EXHIBIT
10.26
INTERCREDITOR AGREEMENT
This Intercreditor Agreement (this
“Agreement”), is made the 26th day of January, 2009, by
and between White Star LLC, Mueller Trading L.P., Jason Lyons, and
SRZ Trading, LLC (collectively, the “Lenders”), and
WAA, LLC with an address of c/o Voyant International Corporation,
530 Lytton Avenue, 2 nd Floor, Palo Alto, California
94301 (“WAA”), and is acknowledged by Voyant
International Corporation, 444 Castro Street, Suite 318, Mountain
View, California 94041 (together with its subsidiaries, the
“Borrower”).
WHEREAS, Borrower may become indebted to
Lenders pursuant to four Secured Notes issued to Lenders on or
about the date hereof in an aggregate principal amount of $300,000
(together, the “ 2009 Notes ”), and related
agreements, instruments and documents (together with the 2009
Notes, and including the Transaction Documents (as defined in the
2009 Notes), the “Loan Documents”);
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”);
WHEREAS, WAA will receive benefits from
Lenders extending credit to or for the account of the Borrower;
and
WHEREAS, Lenders would not extend credit
to the Borrower unless and until WAA agreed to enter into this
Agreement to provide for, among other things, the pari passu
treatment of the WAA Collateral (as defined below);
NOW THEREFORE, in consideration of their
mutual promises and other good and valuable consideration, and to
induce Lenders to extend to the loan described above and to induce
Lenders to provide credit to the Borrower, the undersigned agree as
follows:
1.
This Intercreditor Agreement is made
pursuant to the Loan Documents. Unless otherwise defined
herein, capitalized terms used herein shall have the same meanings
given in the Loan Documents.
2.
WAA hereby represents and warrants to
Lenders that, other than the security interest in the WAA
Collateral, the WAA Loan is unsecured. In the event that the
WAA Loan becomes secured by any collateral other than the WAA
Collateral (which WAA acknowledges may not occur without
Lenders’ prior written consent), WAA hereby subordinates any
lien, security interest, mortgage, pledge, assignment or other
interest in any real or personal property of Borrower (other than
the WAA Collateral) securing the WAA Loan to any and all liens,
security interests, mortgages, pledges, assignments or other
interests that may now or hereafter be granted by Borrower to
Lenders in connection with the Loan Documents, and WAA agrees to
take any and all
1
such further actions, and to execute and
deliver such other documents as may be reasonably necessary or
appropriate to effect such subordination. WAA agrees that it
will not contest (or join with any other creditor in contesting)
the attachment, perfection or priority of Lenders’ security
interest in and liens on any of the collateral (other than the WAA
Collateral) securing indebtedness or liabilities of the Borrower to
Lenders under the Loan Documents (the “Senior
Collateral”) or commence or prosecute (or join with any other
creditor in commencing or prosecuting) any action or proceeding
asserting that Lenders’ security interest in and liens on any
Senior Collateral are voidable as a preference or a fraudulent
conveyance under the Bankruptcy Code or a fraudulent transfer under
applicable state or federal law or are otherwise invalid or
unenforceable. Lenders shall have no duty to preserve,
protect, care for, insure, take possession of, collect, dispose of
or otherwise realize upon any of the Senior Collateral.
3.
WAA and Lenders hereby agree that,
notwithstanding the date of attachment, perfection or filing of any
security interest, the “Collateral” as defined in the
WAA Note (the “WAA Collateral”) shall secure the WAA
Loan and the loan evidenced by the Loan Documents on a pari passu
basis, pro rata based on the amount outstanding un
