EXHIBIT 4.13.14
VOXX CORPORATION AND CERTAIN OF ITS SUBSIDIARIES
MASTER SECURITY AGREEMENT
To: Sands Brothers Venture Capital LLC
Sands Brothers Venture Capital II LLC
Sands Brothers Venture Capital III LLC
Sands Brothers Venture Capital IV LLC
(collectively, the "Noteholders")
Date: April 29, 2005
To Whom It May Concern:
1. To secure the payment of all Obligations (as hereafter
defined), Voxx Corporation, a Florida corporation (the "Company"), each of the
other undersigned parties (other than the Noteholders) and each other entity
that is required to enter into this Master Security Agreement (each an
"Assignor" and, collectively, the "Assignors") hereby assigns and grants to the
Noteholders a continuing security interest in all of the following property now
owned or at any time hereafter acquired by any Assignor, or in which any
Assignor now have or at any time in the future may acquire any right, title or
interest (the "Collateral"): all cash, cash equivalents, accounts, deposit
accounts (including, without limitation, the Lockbox Deposit Accounts referred
to below), inventory, equipment, goods, documents, instruments (including,
without limitation, promissory notes), contract rights, general intangibles
(including, without limitation, payment intangibles and an absolute right to
license on terms no less favorable than those current in effect among our
affiliates), chattel paper, supporting obligations, investment property
(including, without limitation, all equity interests owned by any Assignor),
letter-of-credit rights, trademarks, trademark applications, patents, patent
applications, copyrights, copyright applications and tradestyles, in each case,
in which any Assignor now have or hereafter may acquire any right, title or
interest, all proceeds and products thereof (including, without limitation,
proceeds of insurance) and all additions, accessions and substitutions thereto
or therefore. In the event any Assignor wishes to finance the acquisition in the
ordinary course of business of any hereafter acquired equipment and have
obtained a commitment from a financing source to finance such equipment from an
unrelated third party, the Noteholders agree to release their security interest
on such hereafter acquired equipment so financed by such third party financing
source. Except as otherwise defined herein, all capitalized terms used herein
shall have the meaning provided such terms in the Securities Purchase Agreement
referred to below.
2. The term "Obligations" as used herein shall mean and include
all debts, liabilities and obligations owing by each Assignor to the Noteholders
arising under, out of, or in connection with: (i) that certain Securities
Purchase Agreement dated as of the date hereof by and among the Company, Epixtar
Corp., a Florida corporation ("EPXR") and the Noteholders (the "Securities
Purchase Agreement") and (ii) the Related Agreements referred to in the
Securities Purchase Agreement (the Securities Purchase Agreement and each
Related Agreement, as each may be amended, modified, restated or supplemented
from time to time, are collectively referred to herein as the "Documents"), and
in connection with any documents, instruments or agreements relating to or
executed in connection with the Documents or any documents, instruments or
agreements referred to therein or otherwise, and in connection with any other
indebtedness, obligations or liabilities of any Assignor and/or any other
subsidiary of the Company to the Noteholders, 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 such Obligations, or of
any instrument evidencing any of the Obligations or of any collateral therefor
or of the existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of the Obligations in any
case commenced by or against any Assignor and/or any other subsidiary of the
Company under Title 11, United States Code, including, without limitation,
obligations or indebtedness of each Assignor and/or any other subsidiary of the
Company for post-petition interest, fees, costs and charges that would have
accrued or been added to the 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 "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 Obligations shall not exceed the rate of
interest and fees provided for in the Documents (as in effect on the date
hereof).
