SUBORDINATION AGREEMENT
This Subordination Agreement (this "Agreement") is entered into as of the
18th day of February, 2005, by and between THE HOLLANDSCHE TRUST No. IT 8953/98
(the "Trust"; the Trust, together with any successors and assigns of the Trust,
are collectively referred to herein as the "Subordinated Lenders"), and Laurus
Master Fund, Ltd. (the "Senior Lender"), and acknowledged and agreed to by the
Company (as defined below). Unless otherwise defined herein, capitalized terms
used herein shall have the meaning provided such terms in the Securities
Purchase Agreement referred to below.
BACKGROUND
WHEREAS, the Senior Lender has made a an additional loan to Centurion Gold
Holdings, Inc., a Florida corporation, (the "Company") pursuant to, and in
accordance with, (i) that certain Securities Purchase Agreement dated as of the
date hereof by and between the Company and Laurus (as amended, modified or
supplemented from time to time, the "Securities Purchase Agreement") and (ii)
the Related Agreements referred to in the Securities Purchase Agreement.
WHEREAS, the Subordinated Lender are has made loans to the Company and/or
Subsidiaries of the Company.
NOW, THEREFORE, each Subordinated Lender and the Senior Lender agree as
follows:
TERMS
1. All obligations of each the Company and/or any of its Subsidiaries to
the Senior Lender, howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent or now or hereafter existing, or due or to
become due are referred to as "Senior Liabilities". Any and all loans made by
the Subordinated Lenders to the Company and/or any of its Subsidiaries, together
with all other obligations of the Company and/or any of its Subsidiaries to any
Subordinated Lender (in each case, including any interest, fees or penalties
related thereto), howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent or now or hereafter existing, or due or to
become due are referred to as "Junior Liabilities". It is expressly understood
and agreed that the term "Senior Liabilities", as used in this Agreement, shall
include, without limitation, any and all interest, fees and penalties accruing
on any of the Senior Liabilities after the commencement of any proceedings
referred to in paragraph 4 of this Agreement, notwithstanding any provision or
rule of law which might restrict the rights of the Senior Lender, as against the
Company, its Subsidiaries or anyone else, to collect such interest, fees or
penalties, as the case may be.
2. Except as expressly otherwise provided in this Agreement or as the
Senior Lender may otherwise expressly consent in writing, the payment of the
Junior Liabilities shall be postponed and subordinated to the payment in full of
all Senior Liabilities. Furthermore, no payments or other distributions
whatsoever in respect of any Junior Liabilities shall be made, nor shall any
property or assets of the Company or any of its Subsidiaries be applied to the
purchase or other acquisition or retirement of any Junior Liability.
3. Each Subordinated Lender hereby subordinates all security interests
that have been, or may be, granted by the Company and/or any of its Subsidiaries
to such Subordinated Lender in respect of the Junior Liabilities, to the
security interests granted by the Company and/or any of its Subsidiaries to the
Senior Lender in respect of the Senior Liabilities.
4. In the event of any dissolution, winding up, liquidation, readjustment,
reorganization or other similar proceedings relating to the Company and/or any
of its Subsidiaries or to its creditors, as such, or to its property (whether
voluntary or involuntary, partial or complete, and whether in bankruptcy,
insolvency or receivership, or upon an assignment for the benefit of creditors,
or any other marshalling of the assets and liabilities of the Company and/or any
of its Subsidiaries, or any sale of all or substantially all of the assets of
the Company and/or any of its Subsidiaries, or otherwise), the Senior
Liabilities shall first be paid in full before any Subordinated Lender shall be
entitled to receive and to retain any payment or distribution in respect of any
Junior Liability.
5. Each Subordinated Lender will xxxx his books and records so as to
clearly indicate that their respective Junior Liabilities are subordinated in
accordance with the terms of this Agreement. Each Subordinated Lender will
execute such further documents or instruments and take such further action as
the Senior Lender may reasonably request from time to time request to carry out
the intent of this Agreement.
