Exhibit 10.16
SUBORDINATION AGREEMENT
Borrower: Worldwide Medical Corporation
00 Xxxxxxxx Xxxxxx Xx.
Xxxx Xxxxxx, XX 00000
Lender: Camel Financial, Inc.
00000 Xxxxxx Xxxx.
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Creditor: Citadel Capital Management Group Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
THIS SUBORDINATION AGREEMENT is entered into among Worldwide Medical
Corporation, Inc. ("Borrower"), Camel Financial, Inc. ("Lender") and Citadel
Capital Management Group Corporation ("Creditor"). As of this date, February 20,
2001, Borrower is indebted to Creditor in the aggregate amount of Two Hundred
Fifty Thousand ($250,000.00). This amount is the total indebtedness of every
kind from Borrower to Creditor. Borrower and Creditor each want Lender to
provide financial accommodations to Borrower in the form of (a) new credit or
loan advances, (b) an extension of time to pay or other compromises regarding
all or part of Borrower's present indebtedness to Lender, or (c) other benefits
to Borrower. Borrower and Creditor each represent and acknowledge to Lender that
Creditor will benefit as a result of these financial accommodations from Lender
to Borrower, and Creditor acknowledges receipt of valuable consideration for
entering into this Agreement. Based on the representations and acknowledgements
contained in this Agreement, Creditor and Borrower agree with lender as follows:
DEFINITIONS. The following words shall have the following meanings when
used in this Agreement. Terms not otherwise defined in this Agreement shall have
the meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
Agreement. The world "Agreement" means the Subordination
Agreement, as this Subordination Agreement may be amended or modified
from time to time, together with all exhibits and schedules attached to
this Subordination Agreement from time to time.
Security Interest. The words "Security Interest" mean and include
without limitation any type of collateral security, whether in the form
of a lien, charge, mortgage, deed of trust, assignment, pledge, chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional
sale, trust receipt, lien or title retention contract, lease or
consignments intended as a security device, or any other security or
lien interest whatsoever, whether created by law, contract, or
otherwise.
Subordinated Indebtedness. The words "Subordinated Indebtedness"
mean and include without limitation all present and future indebtedness,
obligations, liabilities, claims, rights, and demands of any kind which
may be now or hereafter owing from Borrower to Creditor. The term
"Subordinated Indebtedness" is used in its broadest sense and includes
without limitation all principal, all interest, all costs, all sums paid
for the purpose of protecting the rights of a holder of security (such
as a secured party paying for insurance on collateral if the owner fails
to do so), all contingent obligations of Borrower (such as a guaranty),
and all other obligations, secured or unsecured, of any nature
whatsoever.
Superior Indebtedness. The words "Superior Indebtedness" mean and
include without limitation as present and future indebtedness,
obligations, liabilities, claims, rights, and demands of any kind which
may be now or hereafter owing from Borrower to Lender. The term
"Superior Indebtedness" is used in its broadest sense and includes
without limitation all principal, all interest, all costs, all sums paid
for the purpose of protecting Lender's rights in security (such as
paying for insurance on collateral if the owner fails to do so), all
contingent obligations of Borrower such as a guaranty, all obligations
arising by reason of Borrower's accounts with Lender (such as an over
advance on a line of credit), and all other obligations of Borrower to
Lender, secured or unsecured, of any nature whatsoever.
SUBORDINATION. All Subordinated Indebtedness of Borrower to Creditor is
and shall be subordinated in all respects to all Superior Indebtedness of
Borrower to Lender. If Creditor holds one or more Security Interests, whether
now existing or hereafter acquired, in any of Borrower's real property or
personal property, Creditor also subordinated all its Security Interests to all
Security Interest held by Lender, whether the Lender's Security Interest or
interests exist now or are acquired later.
PAYMENTS TO CREDITOR. Borrower will not make and Creditor will not
accept, at any time while any Superior Indebtedness is owing to Lender, (a) any
payment upon any Subordinated Indebtedness, (b) any advance, transfer, or
assignment of assets to Creditor in any form whatsoever that would reduce at any
time or in any way the amount of Subordinated Indebtedness, or (c) any transfer
or any assets as security for the Subordinated Indebtedness, except upon
Lender's prior written consent.
In the event of any distribution, division, or application, whether
partial or complete, voluntary or involuntary, by operation of law or otherwise,
of all or any part of Borrower's assets, or the proceeds of Borrower's assets,
in whether form, to creditors of Borrower or upon any indebtedness of Borrower,
whether by reason of the liquidation, dissolution or other winding-up of
Borrower, or by reason of any execution date, receivorship, insolvency or
bankruptcy proceeding, assignment for the benefit of creditors, proceedings for
reorganization, or readjustment of Borrower or Borrower's properties, then and
in such event, (a) the Superior Indebtedness shall be sold in full before any
payment is made upon its Subordinated Indebtedness, and (c) all payments and
distributions, of any kind or character and whether in cash, property, or
securities, which shall be payable or deliverable upon or in respect of the
Subordinated Indebtedness and be paid or delivered directly to Lender for
application in payment
of the amounts than due on the Superior Indebtedness until the Superior
Indebtedness shall have been paid in full.
