INTERCREDITOR, SUBORDINATION, WAIVER AND AMENDMENT AGREEMENT
Exhibit
10.6
THIS
INTERCREDITOR, SUBORDINATION, DEFAULT AND AMENDMENT AGREEMENT, dated as of
December 18, 2007 (this “Agreement”),
is by
and among VoIP Inc. (“Borrower”),
the
parties identified on Schedule
A
hereto
(“Secured
Lenders”)
the
parties identified on Schedule
B
hereto
(“SSSD
Lenders”),
the
parties identified on Schedule
C
hereto
(“LB
Lenders”)
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in her capacity as collateral agent for the benefit of
the
Secured Lenders, SSSD Lenders and LB Lenders (each a “Party”
and
collectively the “Parties”).
W
I T N E
S S E T H:
WHEREAS,
Secured Lenders have entered into financing arrangements with the Borrower,
and
such financings are secured by the assets of the Borrower and its subsidiaries
(all such subsidiaries, collectively with the Borrower, the (“Obligors”);
and
WHEREAS,
the Borrower, the Secured Lenders and the SSSD Lenders are parties to various
financing, debt structuring and intercreditor agreements which set forth various
agreements, covenants and obligations amongst the signatories
thereto.
WHEREAS,
the Borrower, is in need of additional financing the terms of which may
contradict the terms of previous agreements or require the consent and waiver
of
the parties to the previous agreements.
NOW
THEREFORE, in consideration of the mutual benefits accruing to Secured Lenders,
SSSD Lenders, LB Lenders, Borrower and Obligors, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto do hereby agree as follows:
1. DEFINITIONS.
As
used
in this Agreement, the following terms shall have the meanings ascribed to
them
below:
“Cedar
Debt” means
indebtedness owed by the Borrower to some of the Secured lenders as identified
on Schedule 2.1 to the September Intercreditor Agreement.
“Collateral”
means
all of the items defined and identified as “Collateral”
in
the
Secured Lender’s Transaction Documents.
“Collateral
Documents”
means
all agreements, instruments and other documents giving rise, governing and
evidencing the rights and obligations with respect to the Liens of the Secured
Lenders, SSSD Lenders and LB Lenders in the Collateral.
“Debt”
and/or
“Obligations”
means
all debt and obligations of the Obligors to the Secured Lenders, SSSD Lenders
and LB Lenders.
“December
Financing”
means
all agreements, instruments and other documents that Borrower and LB Lenders
entered into on or about the date of this Agreement in connection with the
transactions in which a total of up to $3,010,347.60 in Principal Amount
Convertible Notes (the “December
Notes”)
will
be issued by Borrower to the LB Lenders, commencing on or about the date of
this
Agreement.
1
“Insolvency
Proceeding”
means,
as to any Obligor, any of the following, occurring after the date hereof:
(i)
any case
or proceeding with respect to such Obligor under the U.S. Bankruptcy Code,
any
other federal, state or provincial bankruptcy, insolvency, reorganization or
other law affecting creditors’ rights generally or any other or similar
proceedings of any other jurisdiction or otherwise seeking any stay,
reorganization, arrangement, liquidation, dissolution, composition or
readjustment of the obligations and indebtedness of such Obligor, or
(ii)
any
proceeding seeking the appointment of any receiver, administrative receiver,
receiver and manager, examiner, judicial custodian, trustee, liquidator,
official manager, administrator or similar official for any Obligor or any
material part of its properties, or (iii)
any
proceedings for liquidation, dissolution or other winding up of the business
of
such Obligor, or (iv)
the sale
of all or substantially all of the assets or capital stock of such Obligor,
or
(v)
any
assignment for the benefit of creditors or any marshaling of assets of such
Obligor.
“Lien”
means
any mortgage, deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance (including, but not limited to,
easements, rights of way and the like), lien (statutory or other), security
agreement or transfer intended as security, including without limitation, any
conditional sale or other title retention agreement, the interest of a lessor
under a capital lease or any financing lease having substantially the same
economic effect as any of the foregoing.
“Lockbox”
means
the trust account opened pursuant to the Lockbox Agreement.
“Lockbox
Agreement”
means
the Loan Agreement entered into among the Borrower, Escrow Agent and the LB
Lenders dated and entered into as of the same debate as this
Agreement.