3. Each Assignor hereby jointly and severally represents,
warrants and covenants to the Noteholders that:
(a) it is a corporation, partnership or limited liability
company, as the case may be, validly existing, in good standing and
organized under the respective laws of its jurisdiction of organization
set forth on Schedule A, and each Assignor will provide Laurus thirty
(30) days' prior written notice of any change in any of its respective
jurisdiction of organization;
(b) its legal name is as set forth in its respective
Certificate of Incorporation or other organizational document (as
applicable) as amended through the date hereof and as set forth on
Schedule A, and it will provide the Noteholders thirty (30) days' prior
written notice of any change in its legal name;
(c) its organizational identification number (if
applicable) is as set forth on Schedule A hereto, and it will provide
Laurus thirty (30) days' prior written notice of any change in any of
its organizational identification number;
(d) it is the lawful owner of the respective Collateral
and it has the sole right to grant a security interest therein and will
defend the Collateral against all claims and demands of all persons and
entities;
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(e) it will keep its respective Collateral free and clear
of all attachments, levies, taxes, liens, security interests and
encumbrances of every kind and nature ("Encumbrances"), except (i)
Encumbrances securing (i) the Obligations and the obligations owed by
each Assignor to the Noteholders pursuant to the Documents and (ii) the
Laurus Obligations (as defined in the Intercreditor Agreement), (ii) to
the extent said Encumbrance does not secure indebtedness in excess of
$100,000 and such Encumbrance is removed or otherwise released within
thirty (30) days of the creation thereof, (iii) liens of warehousemen,
mechanics, materialmen, workers, repairmen, common carriers, or
landlords, liens for taxes, assessments or other governmental charges,
and other similar liens arising by operation of law, in each case
arising in the ordinary course of business and for amounts that are not
yet due and payable or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted
and for which an adequate reserve or other appropriate provision shall
have been made to the extent required by generally accepted accounting
principals, (iv) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and (v) the Encumbrances set forth on Schedule B hereto
(the preceding clauses (i) through (iv), collectively, the "Permitted
Encumbrances");
(f) it will, at its and the other Assignors joint and
several cost and expense, keep the Collateral in good state of repair
(ordinary wear and tear excepted) and will not waste or destroy the
same or any part thereof other than ordinary course discarding of items
no longer used or useful in its or such other Assignors' business;
(g) Subject to Section 6.12(g) in the Securities Purchase
Agreement, it will not without each of the Noteholder's prior written
consent, sell, exchange, lease or otherwise dispose of the Collateral,
whether by sale, lease or otherwise, except (I) as set forth in the
accounts receivable factoring documents described on Schedule B hereto
(as such documents are in effect on the date hereof) and (II) for the
sale of inventory in the ordinary course of business and for the
disposition or transfer in the ordinary course of business during any
fiscal year of obsolete and worn-out equipment or equipment no longer
necessary for its ongoing needs, having an aggregate fair market value
of not more than $75,000 and only to the extent that:
(i) the proceeds of any such disposition are
used to acquire replacement Collateral which is subject to The
Noteholders' first priority perfected security interest, or
are used to repay Obligations or to pay general corporate
expenses; and
(ii) following the occurrence of an Event of
Default which continues to exist the proceeds of which are
remitted to the Noteholders to be held as cash collateral for
the Obligations;
(h) it will insure or cause the Collateral to be insured
in the Noteholders' names against loss or damage by fire, theft,
burglary, pilferage, loss in transit and such other hazards as the
Noteholders shall specify in amounts and under policies by insurers
acceptable to the Noteholders and all premiums thereon shall be paid by
such Assignor and the policies delivered to the Noteholders. If any
such Assignor fails to do so, the Noteholders may procure such
insurance and the cost thereof shall be promptly reimbursed by the
Assignors, jointly and severally, and shall constitute Obligations;
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(i) it will at all reasonable times, upon reasonable
notice and in a reasonable manner, allow the Noteholders or their
designated representatives free access to and the right of inspection
of the Collateral;
(j) such Assignor (jointly and severally with each other
Assignor) hereby indemnifies and saves each Noteholder harmless from
all loss, costs, damage, liability and/or expense, including reasonable
attorneys' fees, that such Noteholders may sustain or incur to enforce
payment, performance or fulfillment of any of the Obligations and/or in
the enforcement of this Master Security Agreement or in the prosecution
or defense of any action or proceeding either against any or all of the
Noteholders or any Assignor concerning any matter growing out of or in
connection with this Master Security Agreement, and/or any of the
Obligations and/or any of the Collateral except to the extent caused by
the Noteholders' own gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and
non-appealable decision);
(k) Subject to Section 3(l) below, on or prior to the
30th day following the Closing Date, each Assignor will (x) irrevocably
direct all of its present and future Account Debtors (as defined below)
and other persons obligated to make payments constituting Collateral
owned by any Assignor to make such payments directly to the lockboxes
maintained by the Assignors (the "Lockboxes") with Gibralter Bank, N.A.