In order that Lender may establish its right to prove claims and
receives for its own account, dividends based on the Subordinated Indebtedness,
Creditor does hereby assign all its right, title, and interest in such claims to
Lender. Creditor further agrees to supply such information and evidence, provide
access to and copies of such Creditor's records as may pertain to the
Subordinated Indebtedness, and execute such instruments as may be required by
Lender to enable Lender to enforce all such claims and collect all dividends,
payments, or other disbursements which may be made on the account of the
Subordinated Indebtedness. For such purposes, Creditor hereby irrevocably
authorizes Lender in its discretion to make and present for or on behalf of
Creditor such proofs of claims on account at the Subordinated Indebtedness as
Lender may deem expedient and proper and to make such claims in any such
proceeding and to receive and collect any and all dividends, payments or other
disbursements made thereon in whatever form the same may be paid or issued and
to supply the same on account of the Superior Indebtedness.
Should any payment, distribution, security or proceeds thereof be
received by Creditor at any time on the Subordinated Indebtedness contrary to
the terms of this Agreement, Creditor immediately will deliver the same to
Lender in precisely the form received (except for the endorsement or assignment
of Creditor where necessary), for application on or to secure the Subordinated
Indebtedness, whether it is due or not due, and until so delivered the same
shall be held in trust by Creditor as property of Lender. In the event Creditor
fails to make any such endorsement or assignment, Lender, or any of its officers
on behalf of Lender, is hereby irrevocably authorized by Creditor to make the
same.
CREDITOR'S NOTES. Creditor agrees to deliver to Lender, or Lender's
request, all notes of Borrower to Creditor, or other evidence of the
Subordinated Indebtedness, now held or hereafter acquired by Creditor, where
this Agreement remains in affect. At Lender's request, Borrower also will
execute and deliver to Creditor a promissory note evidencing any bank account or
claim nor or hereafter owed by borrower to Creditor, which role also shall be
delivered by Creditor to Lender. Creditor agrees not to sell, assign, pledge or
otherwise transfer any such notes except subject to al the terms and conditions
of this Agreement.
CREDITOR'S REPRESENTATIONS AND WARRANTIES. Creditor represents and
warrants to Lender that (a) no representations or agreements of any kind have
been made to Creditor which would limit or quality in any way the terms of this
Agreement; (b) this Agreement is executed at Borrower's request and not at the
request of Lender; (c) Lender has made no representation to Creditor as to the
creditworthiness of Borrower, and (d) Creditor has established adequate means of
obtaining from Borrower on a continuing basis information regarding Borrower's
financial condition. Creditor agrees to keep adequately informed from such means
of any facts, events, or circumstances which might in any way affect Creditor's
risks under this Agreement, and Creditor further agrees that Lender shall have
no obligation to disclose to Creditor information or material acquired by Lender
in the course of its relationship with Borrower.
CREDITOR'S WAIVERS. Creditor waives any right to require Lender: (a) to
make, extend, renew, or modify any loan to Borrower or to grant any other
financial accommodations to Borrower whatsoever; (b) to make any presentment,
protest, demand, or notice of any kind, including notice of any prepayment of
the Superior Indebtedness or of any nonpayment related to any Security Interest,
or notice of any action or nonaction on the part of Borrower, Lender, any
surety, endorser, or other guarantor in connection with the Superior
Indebtedness, or in connection with the creation of new or additional Superior
Indebtedness, (c) to resort for payment or to proceed directly or at once
against any person, including Borrower, (d) to proceed directly against or
exhaust any Security Interests held by Lender from Borrower, any other
guarantor, or any other person, (e) to pursue any other remedy within Lender's
power, or (f) to commit any act or omission of any kind, at any time, with
respect to any matter whatsoever.
