INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of March ___, 2013
(this "Agreement"),
is among _______________ (the "Subordinating Creditor"),
BioZone
Pharmaceuticals, Inc. (the "Debtor") and MIDLAND AMERICAN CAPITAL CORPORATION
(the "Senior Creditor").
RECITALS
A.
The Senior Creditor has or expects to acquire a security interest in assets
of the Debtor in which the Subordinating Creditor has an interest, including but
not limited to the Senior Creditor Collateral.
B.
The Debtor and Subordinating Creditor are parties to the Subordinating
Creditor Agreements.
C.
The Creditors are executing this Agreement to set forth their lien
priorities with respect to the Senior Creditor Collateral.
NOW, THEREFORE, in consideration of the premises, and intending to be legally
bound hereby, the Creditors hereby agree as follows:
AGREEMENT
1. DEFINITIONS.
The following terms used herein shall have the following
meaning.
All capitalized terms not herein defined shall have the meaning set
forth in the Uniform Commercial Code:
1.1
"Bankruptcy Code" - Title 11 of the United States Code.
1.2
"Chosen State" - New York.
1.3
"Creditors" -The Subordinating Creditor and the Senior Creditor.
1.4
"Debtor" - See Preamble.
1.5
"Guarantor" - Any entity which has guaranteed any portion of the Senior
Creditor Obligations or the Subordinating Creditor Obligations.
1.6
"Party" - Each of the Subordinating Creditor, the Debtor, and the Senior
Creditor.
1.7
"Senior Creditor" - See preamble.
1.8 "Senior Creditor Collateral" - All Debtor's present and future Accounts,
Instruments, Documents, Chattel Paper, Inventory, Equipment, Intellectual
Property and General Intangibles and returned goods and the direct and indirect
proceeds thereof.
1
1.9
"Senior Creditor Obligations" - Obligations of the Debtor to the Senior
Creditor secured by the Senior Creditor Collateral.
1.10
"Subordinating Creditor" - See Preamble.
1.11
"Subordinating Creditor Agreements" - The agreement(s) listed in Exhibit
A.
1.12
"Subordinating Creditor Obligations" - Indebtedness owed by the Debtor to
the Subordinating Creditor secured by Senior Creditor Collateral.
2. PRIORITY.
Notwithstanding the terms or provisions of any agreement or
arrangement which either Creditor may now or hereafter have with the Debtor or
any rule of law, and irrespective of the time, order, or method of attachment or
perfection of any security interest or the recordation or other filing in any
public record of any financing statement, the Senior Creditor Obligations and
any security interests in the Senior Creditor Collateral
held by the Senior
Creditor, whether or not perfected, are and shall remain senior to the
Subordinating Creditor Obligations, security interest
therein now or hereafter
held by the Subordinating Creditor, and any guaranties now or hereafter executed
by any Guarantor.
3. ENFORCEMENT OF SECURITY INTEREST.
3.1
The Subordinating Creditor shall have no right to take any action with
respect to the Senior Creditor Collateral, whether by judicial or non-judicial
foreclosure, notification to the Debtor's account debtors, the seeking of the
appointment of a receiver for any portion of the Debtor's assets, setoff, or
otherwise, unless and until all Senior Creditor Obligations have been fully and
indefeasibly paid.
3.2
If the Subordinating Creditor, in contravention of the terms of this