or such other financial institution accepted to by Laurus Master Fund,
Ltd. ("Laurus"), a Cayman Islands company acting as collateral agent
for itself and the benefit of the Noteholders, as may be selected by
such Assignor (the "Lockbox Bank") (each such direction pursuant to
this clause (x), a "Direction Notice") and (y) provide Laurus with
copies of each Direction Notice, each of which shall be agreed to and
acknowledged by the respective Account Debtor. Upon receipt of such
payments, the Lockbox Bank has agreed to deposit the proceeds of such
payments in a deposit account maintained at the Lockbox Bank and
accepted by Laurus in writing (collectively, the "Lockbox Deposit
Accounts"). On or prior to the Closing Date, each Assignor shall and
shall cause the Lockbox Bank to enter into all such documentation
acceptable to Laurus pursuant to which, among other things, the Lockbox
Bank agrees to, following notification by Laurus (which notification
Laurus shall only give following the occurrence and during the
continuance of an Event of Default), comply only with the instructions
or other directions of Laurus concerning the Lockboxes and the Lockbox
Deposit Account. All of each Assignor's invoices, account statements
and other written or oral communications directing, instructing,
demanding or requesting payment of any Account (as defined below) of
any Assignor or any other amount constituting Collateral of any
Assignor shall conspicuously direct that all payments be made to the
Lockbox or such other address as the Noteholders may direct in writing.
If, notwithstanding the instructions to Account Debtors, any Assignor
or any other subsidiary of EPXR receives any payments referred to in
this Section 3(k), such Assignor or such other subsidiary of EPXR shall
immediately remit such payments to the Lockbox Deposit Account in their
original form with all necessary endorsements. Until so remitted, such
Assignor or such other subsidiary of EPXR shall hold all such payments
in trust for and as the property of the Noteholders and shall not
commingle such payments with any of its other funds or property. For
the purpose of this Master Security Agreement, (x) "Accounts" shall
mean all "accounts", as such term is defined in the Uniform Commercial
Code as in effect in the State of New York on the date hereof, now
owned or hereafter acquired by any Assignor (or EPXR or any other
subsidiary of EPXR) for the benefit of any Assignor) and (y) "Account
Debtor" shall mean any person or entity who is or may be obligated with
respect to, or on account of, an Account. The Noteholders and each
Assignor agree that so long as no Event of Default has occurred and is
continuing, only the Assignors shall be permitted to access and utilize
the cash in the Lockboxes for its corporate purposes as directed by the
respective Assignor.
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(l) Notwithstanding anything contained herein to the
contrary, each Assignor is permitted to continue factoring its account
receivables (x) owed by Discover Financial Services, Inc. ("Discover")
and CompuCredit Corporation ("Compucredit") to such Assignor both in
the Philippines and in the United States of America and (y) owed
directly to Epixtar Marketing Corp., a Florida corporation (the
"Permitted Factoring Arrangements"). Each Assignor explicitly agrees
(i) not to factor any accounts receivable owed to it other than those
accounts receivable owed by Discover and Compucredit and (ii) in
respect of all receipts and other amounts owed any Assignor by any
factoring company (each, a "Factor") conducting the Permitted Factoring
Arrangements, (x) the Factor shall be deemd an Account Debtor and (y)
all receipts and other amounts payable by the Factor to any Assignor
shall be deposited and handled in accordance with the provisions of
Section 3(k) hereof.
(m) For so long as their shall be any Obligations due and
owing to the Noteholders in respect of this Master Security Agreement
and/or any Document, all our business of the type and nature currently
conducted by the Company and its subsidiaries (the "Voxx Business")
shall continue to be conducted by the Company and its subsidiaries
(either now existing or hereon after formed as a wholly-owned
subsidiary) (the "Voxx Business Entities") hereon in and after.
