ASSIGNMENT
Exhibit 10.2
Execution Version
This ASSIGNMENT, dated as of the Effective Date, is entered into between General Electric
Capital Corporation (“the Assignor”) and EJ Funds LP (“the Assignee”).
The parties hereto hereby agree as follows:
Borrowers: |
Akorn, Inc., a Louisiana corporation, and Akorn (New Jersey), Inc., an Illinois corporation (the “Borrowers”) | |
Agent: |
General Electric Capital Corporation, as agent for the Lenders and L/C Issuers (in such capacity and together with its successors and permitted assigns, the “Agent”) | |
Credit Agreement: |
Credit Agreement, dated as of January 7, 2009, among the Borrowers, the other Credit Parties party thereto, the Lenders and L/C Issuers party thereto and the Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein without definition are used as defined in the Credit Agreement) | |
Trade Date: |
March 31, 2009 | |
Effective Date: |
Xxxxx 00, 0000 | |
| Xxxxxxxxx amount of | Aggregate amount of | ||||||||||||||
| Revolving Loan/ | Commitments or | Commitments or | |||||||||||||
| Commitment | principal amount of | principal amount of | |||||||||||||
| Assigned | Loans for all Lenders | Loans Assigned | Percentage Assigned | ||||||||||||
Revolving Commitment |
$ | 25,000,000 | $ | 25,000,000 | 100.00 | % | |||||||||
Section 1. Assignment. Assignor hereby sells and assigns to Assignee, and
Assignee hereby purchases and assumes from Assignor, Assignor’s rights and obligations in its
capacity as Lender under the Credit Agreement (including Liabilities owing to or by Assignor
thereunder) and the other Loan Documents, in each case to the extent related to the amounts
identified above (the “Assigned Interest”), for an amount equal to $5,508,704.11 (the
“Purchase Price”), which constitutes 100% of the principal amount outstanding under the
Revolving Commitment as of the date hereof, together with (a) all accrued and unpaid interest,
fees, expenses and other Obligations due and owing to the Assignor on the date hereof in any
capacity and (b) an exit fee in the amount of $25,000 (the “Exit Fee”). The Purchase Price
shall be paid in immediately available funds by wire transfer to the following account (the
“Collection Account”):
Account Number: 00000000
Account Name: Akorn/HFS3010
Account Name: Akorn/HFS3010
The consummation of the assignment contemplated above is herein referred to as the
“Assignment”.
Section 2. Representations, Warranties and Covenants of Assignor. Assignor
(a) represents and warrants to Assignee and the Agent that (i) it has full power and authority, and
has taken all actions necessary for it, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, (ii) it is the legal and beneficial owner of its Assigned
Interest and that such Assigned Interest is free and clear of any Lien and other adverse claims,
and (iii) by executing, signing and delivering this Agreement, the Person signing, executing and
delivering this Agreement on behalf of the Assignor is a duly authorized signatory for the Assignor
and is authorized to execute, sign and deliver this Agreement, (b) makes no other representation or
warranty and assumes no responsibility, including with respect to the aggregate amount of the Loans
and Commitments, the percentage of the Loans and Commitments represented by the amounts assigned,
any statements, representations and warranties made in or in connection with any Loan Document or
any other document or information furnished pursuant thereto, the execution, legality, validity,
enforceability or genuineness of any Loan Document or any document or information provided in
connection therewith, the existence, nature or value of any Collateral, the projected financial
performance of the Borrowers, and the existence of any Default or Event of Default under any Loan
Document, (c) assumes no responsibility (and makes no representation or warranty) with respect to
the financial condition of any Credit Party or the performance or nonperformance by any Credit
Party of any obligation under any Loan Document or any document provided in connection therewith
and (d) attaches any Notes held by it evidencing at least in part the Assigned Interest of such
Assignor (or, if applicable, an affidavit of loss or similar affidavit therefor) and requests that
the Agent exchange such Notes for new Notes in accordance with Section 1.2 of the Credit
Agreement.
