Collateral) or proceeds of WAA
Collateral, until such time as the WAA Loan has been paid in full.
Thereafter, Senior Lender shall be entitled to receive
payment in full of all Senior Debt, to the extent made with
WAA Collateral or proceeds of WAA Collateral, before Subordinate
Lender shall be entitled to receive any payment or other
distribution on, or with respect to, the Subordinate
Debt;
(b)
Senior Lender shall be entitled to
receive payment in full of all Senior Debt before Subordinate
Lender shall be entitled to receive any payment or other
distributions on, or with respect to the Subordinate
Debt;
(c)
Any payment or distribution of any kind
or character, whether in cash, securities, or other property, which
but for these provisions would be payable or deliverable upon or
with respect to the Subordinate Debt or the WAA Debt, shall instead
be paid or delivered directly to Senior Lender, (i) for application
as provided in subsection (a) above if made with WAA Collateral or
proceeds of WAA Collateral or (ii) if made otherwise for
application on the Senior Debt, in either event whether then due or
not due, until the Senior Debt Termination Date;
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(d)
Subordinate Lender and WAA shall duly and
promptly take such action as may reasonably be requested by Senior
Lender to assist in the collection of the Subordinate Debt and the
WAA Debt for the account of any holder of the Senior Debt,
including, without limitation, the filing of appropriate proofs of
claim with respect to the Subordinate Debt and the WAA
Debt;
(e)
Subordinate Lender and WAA each
authorizes Senior Lender as its attorney-in-fact to prove the
Subordinate Debt and WAA Debt, respectively, in any bankruptcy,
reorganization, readjustment of debt, dissolution, receivership,
liquidation, or insolvency law or statute now or hereafter in
effect in any jurisdiction;
(f)
Should any direct or indirect payment be
made to Subordinate Lender or WAA upon or with respect to the
Subordinate Debt or the WAA Debt prior to the Senior Debt
Termination Date in connection
