INTERCREDITOR AGREEMENT
Exhibit 10.5
THIS
INTERCREDITOR AGREEMENT (the “Agreement”) is dated as
of February __, 2017, and is between “Agents” _____________,
with an address of _____________________, ________, and __________,
with an address of _____________________, ________, and
“Participant” or
“Participants” on Schedule
I attached hereto, with their address set forth opposite their
names.
In this
Agreement, the following terms shall have the following respective
meanings:
“Financing Documents”
means the Note Purchase Agreement, the Senior Secured Convertible
Promissory Notes, and all agreements, instruments and documents
referred to in the definition of “Financing” together
with all other agreements, instruments and documents executed and
delivered in connection with the Financing.
“Financing” means the
secured loan or loans made by Participants to FluoroPharma Medical,
Inc., a Nevada corporation (“Borrower”), pursuant to
the Senior Secured Convertible Notes in the aggregate amount of up
to $1,000,000 due February __, 2018 (the “Notes”), Security
Agreement, UCC-1 Financing Statements and other Financing
Documents.
“Participation” means the
interest of a party in the Financing.
“Participation Amount”
means the dollar amount of the respective Note of Borrower to each
Participant.
“Proportionate Share”
means each Participant’s percentage interest in the then
outstanding Notes.
“Pro Rata” means, in
reference to allocation of expenses or losses or to the application
or distribution of payments or other monies received in connection
with the Financing, in the same proportion of the applicable
parties’ interest in the Financing is to the entire
outstanding balance of the Financing at the date of such
allocation, application or distribution.
WHEREAS,
Participants have made the Financing; and
WHEREAS,
Participants desire to set forth the agreement between them with
respect to the Financing and the authorization of Agents acting on
behalf of all Participants.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Agents and Participants hereby agree as
follows:
1. Nature and Description of
Participation. No Participation shall have a priority
interest over any other Participation regardless when a Participant
becomes a party to this Agreement. Participant’s
Participation has no recourse to Agents, except to enforce the
provisions of this Agreement. Participant may not sell, assign,
transfer or otherwise dispose of its Participation (or any interest
therein) except in accordance with Section 5 of this Agreement. The
Financing is secured as provided in the Financing Documents, and
each Participation includes an undivided Pro Rata interest in all
collateral for the Financing, and all rights with respect thereto
on and after the date hereof. Notwithstanding anything to the
contrary contained in the Financing Documents, Participant hereby
acknowledges and agrees that the interest payable to Participant
after the date hereof on its Participation will be at the rate set
forth on Participant’s respective Note. Agents will not be
entitled to payment for their services hereunder.
2. Financing Administration.
Agents shall service and administer the Financing in their sole and
absolute discretion. Agents agree to employ reasonable commercial
practices in the administration of the Financing. Participant
hereby appoints Agents as Participant’s agent for purposes of
servicing and administration. In connection with such servicing and
administration, the following provisions shall apply:
(a) Upon written
request of Participant, Agents shall forward to Participant copies
of any other documents, instruments or certificates delivered to
them in connection with the Financing and all financial statements
and other information that they receive from Borrower;
(b) Borrower shall pay
all interest due and all payments of principal directly to
Participant in accordance with the Notes;
(c) Agents will not,
without the prior written consent of the holders of a majority in
outstanding principal of the Notes, (i) modify the interest rates,
maturities, or maximum amounts of the Notes; (ii) make or consent
to any release, substitution or exchange of any collateral obtained
pursuant to any Security Agreement; (iii) accelerate any of the
Notes; (iv) sell, assign or transfer any of said collateral (except
upon immediate remittance to each Participant of its Pro Rata
interest therein after deducting all expenses in connection
therewith); or (v) waive any claim against the Borrower or any
guarantor, standby creditor or obligor in connection with any of
the Financing. Agents are solely authorized to file additional,
amended or supplement Schedule I’s hereto and UCC Financing
Statements with the appropriate authorities to reflect additional
Participants or assignees of any Participant;
(d) Agents agree, to
the extent that Agents have actual knowledge thereof, to give
Participant reasonably prompt notification of the occurrence of any
material event of default under the Financing Documents (any such
material event of default or event being referred to herein as a
“Default”);
(e) Upon the occurrence
of a Default, Agents may, with the prior written consent of the
holders of a majority in outstanding principal of the Notes, which
consent shall not be unreasonably withheld, delayed or conditioned,
determine a course of action, if any, to be taken to cure such
Default or otherwise protect or enforce the rights of the Agents
and Participants. Each decision concerning the course of action to
be followed shall be made by Agents, with the prior written consent
of the holders of a majority in outstanding principal of the Notes,
which consent shall not be unreasonably withheld, delayed or
conditioned;
(f) Upon the occurrence
of a Default, Agents may, with the prior written consent of the
holders of a majority in outstanding principal of the Notes, which
consent shall not be unreasonably withheld, delayed or conditioned,
proceed, as agent for the parties hereto, to use any legal remedies
at their disposal to collect the Financing. The selection of such
remedies and the manner of exercise of its rights shall be as
determined by Agents, with the prior written consent of the holders
of a majority in outstanding principal of the Notes, which consent
shall not be unreasonably withheld, delayed or conditioned. All
sums received by Agents on account of the Financing in any
collection proceedings shall, after deducting the charges and
expenses thereof paid or to be paid by Agents, be paid within two
(2) business days, pro rata, to Participants;
(g) All payments made
by any party hereto shall be made in federal or other immediately
available funds, unless otherwise agreed by the parties; and
payments required to be made by any party may be delayed by such
party until it is in possession of cleared, immediately available
funds; and
(h) An Agent may resign
at any time upon thirty (30) days prior written notice to the
Participants, in which case the Participants may choose to select
one or more replacement Agent(s) upon vote of the holders of the
majority of the outstanding Participation Amount.