“Lockbox
Funds”
means
t
all funds deposited in the Lockbox.
“Lockbox
Debt”
or
“Lockbox
Notes”
means
the obligations of the Obligors to the holders of the notes issued in the
December Financing and the additional notes described in Schedule
2.1.
“Secured
Debt”
means
all indebtedness of the Obligors to the Secured Lenders other than the Lockbox
Debt, Super Senior Secured Debt and the Cedar Debt.
“Secured
Lenders Transaction
Documents”
means
all agreements, instruments and other documents that Borrower and/or Secured
Lenders entered into on or about July 5, 2005, January 6, 2006, February 2,
2006, October 14, 2006, February 1, 2007, February 16, 2007, April 6, 2007,
July
27, 2007, September 12, 2007 and the December Financing, respectively, and
all
Transaction document as defined in such agreements, instruments and other
documents together with all documents related thereto, as may have been
amended.
“September
Intercreditor Agreement”
shall
mean the Intercreditor, Subordination, Default Waiver and Assignment Agreement
among the Borrower and the other signatories thereto dated September 12,
2007.
“Super
Senior Secured Debt”
shall
have the meaning ascribed to it in the September Intercreditor
Agreement.
2
2. CLASSIFICATIONS
OF VOIP’S OBLIGATIONS.
2.1 Lockbox
Debt.
Schedule
2.1
sets
forth the additional notes that are to be included with the December Notes
being
classified as Lockbox Debt.
2.2 Super
Senior Secured Debt.
In
addition to the notes defined as Super Senior Secured Debt pursuant to the
September Intercreditor Agreement, the notes listed on Schedule
2.2
shall be
deemed part of the Super Senior Secured Debt.
2.3 Any
note
may be classified as both Lockbox Debt and Super Senior Secured
Debt.
3. SECURITY
INTERESTS; PRIORITIES; REMEDIES.
3.1 Priority
of Liens.
a) Notwithstanding
the order or time of attachment, or the order, time or manner of perfection,
or
the order or time of filing or recordation of any document or instrument, or
other method of perfecting a security interest in favor of each secured creditor
in any Collateral, and notwithstanding any conflicting terms or conditions
which
may be contained in any of the Collateral Documents the Liens upon the first
$1,200,000 in the Lockbox securing the Super Senior Secured Debt have and shall
have priority over the Liens upon the Collateral securing the Lockbox debt,
Cedar Debt and the Secured Debt.
b) Notwithstanding
the order or time of attachment, or the order, time or manner of perfection,
or
the order or time of filing or recordation of any document or instrument, or
other method of perfecting a security interest in favor of each secured creditor
in any Collateral, and notwithstanding any conflicting terms or conditions
which
may be contained in any of the Collateral Documents, the Liens upon the Lockbox
Funds securing the Lockbox Debt, except as set forth in Section 3.1(a)of this
Agreement, have and shall have priority over the Liens upon the Lockbox Funds
securing the Super Senior Secured Debt, the Cedar Debt and the Secured Debt.
In
the event that upon the complete liquidation of Lockbox Funds there remains
Lockbox Debt not satisfied, all such remaining Lockbox Debt shall be
reclassified as Secured Debt.
c) Notwithstanding
the order or time of attachment, or the order, time or manner of perfection,
or
the order or time of filing or recordation of any document or instrument, or
other method of perfecting a security interest in favor of each secured creditor
in any Collateral, and notwithstanding any conflicting terms or conditions
which
may be contained in any of the Collateral Documents, and except as set forth
in
Section 3.1(a) and 3.1(b) of this Agreement, the Liens upon the Collateral
securing the Super Senior Secured Debt have and shall have priority over the
Liens upon the Collateral securing the Cedar Debt and the Secured
Debt.
d) Notwithstanding
the order or time of attachment, or the order, time or manner of perfection,
or
the order or time of filing or recordation of any document or instrument, or
other method of perfecting a security interest in favor of each secured creditor
in any Collateral, and notwithstanding any conflicting terms or conditions
which
may be contained in any of the Collateral Documents, the Liens upon the
Collateral securing the Cedar Debt have and shall have priority over the Liens
upon the Collateral securing the Secured Debt.
3.2 All
distribution proceeds of the Collateral shall be made in accordance with the
priorities set forth in Section 3.1 above.:
3
3.3 Priorities
Unaffected by Action or Inaction.
