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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