(n) From and after the date hereof, EPXR and the Company
will, as soon as practicable, use their collective best efforts to
cause all assets, accounts, obligations, functions and other elements
associated with the Voxx Business which are not, as of the date hereof,
conducted or owned by the Company, to be consolidated within the Voxx
Business Entities for the purpose of centralizing the Voxx Business
within the Voxx Business Entities and thereby establishing the Voxx
Business as a free-standing, independent operating enterprise capable
of consummating an initial public offering with minimal operational and
financial reliance upon EPXR and its non-Company affiliates.
4. The occurrence of any of the following events or conditions
shall constitute an "Event of Default" under this Master Security Agreement:
(a) breach of any covenant, warranty, representation or
statement made or furnished to the Noteholders by any Assignor or on
any Assignor's benefit was false or misleading in any material respect
when made or furnished, and if subject to cure, shall not be cured for
a period of thirty (30) days;
(b) the loss, theft, substantial damage, destruction,
sale or encumbrance to or of any of the Collateral or the making of any
levy, seizure or attachment thereof or thereon except to the extent:
(i) such loss is covered by insurance proceeds
which are used to replace the item or repay the Noteholders;
or
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(ii) said levy, seizure or attachment does not
secure indebtedness in excess of $100,000 and such levy,
seizure or attachment has not been removed or otherwise
released within thirty (30) days of the creation or the
assertion thereof;
(c) any Assignor shall become insolvent, cease
operations, dissolve, terminate our business existence, make an
assignment for the benefit of creditors, suffer the appointment of a
receiver, trustee, liquidator or custodian of all or any part of
Assignors' property;
(d) any proceedings under any bankruptcy or insolvency
law shall be commenced by or against any Assignor and if commenced
against any Assignor shall not be dismissed within forty-five (45)
days;
(e) the Company shall repudiate, purport to revoke or
fail to perform any or all of its obligations under the Notes held by
the Noteholders (after passage of applicable cure period, if any); or
(f) an Event of Default shall have occurred under and as
defined in any Document, including without limitation an Event of
Default in respect of the Laurus Obligations.
5. Upon the occurrence of any Event of Default and at any time
thereafter, the Noteholders may declare all Obligations immediately due and
payable and the Noteholders shall have the remedies of a secured party provided
in the Uniform Commercial Code as in effect in the State of New York, this
Agreement and other applicable law. Upon the occurrence of any Event of Default
and at any time thereafter, the Noteholders will have the right to take
possession of the Collateral and to maintain such possession on our premises or
to remove the Collateral or any part thereof to such other premises as the
Noteholders may desire. Upon the Noteholders' request, each of the Assignors
shall assemble or cause the Collateral to be assembled and make it available to
the Noteholders at a place designated by the Noteholders. If any notification of
intended disposition of any Collateral is required by law, such notification, if
mailed, shall be deemed properly and reasonably given if mailed at least ten
(10) days before such disposition, postage prepaid, addressed to any Assignor
either at such Assignor's address shown herein or at any address appearing on
the Noteholders' records for such Assignor. Any proceeds of any disposition of
any of the Collateral shall be applied by the Noteholders to the payment of all
expenses in connection with the sale of the Collateral, including reasonable
attorneys' fees and other legal expenses and disbursements and the reasonable
expense of retaking, holding, preparing for sale, selling, and the like, and any
balance of such proceeds may be applied by the Noteholders toward the payment of
the Obligations in such order of application as the Noteholders may elect, and
each Assignor shall be liable for any deficiency. For the avoidance of doubt,
following the occurrence and during the continuance of an Event of Default,
Laurus shall have the immediate right to withdraw any and all monies contained
in the Lockbox Deposit Accounts and any other deposit accounts under the control
of Laurus and apply same to the repayment of the Obligations in accordance with
the terms of the Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Master Security Agreement, the Purchase Agreement or
any Related Agreement, in the event that the Noteholders exercise the remedies
provided for in this Section 5, the Noteholders agree that the amounts (if any)
set forth in the Lockbox Deposit Accounts shall be utilized to repay the
Obligations prior to exercising its other remedies provided for in this Section
5.