The
Lien priorities provided in Section
3.1 shall
not
be altered or otherwise affected by any amendment, modification, supplement,
extension, renewal, restatement, replacement or refinancing of either the
Secured Lenders Debt, Cedar Debt or the Super Senior Secured Debt, nor by any
action or inaction which any secured creditor may take or fail to take in
respect of the Collateral.
3.4 Rights
of Third Parties; No Contest of Lien.
Each
secured creditor shall be solely responsible for perfecting and maintaining
the
perfection of its Lien in and to each item constituting the Collateral in which
such secured creditor has been granted a Lien. The foregoing provisions of
this
Agreement are intended solely to govern the respective lien priorities as
between the secured creditor sand shall not impose on any secured creditor
any
obligations in respect of the disposition of proceeds of foreclosure on any
Collateral which would conflict with prior perfected claims therein in favor
of
any other person or any order or decree of any court or other governmental
authority or any applicable law. Each secured creditor agrees that it will
not
contest the validity, perfection, priority or enforceability of the Liens upon
the Collateral of Secured Lenders or Assignees, as the case may be, and that
as
between Secured Lenders, on the one hand, and Assignees, on the other, the
terms
of this Agreement shall govern even if part or all of the Secured Lenders Debt
or Super Senior Secured Debt or the Liens securing payment and performance
thereof are avoided, disallowed, set aside or otherwise invalidated in any
judicial proceeding or otherwise.
3.5 Right
to Enforce Agreements.
Subject
to the terms and conditions set forth in this Agreement, the Collateral Agent
on
behalf of the Secured Lenders and Assignees shall manage, perform and enforce
the terms of the Collateral Documents with respect to the Collateral, to
exercise and enforce all privileges and rights there under according to
Collateral Agent’s discretion and the exercise of Collateral Agent’s business
judgment; provided,
however,
all
proceeds arising from the sale or other disposition of such Collateral shall
be
applied as set forth in Section 3.1. For the avoidance of doubt, no amount
of
Collateral proceeds collected by or on behalf of Secured Lenders that is
ultimately used to satisfy the Super Senior Secured Debt shall result in a
reduction of the Secured Lenders Debt or the obligations of the Obligors to
repay the Secured Lenders Debt in full.
3.6 Supersedence.
The
terms, provisions and priorities set forth in this Agreement shall supersede
any
term or provision of the September Intercreditor Agreement.
4. [LEFT
INTENTIONALLY BLANK].
5. WAIVERS
and AMENDMENTS.
5.1 Additional
Negative Covenants.
Pursuant to Section 9(p) of the Subscription Agreement dated February 16, 2007
between the Borrower and Secured Lenders and any such other substantially
similar provision contained in the Secured Lenders Transaction Documents, the
Borrower is prohibited from creating, incurring, assigning, or suffering to
exist any security interest or pledges. The Secured Lenders each waive such
prohibition and consent solely to the Borrower entering into this Agreement
and
the December Financing.
5.2 Right
of First Refusal.
The
Secured Lenders each possess a right of first refusal with respect to any sale
of securities by the Borrower pursuant to Section 12(a) of the Subscription
Agreement dated January 6, 2006 between Borrower and Secured Lenders and any
such substantially similar provision contained in the Secured Lenders
Transaction Documents. In connection with this Agreement the December Financing,
the Secured Lenders hereby agree to waive such right of first
refusal.
4
5.3 Offering
Restrictions.
Pursuant to Section 12(b) of the Subscription Agreement dated January 6, 2006
between Borrower and Secured Lenders and any such other substantially similar
provision contained in the Secured Lenders Transaction Documents, the Borrower
is prohibited from entering into any agreement to issue any equity, convertible
debt or other securities convertible into common stock or equity of the Borrower
nor modify any of the foregoing. The Secured Lenders each waive such prohibition
solely in connection with this Agreement and the December
Financing.
5.4 December
Financing Security.
The
Secured Lenders acknowledge and agree that the obligations of the Borrower
pursuant to the December Financing shall be secured in accordance with the
priorities set forth in Section 3.1 of this Agreement.
6. MISCELLANEOUS.
6.1 Successors
and Assigns.
