EXHIBIT 10.12
INTERCREDITOR AGREEMENT
FOR PARI PASSU
INDEBTEDNESS OF
SURGILIGHT, INC.
INTERCREDITOR AGREEMENT, dated April 20, 2007, among Surgilight,
Inc.,
a Florida corporation (the "Company"), GEM Surgilight Investors LLC
("GEM")
Colette Cozean ("Cozean") and Stuart Michelson ("Michelson"), where
GEM,
Cozean and Michelson are holders of indebtedness ("the
Indebtedness") secured
or to be secured by a lien with respect to all or any portion of
the
Collateral (as defined below) pursuant to the terms of this
Intercreditor
Agreement. The
term "Collateral" as used herein means the following:
Intangible Assets, which include, but are not limited to, Patents,
Assigned
Patents, Patent Licenses, and Patents Pending, of the Company, in
which
Cozean and Michelson have a lien or security interest, secured by
UCC-1
financing statements filed on December 3, 2004, and which shall be
subject to
a lien or security interest in favor of GEM, in the priorities
specified in
this Intercreditor Agreement.
WHEREAS, the Company has entered into Consulting Agreements with
Cozean
and a Repayment Agreement with Michelson (the "Cozean Agreement"
and
"Michelson Agreement," respectively), each dated April 20, 2007,
providing
for the payment of various sums to Cozean and Michelson;
WHEREAS, the Cozean and Michelson Agreements are secured by liens
on
the Collateral;
WHEREAS, the Company wishes to enter into a Secured Line of Credit
Loan
Agreement (the "Loan Agreement") with GEM, under which GEM may lend
to the
Company in installments, from time to time, up to
$2,500,000.00;
WHEREAS, the Company proposes to provide GEM with a lien or
security
interest in the Collateral as partial security for Indebtedness of
the
Company under the Loan Agreement;
WHEREAS, it has been agreed by Cozean and Michelson that the
Company be
permitted to obtain financing from GEM under the Loan Agreement to
finance
the costs of its operations and to pay the sums due under the
Cozean and
Michelson Agreements;
WHEREAS, the Cozean and Michelson Agreements permit the Company
to
create or cause to be created additional liens and security
interests in the
Collateral in favor of GEM which will have equal priority with the
liens of
the Cozean and Michelson Agreements pursuant to an Intercreditor
Agreement
and Cozean and Michelson and the Company, upon fulfillment of
certain
conditions precedent, to execute and deliver an Intercreditor
Agreement in
substantially the form hereof to GEM;
WHEREAS, the Company has entered into certain documents and
agreements
providing for the grant to GEM of liens and security interests in
all of the
property and assets constituting the Collateral in which Cozean and
Michelson
have a lien or security interest, (the property and assets
constituting the
Collateral in which each of the Cozean, Michelson, and GEM have
obtained
liens or security interests being referred to herein as the "Pari
Passu
Collateral");
WHEREAS, the aggregate outstanding principal amount of the
Cozean
Agreement at the date hereof is $1,052,301.43;
WHEREAS, the aggregate outstanding principal amount of the
Michelson
Agreement at the date hereof is $178,683;
WHEREAS, the aggregate outstanding principal amount of the
Indebtedness
owed by the Company to GEM at the date hereof is $0, with such
Indebtedness
to be increased from time to time up to the total principal amount
of
$2,500,000.00;
WHEREAS, the parties hereto desire to set forth their agreement as to
the nature of priority of the liens and security interests held by
Cozean and
Michelson and GEM in the Pari Passu Collateral and certain other
matters
related thereto;
NOW, THEREFORE, in consideration of the mutual premises and
agreements
herein contained it is hereby agreed as follows:
SECTION 1.
Definitions. As
used in this Agreement, the following
terms have the meanings hereinafter set forth:
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C.
section 101 et seq.
"Bankruptcy Law" means Title 11, United States Code, and any
other
state or federal insolvency, reorganization, moratorium or similar
law for
the relief of debtors.
"Bankruptcy Proceeding" means any proceeding commenced under
any
Bankruptcy Law.
"Pari Passu Parties" means, collectively, Cozean, Michelson and
GEM.
SECTION 2. Lien
Acknowledgement.