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6. If any Assignor defaults in the performance or fulfillment of
any of the terms, conditions, promises, covenants, provisions or warranties on
such Assignor's part to be performed or fulfilled under or pursuant to this
Master Security Agreement (following any applicable grace period), the
Noteholders may, at their option, without waiving their rights to enforce this
Master Security Agreement according to its terms, immediately or at any time
thereafter and without notice to any Assignor, perform or fulfill the same or
cause the performance or fulfillment of the same for each Assignor's joint and
several account and at each Assignor's joint and several cost and expense, and
the cost and expense thereof (including reasonable attorneys' fees) shall be
added to the Obligations and shall be payable on demand with interest thereon at
the highest rate permitted by law.
7. Each Assignor appoints any of the Noteholders' officers,
employees or any other person or entity whom the Noteholders may designate as
our attorney, with power to execute such documents in each of our behalf and to
supply any omitted information and correct patent errors in any documents
executed by any Assignor or on any Assignor's behalf; to file financing
statements against us covering the Collateral (and, in connection with the
filing of any such financing statements, describe the Collateral as "all assets
and all personal property, whether now owned and/or hereafter acquired" (or any
substantially similar variation thereof)); following any Event of Default and
any applicable period of grace, to sign our name on public records; and to do
all other things the Noteholders deem necessary to carry out this Master
Security Agreement. Each Assignor hereby ratifies and approves all acts of the
attorney and neither the Noteholders nor the attorney will be liable for any
acts of commission or omission, nor for any error of judgment or mistake of fact
or law other than gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision). This
power being coupled with an interest, is irrevocable so long as any Obligations
remains unpaid.
8. No delay or failure on the Noteholders' part in exercising any
right, privilege or option hereunder shall operate as a waiver of such or of any
other right, privilege, remedy or option, and no waiver whatever shall be valid
unless in writing, signed by each Noteholder and then only to the extent therein
set forth, and no waiver by the Noteholders of any default shall operate as a
waiver of any other default or of the same default on a future occasion. The
Noteholders' books and records containing entries with respect to the
Obligations shall be admissible in evidence in any action or proceeding, shall
be binding upon each Assignor for the purpose of establishing the items therein
set forth and shall constitute prima facie proof thereof (in the absence of
manifest error or fraud). The Noteholders shall have the right to enforce any
one or more of the remedies available to the Noteholders, successively,
alternately or concurrently. Each Assignor agrees to join with the Noteholders
in executing financing statements or other instruments to the extent required by
the Uniform Commercial Code in form satisfactory to the Noteholders and in
executing such other documents or instruments as may be required or deemed
necessary by the Noteholders for the purposes of affecting or continuing the
Noteholders' security interest in the Collateral.
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9. This Master Security Agreement shall be governed by and
construed in accordance with the laws of the State of New York and cannot be
terminated orally. All of the rights, remedies, options, privileges and
elections given to the Noteholders hereunder shall inure to the benefit of each
Noteholder's successors and assigns. Except as set forth below in this Section
9, any and all disputes, controversies and claims that any Assignor may assert
against a Noteholder arising out of or relating to this Master Security
Agreement or any other Document shall be determined exclusively by arbitration
(each such arbitration, an "Arbitration") in New York City before a panel of
three neutral arbitrators agreed to by Laurus and the Company (collectively, the
"Arbitrators") in accordance with and pursuant to the then existing commercial
arbitration rules of the American Arbitration Association. Each Assignor hereby
irrevocably waives any right to assert such claims in any other forum. The
Arbitrators shall have the power in their discretion to award specific
performance or injunctive relief (but shall not have the power to render any
incidental, special or punitive damages) and reasonable attorneys' fees and
expenses to any party in any arbitration. The Arbitrators may not change, modify
or alter any express condition, term or provision of this Master Security
Agreement or of any other Document nor shall they have the power to render any
award against the Noteholder that would have such effect. Each Arbitration award
shall be final and binding upon the parties subject thereto and judgment may be
entered thereon in any court of competent jurisdiction. The service of any
notice, process, motion or other document in connection with an Arbitration or
for the enforcement of any Arbitration award may be made in the same manner as
communications may be given under Section 10 hereof. Notwithstanding the
foregoing, no provisions of this Section 9 nor any other provision contained in
this Master Security Agreement or in any other Document shall limit in any
manner whatsoever the Noteholders' right to commence an action against or in
connection with any Assignor or their respective properties in any court of
competent jurisdiction or otherwise utilize judicial process in connection with
or arising out of the Noteholders' rights and remedies under this Master
Security Agreement and/or any other Document or otherwise (any such action, a
"Court Action"). Court Actions may be brought by the Noteholders in any state or
federal court of competent jurisdiction and each Assignor irrevocably submits to
the jurisdiction of such state and federal courts and irrevocably waives any
claim or defense of inconvenient forum or lack of personal jurisdiction in such
forum or right of removal or right to jury trial under any applicable law or
decision or otherwise. Service of any notice, process, motion or other document
in connection with a Court Action may be made in the same manner as
communications may be given under Section 10. In addition, the Noteholders may
serve process in any other manner permitted under applicable law.