This
Agreement shall be binding upon, and inure to the benefit of, the successors
and
permitted assigns of the Parties. Neither party hereto may assign or permit
the
assignment of its obligations without first requiring the assignee of such
obligation to assume such assigning party’s rights and obligations under this
Agreement. Except as required by the preceding sentence, neither party may
assign its rights or obligations under this Agreement without the other party’s
prior written consent.
6.2
Insolvency.
This
Agreement shall be applicable both before and after any Insolvency Proceeding
by
or against any Obligor and all converted or succeeding cases in respect thereof,
and all references herein to any Obligor shall be deemed to apply to an agent
for such Obligor or any Obligor as debtor-in-possession. The relative rights
of
Secured Lenders, on the one hand, and Assignees, on the other, to repayment
of
the Secured Lenders Debt and the Super Senior Secured Debt, respectively, and
in
or to any distributions from or in respect of any Obligor or any Collateral
or
proceeds of Collateral, shall continue after the filing thereof on the same
basis as prior to the date of the petition, subject to any court order approving
the financing of, or use of cash collateral by, any Obligor as
debtor-in-possession.
6.3 Bailee
for Perfection; Delivery of Proceeds.
Each
secured creditor hereby appoints the others as agent for the purposes of
perfecting their respective Liens in and on any of the Collateral; provided
that
no
secured creditor shall have any duty or liability to protect or preserve any
rights pertaining to any of the Collateral and, except for gross negligence
or
willful misconduct as determined pursuant to a final non-appealable order of
a
court of competent jurisdiction, each secured creditor hereby waives, and
releases the other secured creditors from, all claims and liabilities arising
pursuant to the other’s role as bailee with respect to the Collateral.
6.4 Governing
Law; Jurisdiction; Waiver of Jury Trial.
(a)
This Agreement shall be governed by and construed under the laws of the State
of
New York applicable to contracts made and to be performed entirely within the
State of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the State and County
of
New York for the adjudication of any dispute hereunder or in connection herewith
or therewith or with any transaction contemplated hereby or thereby, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.
5
(b)
EACH
PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY DISPUTE OR CONTROVERSY
THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY
AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO
THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT OR
THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS AGREEMENT AND HAS HAD
AN
OPPORTUNITY TO SEEK SEPARATE COUNSEL OF ITS OWN CHOICE TO REVIEW THIS AGREEMENT,
(III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION
6.4(b).
6.5
Injunctive
Relief.
Each
Party acknowledges and agrees that a breach by it of its obligations hereunder
will cause irreparable harm to the other and that the remedy or remedies at
law
for any such breach will be inadequate and agrees, in the event of any such
breach, in addition to all other available remedies, the non-breaching party
shall be entitled to an injunction restraining any breach and requiring
immediate and specific performance of such obligations without the necessity
of
showing economic loss or the posting of any bond.
6.6 Severability.
In the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided
that in
such case the parties shall negotiate in good faith to replace such provision
with a new provision which is not illegal, unenforceable or void, as long as
such new provision does not materially change the economic benefits of this
Agreement to the parties.
6.7
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one and the
same
instrument. This Agreement may be executed and delivered by facsimile
transmission.
6.8 Notices.
Any
notice, demand or request required or permitted to be given by the respective
parties hereto pursuant to the terms of this Agreement shall be in writing
and
shall be deemed delivered (i) when delivered personally or by verifiable
facsimile transmission, unless such delivery is made on a day that is not a
Business Day, in which case such delivery will be deemed to be made on the
next
succeeding Business Day, (ii) on the next Business Day after timely delivery
to
an overnight courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
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To
Borrower or Obligors:
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VoIP,
Inc.
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151
So. ▇▇▇▇▇▇ Road, Suite 3000
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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With
a copy by telecopier only to:
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Sichenzia
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
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▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn:
▇▇▇▇ ▇▇▇▇, Esq.
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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6
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To
Collateral Agent:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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To
Secured Lenders:
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To
the addresses and facsimile numbers listed on Schedule A
hereto.
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To
SSSD Lenders:
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To
the addresses and facsimile numbers listed on Schedule B
hereto.
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To
LB Lenders:
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To
the addresses and facsimile numbers listed on Schedule C
hereto.
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If
to Secured Lenders, SSSD
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Lenders,
LB Lenders, or
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Collateral
Agent, with a Copy to:
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Grushko
& ▇▇▇▇▇▇▇, P.C.