Section 3. Representations, Warranties and Covenants of Assignee. Assignee
(a) represents and warrants to Assignor and the Agent that (i) it has full power and authority, and
has taken all actions necessary for Assignee, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, (ii) it is not an Affiliate of a Lender, (iii) it
is sophisticated with respect to decisions to acquire assets of the type represented by the
Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion
in making the decision for such assignment is experienced in acquiring assets of such type, (iv) by
executing, signing and delivering this Agreement, the Person signing, executing and delivering this
Agreement on behalf of the Assignee is a duly authorized signatory for the Assignee and is
authorized to execute, sign and deliver this Agreement and (v) both before and after giving effect
to this Agreement and the transactions contemplated hereby, it is Solvent and (b) appoints and
authorizes the Agent to take such action as administrative agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms
all obligations that, by the terms of the Loan Documents, are required to be performed by it as a
Lender, (d) confirms it has received such documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Agreement and shall continue to make
its own credit decisions in taking or not taking any action under any Loan
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Document independently and without reliance upon Agent, any L/C Issuer, any Lender or any
other Indemnitee and based on such documents and information as it shall deem appropriate at the
time, (e) acknowledges and agrees that, as a Lender, it may receive material non-public information
and confidential information concerning the Credit Parties and their Affiliates and their Stock and
agrees to use such information in accordance with Section 9.10 of the Credit Agreement, (f)
specifies as its applicable lending offices (and addresses for notices) the offices at the
addresses set forth beneath its name on the signature pages hereof and (g) to the extent required
pursuant to Section 10.1(f) of the Credit Agreement, attaches two completed originals of
Forms W-8ECI, W-8BEN, W-8IMY or W-9 and, if applicable, a portfolio interest exemption certificate.
The assignment fee of $3,500 required to be paid to the Agent under Section 9.9 of the Credit
Agreement is hereby waived by the Agent.
Section 4. Representations, Warranties and Covenants of Borrowers. Attached
hereto as Exhibit A is the Borrowing Base Certificate delivered by the Borrowers to the
Agent pursuant to the Credit Agreement for the fiscal period ending February 28, 2009. Each
Borrower represents and warrants that the Borrowing Base, without giving effect to any Reserve and
calculated as of the date hereof, is not less than $18,049,369.
Section 5. Conditions Precedent. This Agreement and the assignment
contemplated hereby shall not become effective until receipt by Assignor of the following, all of
which are material inducements to Assignor to enter into this Agreement:
(a) a duly executed counterpart of this Agreement from the Borrowers and Assignee;
(b) a notification letter to Bank of America, N.A. advising of the change of Agent and
providing updated collection account information, signed by all parties hereto (the “Bank
Account Letter”); and
(c) the Purchase Price in immediately available funds in the Collection Account no later than
2:00 p.m. on the Effective Date.
The effective date of the Assignment (the “Effective Date”) shall be March 31, 2009.
Section 6. Register. This Agreement (including its attachments) will be
delivered to the Agent for its acceptance and recording in the Register promptly after this
Agreement becoming effective.
Section 7. Effect. As of the Effective Date, (a) Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Agreement, have the rights and obligations
of a Lender under the Credit Agreement and (b) Assignor shall, to the extent provided in this
Agreement, relinquish its rights (except those surviving the termination of the Commitments and
payment in full of the Obligations) and be released from its obligations under the Loan Documents
other than those obligations relating to events and circumstances occurring prior to the Effective
Date.
Section 8. Distribution of Payments. Effective immediately after the
consummation of the Assignment, the Agent shall make all payments under the Loan Documents in
respect of each Assigned Interest to Assignee.
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Section 9. Resignation of Agent and L/C Issuer. Effective immediately after
the consummation of the Assignment, General Electric Capital Corporation resigns as Agent and L/C
Issuer under the Credit Agreement (General Electric Capital Corporation, in its capacity as the
former Agent, referred to herein as the “Prior Agent”). This Section 9 shall constitute
notice of such resignation to the Borrowers and the Assignee for purposes of subsections (a) and
(c) of Section 8.9 of the Credit Agreement. Assignee, as the sole Lender under the Credit
Agreement, hereby designates itself as the successor Agent under the Credit Agreement pursuant to
Section 8.9(a) thereof (“New Agent”). Each Borrower consents to the appointment of
Assignee as Agent.