3. Application of Payments and
Expenses. Agents shall remit to Participants if, as and when
Agents shall have finally collected the same, Participant’s
Pro Rata share of all principal and interest payments made by
Borrower with respect to the Financing after the date hereof,
provided, however, interest payments to Participant shall be as set
forth in Section 3 hereunder. Any and all loss or losses with
respect to the Financing shall be borne by Participants on a pro
rata basis. All out-of-pocket expenses incurred by Agents in the
servicing and administration (including all costs of collection) of
the Financing shall be shared by and Participants on a pro rata
basis.
4. Liability and Representation.
Participant acknowledges that neither Agents nor any of their
officers, directors, employees or agents shall be liable for any
action taken hereunder or under the terms of the Financing, or in
connection herewith or therewith, unless caused by their lack of
good faith or willful misconduct. Agents shall not be responsible
for any recitals, statements, representations or warranties
contained in or in any instruments, agreement or other
documentation in connection with the Financing or thereby
contemplated or for the execution, effectiveness, genuineness,
validity or enforceability thereof, or be required to make any
inquiry concerning the performance or observance of any of the
terms, provisions or conditions thereof.
Participant
acknowledges that counsel to Borrower has served as counsel to
Borrower only, and such representation has not been and will not be
relied upon by Participant.
5. Assignment. In the event
Participant desires to assign its Notes and rights hereunder, it
shall deliver a written notification (the “Notification”) to Agents,
which shall include (i) the identity of the proposed assignee, (ii)
a complete and accurate description of the price, terms and
conditions of such proposed assignment and (iii) the written
assumption by assignee in form and substance satisfactory to Agents
and Borrower’s counsel whereby the assignee has assumed all
of the obligations and undertakings of Participant under this
Agreement, together with such opinions of counsel and other
supporting documentation as Agents or Borrower’s counsel may
reasonably require. Participant may not assign all or any part of
its Participation if such assignment has been objected to in
writing within ten (10) days after the date of the Notification.
Any assignment made or purported to be made in violation of this
Section shall be void ab initio and of no force and effect. As used
herein the term “assign” shall mean sell, assign,
transfer or otherwise dispose of any interest in the
Participation.
6. Setoff. If Participant realizes
any proceeds or monies from Borrower or holds, attaches or sets off
any deposits or credits of Borrower, Participant shall immediately
pay to Agents the entire amount thereof (without any deduction for
any reason, including without limitation other obligations, if any,
of Borrower to Participant) for application to the
Financing.
7. Contribution. In the event
that, at any time, Agents or Participant shall be sued or
threatened with suit by a trustee, receiver, assignee or similar
fiduciary on account of any alleged unlawful or voidable preference
or fraudulent transfer alleged to have been received from Borrower
on account of the Financing, or any transaction relating thereto,
then upon the occurrence of any such event, any monies paid in
satisfaction or compromise of such suit, claim or demand, or in
satisfying any prior lien asserted with respect to any of the
collateral and all expenses, costs and attorneys’ fees
incurred by any such party shall be paid by Participants on a pro
rata basis.
8. Notices. All notices required
or permitted hereunder shall be in writing and shall be deemed
given upon mailing by depositing the same in the U.S. mail, first
class postage prepaid, and addressed to the party being notified at
its Notice Address set forth at the beginning of this Agreement or
on Schedule I hereto.
9. Authorization; Applicable Laws;
Headings; Binding Effect; Entire Agreement; Counterparts.
Agents, Borrower and Participants hereby represent that each is
authorized to execute this Agreement and to participate in the
Financing upon the terms stated herein and in the Financing
Documents. This Agreement shall inure to and be binding upon the
successors and permitted assigns of the parties hereto, and shall
be construed in accordance with the laws of the State of Nevada.
The headings contained herein are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter
hereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one and the same
agreement effective upon execution of a counterpart hereof on
behalf of each party hereto.
10. Other Participants.
Participants acknowledge that other holders of the Notes may become
parties hereto from time to time by executing a copy of this
Agreement, which shall be cosigned by Agents, without any further
action by the Participants then a party to this
Agreement.
IN
WITNESS WHEREOF, Borrower, Agents and each Participant have caused
this Agreement to be executed by their duly authorized officers as
of the date first above written, each as a sealed
instrument.
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PARTICIPANTS:
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BORROWER:
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____________________________________
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By:
__________________________________
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____________________________________
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AGENTS:
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____________________________________
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_____________________________________
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____________________________________
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_____________________________________
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SCHEDULE I
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Name of Lender
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Lender’s Address
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Principal Amount of Note Due Lender
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$__________
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$__________
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$__________
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$__________
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TOTAL
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$__________
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