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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Any Party may change the address(es) to which all notices, requests and other communications are to be sent by giving written notice of such address change to the other Parties in conformity with this Section 6.8, but such change shall not be effective until notice of such change has been received by the other Party.
6.9 Entire
Agreement; Amendments.
This
Agreement constitutes the entire agreement between the parties with regard
to
the subject matter hereof and thereof, superseding all prior agreements or
understandings, whether written or oral, between or among the parties. No
amendment, modification or other change to this Agreement or waiver of any
agreement or other obligation of the parties under this Agreement may be made
or
given unless such amendment, modification or waiver is set forth in writing
and
is signed by Assignors
and Secured Lenders.
Any
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
7
6.10 OMNIBUS
APPROVAL. BY
SIGNING THIS AGREEMENT EACH PARTY HEREBY AGREES TO, RATIFIES AND ACKNOWLEDGES
ALL THE TERMS, WAIVERS AND MODIFICATIONS HEREIN.
6.11 Headings.
The
headings used in this Agreement are used for convenience only and are not to
be
considered in construing or interpreting this Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as
of the day and year first above written.
SECURED
LENDERS
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________________________________________
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ALPHA
CAPITAL ANSTALT f/k/a ALPHA CAPITAL AKTIENGESELLSCHAFT
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________________________________________
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_______________________________________
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BRIO
CAPITAL L.P.
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BRISTOL
INVESTMENT FUND, LTD.
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________________________________________
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_______________________________________
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CENTURION
MICROCAP, ▇.▇.
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▇▇▇▇▇▇▇▇
RIDGE PARTNERS LP
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________________________________________
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_______________________________________
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DKR
SOUNDSHORE OASIS HOLDING FUND LTD.
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CMS
CAPITAL
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________________________________________
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_______________________________________
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DOUBLE
U MASTER FUND ▇.▇.
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▇▇▇▇▇
INTERNATIONAL LTD.
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________________________________________
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_______________________________________
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GRUSHKO
& ▇▇▇▇▇▇▇, P.C.
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IROQUOIS
CAPITAL
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________________________________________
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_______________________________________
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OSHER
CAPITAL INC.
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PLATINUM
LONG TERM GROWTH II INC.
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_______________________________________
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_______________________________________
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▇▇▇▇▇▇▇▇▇▇▇
LIMITED PARTNERSHIP
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WHALEHAVEN
CAPITAL FUND LTD.
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8
SSSD
LENDERS
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ALPHA
CAPITAL ANSTALT
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BRISTOL
INVESTMENT FUND, LTD.
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By:________________________________
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By:____________________________________
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Name:
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Name:
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Title:
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Title:
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CENTURION
MICROCAP ▇.▇.
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▇▇▇▇▇
INTERNATIONAL, LTD.
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By:________________________________
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By:____________________________________
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Name:
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Name:
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Title:
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Title:
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WHALEHAVEN
CAPITAL FUND, LTD
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By:________________________________
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Name:
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Title:
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LB
LENDERS
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________________________________________
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ALPHA
CAPITAL ANSTALT f/k/a ALPHA CAPITAL AKTIENGESELLSCHAFT
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________________________________________
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_______________________________________
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BRIO
CAPITAL L.P.
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BRISTOL
INVESTMENT FUND, LTD.
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________________________________________
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_______________________________________
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CENTURION
MICROCAP, ▇.▇.
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▇▇▇▇▇▇▇▇
RIDGE PARTNERS LP
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________________________________________
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_______________________________________
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GRUSHKO
& ▇▇▇▇▇▇▇, P.C.
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CMS
CAPITAL
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________________________________________
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_______________________________________
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DOUBLE
U MASTER FUND ▇.▇.
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▇▇▇▇▇
INTERNATIONAL LTD.
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________________________________________
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_______________________________________
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OSHER
CAPITAL INC.
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PLATINUM
LONG TERM GROWTH II INC.
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_______________________________________
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WHALEHAVEN
CAPITAL FUND LTD.
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9
COLLATERAL
AGENT
Pursuant
to the Joint Instructions of the Secured Lenders, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as
collateral agent under the Security Agreements, dated on or about July 5, 2005,
January 6, 2006, February 2, 2006, October 14, 2006, February 16, 2007, April
6,
2007, and July 27, 2007, as amended, securing the Obligations of VoIP Inc.
and
its subsidiaries under the Security Agreements and all documents in connection
therewith, as amended, hereby acknowledges this Agreement.