LENDER'S RIGHTS. Lender may take or omit any and all actions with
respect to the Superior Indebtedness or any security interests for the Superior
Indebtedness without affecting whatsoever any of Lender's rights under this
Agreement. In particular, without limitation, Lender may, without notice of any
kind to Creditor, (a) make one or more additional secured or unsecured loans to
Borrower; (b) reasonably alter, compromise, renew, extend, accelerate, or
otherwise change the time for payment or other terms of the Superior
Indebtedness or any part thereof, including increases and decreases of the rate
of interest on the Superior Indebtedness; extensions may be repeated and may be
for longer than the original loan terms, (c) take and hold Security Interests
for the payment of the Superior Indebtedness, and exchange, enforce, waive, and
impose any such Security Interests, with or without the substitution of new
collateral; (d) release, substitute, agree not to xxx, or deal with any one or
more of Borrower's sureties, endorsers, or guarantors on any terms or manner
Lender chooses; (e) determine how, when and what application of payments and
credits, shall be made on the Superior Indebtedness; (f) apply such security and
direct the order or manner of sales thereof, as Lender in its discretion may
determine; and (g) assign this Agreement in whole or in part.
DEFAULT BY BORROWER. If Borrower becomes insolvent or bankruptcy, this
Agreement shall remain in full force and effect. In the event of a corporate
reorganization or corporate arrangement of Borrower under the provisions of the
Bankruptcy Code, as amended, this Agreement shall remain in full force and
effect and the court having jurisdiction over the reorganization or arrangement
is hereby authorized to preserve such priority and subordination in approving
any such plan or reorganization or arrangement.
DURATION AND TERMINATION. This Agreement will take effect when received
by Lender, without the necessity of any acceptance of Lender, in writing or
otherwise, and will remain in full force and effect until Creditor shall notify
Lender in writing at the address shown above to the contrary. Any such notice
shall not affect the Superior Indebtedness owed Lender by Borrower at the time
of such notice, nor shall such notice affect Superior Indebtedness thereafter
granted. In compliance with a commitment made by Lender to Borrower prior to
receipt of such notice, nor shall such notice affect any renewals of or
substitutions for any of the foregoing. Such notice shall affect only
indebtedness of Borrower to Lender arising after receipt of such notice and not
arising from financial assistance granted by Lender to Borrower in compliance
with Lender's obligations under a commitment. Any notice lodged with Lender
pursuant to the section entitled "Creditor's Notes" above need not be returned
until this Agreement has no further force or effect.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a
part of this Agreement:
Applicable Law. This Agreement has been delivered to Lender and
accepted by Lender in the State of California. If there is a lawsuit,
Creditor and Borrower agree upon Lender's request to submit to the
jurisdiction of the courts of Orange County, State of California.
Lender, Creditor and Borrower hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender,
Creditor or Borrower against the other. This Agreement shall be governed
by the construed in accordance with the laws of the State of California.
No provision contained in this Agreement shall be construed (a) as
requiring Lender to grant to Borrower or to Creditor any financial
assistance or other accommodations, or (b) as limiting or precluding
Lender from the exercise of Lender's own judgment and discretion about
amounts and times of payments in making loans or extending
accommodations to Borrower.
Amendments. This Agreement constitutes the entire understanding
and agreement of the parties as to the matters set forth in this
Agreement. No alteration of or amendment to this Agreement shall be
effective unless made in writing and signed by Lender, Borrower and
Creditor.
Expenses. Creditor and Borrower agrees to pay upon demand all of
Lender's costs and expenses, including legal expenses, incurred in
connection with the enforcement of this Agreement. Lender may be someone
else to enforce this Agreement, and Creditor and Borrower shall pay the
costs and expenses of such enforcement. Costs and expenses include
Lender's legal expenses whether or not there is a lawsuit, including
legal expenses for bankruptcy proceedings (and including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Creditor and Borrower
also shall pay all court costs and such additional fees as may be
directed by the court.
Successors. This Agreement shall extend to and bind the
respective heirs, personal representatives, successors and assigns of
the parties to this Agreement, and toe covenants of Borrower and
Creditor respecting subordination of the Subordinated Indebtedness in
favor of Lender shall extend to, include, and is enforceable by any
transferee or endorsee to whom Lender may transfer any or all of the
Superior Indebtedness.
Waiver. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed
by Lender. No delay or omission on the part of Lender in exercising any
right shall constitute as a waiver of such right or any other right. A
waiver by Lender of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provision of this Agreement.
No prior waiver by Lender, nor any course of dealing between Lender and
Creditor, shall constitute a waiver of any of Lender's rights or of any
of Creditor's obligations as to any future transactions. Whenever the
consent of Lender is required under this Agreement, the granting of such
consent by Lender in any instance shall not constitute continuing
consent to subsequent
instances where such consent is required and in all cases such consent
may be granted or withheld in the sole discretion of Lender.
BORROWER AND CREDITOR ACKNOWLEDGE HAVING READ ALL THE PROVISIONS
OF THIS SUBORDINATION AGREEMENT, AND BORROWER AND CREDITOR AGREE TO ITS
TERMS.
This Agreement is dated as of February 20, 2001.
BORROWER:
Worldwide Medical Corporation
CREDITOR:
Citadel Capital Management Group Corporation
