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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.
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"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.
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"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
Title 11, United States 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).
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"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
Title 11,
United States 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).
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"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.
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(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.
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(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 o
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