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ as Collateral Agent
_______________________________________
[Signatures
continued on next page]
10
BORROWER
______________________________
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
CEO
OBLIGORS
|
______________________________
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Title:
CEO
|
|
|
VOIPSOLUTIONS
|
EGLOBALPHONE
|
|
a
Florida corporation
|
a
Florida corporation
|
|
______________________________
|
______________________________
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Title:
CEO
|
Title:
CEO
|
|
CAERUS,
INC
|
VOX
CONSULTING GROUP, INC.
|
|
a
Delaware corporation
|
a
Florida corporation
|
|
______________________________
|
______________________________
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Title:
CEO
|
Title:
CEO
|
|
VCG
TECHNOLOGIES
|
VOLO
COMMUNICATIONS, INC.
|
|
a
Florida corporation
|
a
Delaware corporation
|
|
______________________________
|
______________________________
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Title:
CEO
|
Title:
CEO
|
|
CAERUS
BILLING, INC.
|
CAERUS
NETWORKS, INC.
|
|
a
Delaware corporation
|
a
Delaware corporation
|
|
______________________________
|
______________________________
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Title:
CEO
|
Title:
CEO
|
|
VOICEONE
COMMUNICATIONS, LLC
|
VOIP
ACQUISITION COMPANY
|
|
a
Delaware Limited Liability corporation
|
a
Delaware corporation
|
|
______________________________
|
______________________________
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Title:
CEO
|
Title:
CEO
|
11
JOINT
INSTRUCTIONS TO COLLATERAL AGENT
Each
of
the undersigned understands, approves and authorizes the execution of the
Intercreditor, Subordination, Waiver and Amendment Agreement (the “Agreement”)
and instructs ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as Collateral Agent for the Secured Lenders
to
execute the Agreement and further instructs the Collateral Agent to take all
action necessary to effectuate the intentions of the Parties thereto. Each
of
the undersigned specifically acknowledges that upon the execution of the
Agreement, the rights of the Collateral Agent and the rights of the undersigned
will modified and amended as described therein. Any Collateral or proceeds
thereof, which the Collateral Agent receives shall be remitted in accordance
with the terms of the Agreement.
SECURED
LENDERS
|
________________________________________
|
|
|
ALPHA
CAPITAL ANSTALT f/k/a ALPHA CAPITAL AKTIENGESELLSCHAFT
|
|
|
________________________________________
|
_______________________________________
|
|
BRIO
CAPITAL L.P.
|
BRISTOL
INVESTMENT FUND, LTD.
|
|
________________________________________
|
_______________________________________
|
|
CENTURION
MICROCAP, ▇.▇.
|
▇▇▇▇▇▇▇▇
RIDGE PARTNERS LP
|
|
________________________________________
|
_______________________________________
|
|
DKR
SOUNDSHORE OASIS HOLDING FUND LTD.
|
CMS
CAPITAL
|
|
________________________________________
|
_______________________________________
|
|
DOUBLE
U MASTER FUND ▇.▇.
|
▇▇▇▇▇
INTERNATIONAL LTD.
|
|
________________________________________
|
_______________________________________
|
|
GRUSHKO
& ▇▇▇▇▇▇▇, P.C.
|
IROQUOIS
CAPITAL
|
|
________________________________________
|
_______________________________________
|
|
OSHER
CAPITAL INC.
|
PLATINUM
LONG TERM GROWTH I INC.
|
|
_______________________________________
|
_______________________________________
|
|
▇▇▇▇▇▇▇▇▇▇▇
LIMITED PARTNERSHIP
|
WHALEHAVEN
CAPITAL FUND LTD.
|
12
TABLE
OF SCHEDULES
AND EXHIBITS
|
Schedule
A
|
List
of Secured Lenders with contact information
|
|
Schedule
B
|
List
of SSSD Lenders with contact information
|
|
Schedule
C
|
List
of LB Lenders with contact information
|
|
Schedule
2.1
|
Table
of additional Lockbox Notes
|
|
Schedule
2.2
|
Table
of additional Super Senior Secured
Notes
|
SCHEDULE
A
|
Alpha
Capital Anstalt
|
▇▇▇▇▇
International Ltd.
|
|
Pradafant
▇
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
▇▇▇▇
Furstentums
|
▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
|
|
▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇
of Panama
|
|
Fax:
***
|
***
|
|
Brio
Capital, ▇.▇.
|
▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, P.C.