(a) The Company and
each of the
Pari Passu Parties hereby agrees that each lien or security
interest of
Cozean and Michelson in the property and assets constituting the
Pari Passu
Collateral, to the extent of the obligations secured by such lien
or security
interest, shall be equal in priority with (i) each lien or security
interest
of GEM in the property and assets constituting the Pari Passu
Collateral, to
the extent of the obligations secured by such liens or security
interests.
SECTION 3. Lien
Priority. The
priorities of the
liens or security
interests established, altered or specified herein are
applicable
irrespective of: (i)
the time or order of attachment or perfection thereof;
(ii) the method of
perfection; (iii) the
time or order of filing or
recording of financing statements or other instruments; or (iv)
any
amendments to the liens or security interest established, altered
or
specified herein, provided that such amendment does not alter the
aggregate
principal amount of the Indebtedness secured by such lien or
security
interest; and (v) the
time or order of foreclosure, taking of possession or
the exercise of any remedy; provided, however, that the
priorities of any
liens or security interests which are not established, altered or
specified
herein shall be unaffected and shall exist and continue in
accordance with
applicable law. The
agreements herein are solely for the purpose of
establishing the relative priorities of the interests of the Pari
Passu
Parties in the Pari Passu Collateral and shall not inure to the
benefit of
any other Person.
SECTION 4.
Controlling Party. The Pari Passu Party or
Parties
holding a majority in principal amount of Indebtedness secured by
the Pari
Passu Collateral (the "Controlling Party") shall have the sole
right, without
the affirmative consent of any of the other Pari Passu Parties (the
"Minority
Party(ies)"), and on behalf of itself and each Pari Passu Party, to
(i) take
any action, or fail to take any action, to enforce or exercise any
right or
remedy with respect to the Pari Passu Collateral and to foreclose
upon,
collect, dispose of the Pari Passu Collateral or any portion
thereof; and
(ii) exercise any right or remedy, or decline to exercise any right
or
remedy, with respect to the Pari Passu Collateral in any
Bankruptcy
Proceeding, including, without limitation, any right of
election under
Sections 1111(b) or 365(h) of the Bankruptcy Code, any other rights
of
election, determinations, proofs of claims or other rights or
remedies in
connection with any Bankruptcy Proceeding; provided that each
Minority Party
shall have the right to file its own proof(s) of claim in any
Bankruptcy
Proceeding.
If the Controlling
Party as defined above fails to take any action
within 30 days after receipt of written notice from the Minority
Party(ies),
requesting it to take action to foreclose upon, collect, dispose
of, or
exercise any right or remedy with respect to the Pari Passu
Collateral or any
portion thereof, then a Minority Party or Parties shall be entitled
to act as
the Controlling Party, and upon commencing action to foreclose
upon, collect,
dispose of, or exercise any right or remedy with respect to the
Pari Passu
Collateral or any portion thereof, shall be deemed the Controlling
Party and
the other Pari Passu Parties shall be deemed the Minority
Party(ies) for
purposes of Section 5 below.
SECTION 5.
Minority Party Agreements. In accordance with
paragraph
4 hereof, the Minority Party(ies) agree(s) (regardless of whether
it agrees,
disagrees or abstains with respect to any action or failure to act
by the
Controlling Party) that the Controlling Party shall have the
authority to act
or fail to act, as it deems necessary in its sole discretion, with
respect to
the rights and remedies of all of the Pari Passu Parties and that
the
Controlling Party shall have no liability for acting or failing to
act
(provided such action or failure to act does not conflict with the
express
terms of this Agreement). Each Pari Passu Party further
acknowledges and
agrees that, until the Indebtedness of all other Pari Passu Parties
is no
longer outstanding, the only right of such Pari Passu Party with
respect to
the Pari Passu Collateral is to be secured by the Pari Passu
Collateral as
and to the extent provided in its respective loan document or
agreement and
as provided herein and to receive a share of the proceeds of the
Pari Passu
Collateral, if any, to the extent provided under Section 6 hereof;
provided,
however, that, until the Indebtedness of all Pari Passu Parties is
no longer
outstanding, in no event shall any rights or benefits accorded any
Pari Passu
Party include any right to challenge, contest or dispute any
acti