10. All notices from a Noteholder to any Assignor shall be
sufficiently given if mailed or delivered to such Assignor's address set forth
below.
11. It is understood and agreed that any person or entity that
desires to become an Assignor hereunder, or is required to execute a counterpart
of this Master Security Agreement after the date hereof pursuant to the
requirements of any Document, shall become an Assignor hereunder by (x)
executing a Joinder Agreement in form and substance satisfactory to the
Noteholders, (y) delivering supplements to such exhibits and annexes to such
Documents as Laurus shall reasonably request and (z) taking all actions as
specified in this Master Security Agreement as would have been taken by such
Assignor had it been an original party to this Master Security Agreement, in
each case with all documents required above to be delivered to the Noteholders
and with all documents and actions required above to be taken to the reasonable
satisfaction of the Noteholders.
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12. Notwithstanding anything to the contrary contained in this
Master Security Agreement, the terms and conditions of this Master Security
Agreement shall be subject in all respects to the terms and conditions of the
Intercreditor Agreement. In the event that the terms and conditions of this
Master Security Agreement are in contravention of the terms and conditions of
the Intercreditor Agreement, the terms and conditions of the Intercreditor
Agreement shall prevail. No provision of this Master Security Agreement shall be
amended, modified, supplemented, restated, terminated or waived in any respect
except by a writing duly executed by each Assignor, each Noteholder and Laurus.
[The remainder of this page is intentionally left blank]
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Very truly yours,
VOXX CORPORATION
By: /s/ Ilene Kaminsky
----------------------------------
Name: Ilene Kaminsky
Title: CEO
Address: 11900 Biscayne Boulevard
Suite 700
Miami, Florida 33181
EPIXTAR MARKETING CORP.
By: /s/ Ilene Kaminsky
----------------------------------
Name: Ilene Kaminsky
Title: CEO
Address: 11900 Biscayne Boulevard
Suite 700
Miami, Florida 33181
EPIXTAR INTERNATIONAL CONTACT
CENTER GROUP, INC.
By: /s/Ilene Kaminsky
----------------------------------
Name: Ilene Kaminsky
Title: CEO
Address: 11900 Biscayne Boulevard
Suite 700
Miami, Florida 33181
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ACKNOWLEDGED:
Sands Brothers Venture Capital LLC
Sands Brothers Venture Capital II LLC
Sands Brothers Venture Capital III LLC
Sands Brothers Venture Capital IV LLC
By: /s/ Authorized Officer
----------------------------------
Name: Steven Sands
Title: Manager
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SCHEDULE A
- --------------------------------------------------------------------------------
Organization
Jurisdiction of Identification
Entity Organization Number
- --------------------------------------------------------------------------------
Voxx Corporation Florida
- --------------------------------------------------------------------------------
Epixtar Marketing Florida
Corp.
- --------------------------------------------------------------------------------
Epixtar Delaware
International
Contact Center
Group, Inc.
- --------------------------------------------------------------------------------
SCHEDULE B
Permitted Liens