6. Each Subordinated Lender hereby waives all diligence in collection or
protection of or realization upon the Senior Liabilities or any security for the
Senior Liabilities.
7. No Subordinated Lender will without the prior written consent of the
Senior Lender: (a) attempt to enforce or collect any Junior Liability or any
rights in respect of any Junior Liability; or (b) commence, or join with any
other creditor in commencing, any bankruptcy, reorganization or insolvency
proceedings with respect to the Company and/or any of its Subsidiaries.
8. The Senior Lender may, from time to time, at its sole discretion and
without notice to any Subordinated Lender, take any or all of the following
actions: (a) retain or obtain a security interest in any property to secure any
of the Senior Liabilities; (b) retain or obtain the primary or secondary
obligation of any other obligor or obligors with respect to any of the Senior
Liabilities; (c) extend or renew for one or more periods (whether or not longer
than the original period), alter or exchange any of the Senior Liabilities, or
release or compromise any obligation of any nature of any obligor with respect
to any of the Senior Liabilities; and (d) release their security interest in, or
surrender, release or permit any substitution or exchange for, all or any part
of any property securing any of the Senior Liabilities, or extend or renew for
one or more periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor with
respect to any such property.
9. The Senior Lender may, from time to time, whether before or after any
discontinuance of this Agreement, without notice to any Subordinated Lender,
assign or transfer any or all of the Senior Liabilities or any interest in the
Senior Liabilities; and, notwithstanding any such assignment or transfer or any
subsequent assignment or transfer of the Senior Liabilities, such Senior
Liabilities shall be and remain Senior Liabilities for the purposes of this
Agreement, and every immediate and successive assignee or transferee of any of
the Senior Liabilities or of any interest in the Senior Liabilities shall, to
the extent of the interest of such assignee or transferee in the Senior
Liabilities, be entitled to the benefits of this Agreement to the same extent as
if such assignee or transferee were the Senior Lender, as applicable; provided,
however, that, unless the Senior Lender shall otherwise consent in writing, the
Senior Lender shall have an unimpaired right, prior and superior to that of any
such assignee or transferee, to enforce this Agreement, for the benefit of the
Senior Lender, as to those of the Senior Liabilities which the Senior Lender has
not assigned or transferred.
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10. The Senior Lender shall not be prejudiced in its rights under this
Agreement by any act or failure to act of any Subordinated Lender, or any
noncompliance of any Subordinated Lender with any agreement or obligation,
regardless of any knowledge thereof which the Senior Lender may have or with
which the Senior Lender may be charged; and no action of the Senior Lender
permitted under this Agreement shall in any way affect or impair the rights of
the Senior Lender and the obligations of any Subordinated Lender under this
Agreement.
11. No delay on the part of the Senior Lender in the exercise of any right
or remedy shall operate as a waiver of such right or remedy, and no single or
partial exercise by the Senior Lender of any right or remedy shall preclude
other or further exercise of such right or remedy or the exercise of any other
right or remedy; nor shall any modification or waiver of any of the provisions
of this Agreement be binding upon the Senior Lender except as expressly set
forth in a writing duly signed and delivered on behalf of the Senior Lender. For
the purposes of this Agreement, Senior Liabilities shall have the meaning set
forth in Section 1 above, notwithstanding any right or power of any Subordinated
Lender or anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense shall
affect or impair the agreements and obligations of any Subordinated Lender under
this Agreement.
12. This Agreement shall be binding upon each Subordinated Lender and upon
the heirs, legal representatives, successors and assigns of each Subordinated
Lender and the successors and assigns of any Subordinated Lender.
13. This Agreement shall be construed in accordance with and governed by
the laws of New York without regard to conflict of laws provisions. Wherever
possible each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been made and delivered this 18th
day of February , 2005.
THE HOLLANDSCHE TRUST NO. IT 8953/98
By:
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Name:
Title:
LAURUS MASTER FUND, LTD.
By:
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Name:
Title:
Acknowledged and Agreed to by:
CENTURION GOLD HOLDINGS, INC.
By:
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Name:
Title:
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