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
Fax:
***
|
Fax:
***
|
|
Bristol
Investment Fund, Ltd.
|
Iroquois
Capital
|
|
c/o
Bristol Capital Advisers, LLC
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
***
|
|
Fax:
***
|
|
|
Osher
Capital
|
|
|
Centurion
Microcap, L.P.
|
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇
|
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
***
|
|
Fax:
***
|
|
|
Platinum
Long term Growth II, Inc.
|
|
|
Chestnut
Ridge Partners, L.P.
|
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
***
|
|
Fax:
***
|
|
|
▇▇▇▇▇▇▇▇▇▇▇
Limited Partnership
|
|
|
CMS
Capital
|
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
▇▇▇▇▇▇▇
▇▇▇. ▇▇▇ ▇▇▇
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Canada
|
|
***
|
***
|
|
DKR
Soundshore Oasis Holding Fund, Ltd.
|
Whalehaven
Capital Fund Limited
|
|
▇/▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
|
▇/▇
▇▇▇ ▇▇▇▇▇▇▇ Ltd.
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
3rd
Floor, ▇▇ ▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇
|
|
***
|
Fax:
***
|
|
Double
U Master Fund, L.P.
|
|
|
c/o
Navigator Management, Ltd.
|
|
|
Harbor
House, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇ ▇▇▇ ▇▇▇
|
|
|
▇▇▇▇
▇▇▇▇ BVI
|
|
|
***
|
|
13
Schedule
B
|
Alpha
Capital Anstalt
|
▇▇▇▇▇
International Ltd.
|
|
Pradafant
▇
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
▇▇▇▇
Furstentums
|
▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
|
|
▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇
of Panama
|
|
Fax:
***
|
***
|
|
Bristol
Investment Fund, Ltd.
|
Whalehaven
Capital Fund Limited
|
|
c/o
Bristol Capital Advisers, LLC
|
c/o
FWS Capital Ltd.
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
3rd
Floor, ▇▇ ▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Hamilton,
Bermuda HM08
|
|
Fax:
***
|
Fax:
***
|
|
Centurion
Microcap, L.P.
|
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇
|
|
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Fax:
***
|
14
Schedule
C
|
Double
U Master Fund, L.P.
|
|
|
Pradafant
7
|
c/o
Navigator Management, Ltd.
|
|
9490
Furstentums
|
Harbor
House, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇ ▇▇▇ ▇▇▇
|
|
▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇ BVI
|
|
Fax:
***
|
***
|
|
Brio
Capital, ▇.▇.
|
▇▇▇▇▇
International Ltd.
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Swiss
Tower, 16th Floor, Panama
|
|
Fax:
***
|
Republic
of Panama
|
|
***
|
|
|
Bristol
Investment Fund, Ltd.
|
|
|
c/o
Bristol Capital Advisers, LLC
|
Grushko
& ▇▇▇▇▇▇▇, P.C.
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
Fax:
***
|
Fax:
***
|
|
Centurion
Microcap, ▇.▇.
|
▇▇▇▇▇
Capital
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇
|
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Fax:
***
|
***
|
|
Chestnut
Ridge Partners, L.P.
|
Platinum
Long term Growth II, Inc.
|
|
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Fax:
***
|
***
|
|
CMS
Capital
|
Whalehaven
Capital Fund Limited
|
|
▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
c/o
FWS Capital Ltd.
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
|
|
***
|
▇▇▇▇▇▇▇▇,
Bermuda HM08
|
|
Fax:
***
|
15
Schedule
2.1
|
Additional
Notes issued by VoIP obtaining complete or partial
Lockbox
Debt Status
|
||||
|
Holder
|
Date
|
Principal
Amount of Note obtaining
Super
Senior Secured Status
|
||
16
Schedule
2.2
|
Additional
Notes issued by VoIP obtaining complete or partial
Super
Senior Secured Status
|
||||
|
Holder
|
Date
|
Principal
Amount of Note obtaining
Super
Senior Secured Status
|
||
17