Section 10. Delivery of Documents. Effective immediately after the
consummation of the Assignment, Prior Agent hereby agrees to deliver to New Agent, at the address
set forth on the signature pages to this Agreement, via overnight courier for delivery on
Wednesday, April 1, 2009, (i) the original stock certificate No. 1 evidencing 100 shares of Akorn
(New Jersey), Inc. (the “Stock Certificate”) and (ii) the original Revolving Note issued to
Assignor at closing. Promptly after the consummation of the Assignment, Prior Agent shall forward
the fully executed Bank Account Letter to Bank of America, N.A. via overnight courier and
telecopier. After the consummation of the Assignment, the Prior Agent will execute and delivery to
New Agent, at the request and expense of New Agent, such additional documents, instruments or
releases (all of which shall be prepared by New Agent, without recourse or warranty to the Prior
Agent and otherwise in form and substance reasonably satisfactory to the Prior Agent) as New Agent
may reasonably request to further evidence the assignment of all instruments of record in favor of
the Prior Agent with respect to the security interests and liens securing the obligations of the
Loan Parties under the Credit Agreement and the other related Loan Documents. Prior Agent
authorizes New Agent to file such assignments and amendments under the Uniform Commercial Code to
reflect the New Agent as secured party of record on all UCC financing statements of record naming
Prior Agent as secured party and a Loan Party as debtor.
Section 11. Forwarding of Payments. Prior Agent hereby agrees to promptly
forward any payments received after the Effective Date with respect to the Assigned Interest
(together with any and all cash or cash equivalent collateral) to New Agent at:
Bank Name: |
Northern Trust Bank | ||
ABA: |
000000000 | ||
Account No.: |
3800553104 | ||
Account Name: |
EJ Funds LP / Akorn Sweep Account | ||
Bank Contact: |
Xxxxxx Xxxxxxx | ||
| Tel # (000) 000 0000 |
Section 12. Miscellaneous. (a) The parties hereto, to the extent permitted by
law, waive all right to trial by jury in any action, suit, or proceeding arising out of, in
connection with or relating to, the Assignment and any other transaction contemplated hereby. This
waiver applies to any action, suit or proceeding whether sounding in tort, contract or otherwise.
(b) On and after the Effective Date, this Agreement shall be binding upon, and inure to the
benefit of, the Assignor, Assignee, the Agent and their Related Persons and their successors and
assigns.
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(c) This Agreement shall be governed by, and be construed and interpreted in accordance with,
the law of the State of New York.
(d) This Agreement may be executed in any number of counterparts and by different parties in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(e) Signature pages may be detached from multiple separate counterparts and attached to a
single counterpart. Delivery of an executed signature page of this Agreement by facsimile
transmission or Electronic Transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
(f) In consideration of Assignor entering into this Agreement, each Borrower hereby (a)
releases, acquits and forever discharges Assignor, in its capacity as Agent and a Lender, its
agents, employees, officers, directors, servants, representatives, attorneys, affiliates,
successors and assigns (collectively, the “Released Parties”) from any and all liabilities, claims,
suits, debts, liens, losses, causes of action, demands, rights, damages, costs and expenses of any
kind, character or nature whatsoever, known or unknown, fixed or contingent, that such Borrower may
have or claim to have now against Assignor or which might arise out of or be connected with any act
of commission or omission of Assignor existing or occurring on or prior to the date of this
Agreement, including, without limitation, any claims, liabilities or obligations relating to or
arising out of or in connection with the Loans, the Credit Agreement or the other Loan Documents
(including, without limitation, arising out of or in connection with the initiation, negotiation,
closing or administration of the transactions contemplated thereby or related thereto), from the
beginning of time until the execution and delivery of this release and the effectiveness of this
Agreement (the “Released Claims”) and (b) agree forever to refrain from commencing, instituting or
prosecuting any lawsuit, action or other proceeding against the Released Parties with respect to
any and all Released Claims.
(g) In consideration of Assignor entering into this Agreement, Assignee hereby, except with
respect to the express representations and warranties made by Assignor under Section 2 hereof, (a)
releases, acquits and forever discharges Assignor (in its capacity as a Lender and Assignor and not
in its capacity as an Agent), its agents, employees, officers, directors, servants,
representatives, attorneys, affiliates, successors and assigns (collectively, the “Assignor
Released Parties”) from any and all liabilities, claims, suits, debts, liens, losses, causes of
action, demands, rights, damages, costs and expenses of any kind, character or nature whatsoever,
known or unknown, fixed or contingent, that Assignee may have or claim to have now against Assignor
or which might arise out of or be connected with any act of commission or omission of Assignor
existing or occurring on or prior to the date of this Agreement, including, without limitation, any
claims, liabilities or obligations relating to or arising out of or in connection with the Loans,
the Credit Agreement, this Agreement or the other Loan Documents (including, without limitation,
arising out of or in connection with the initiation, negotiation, closing or administration of the
transactions contemplated thereby or related thereto), from the beginning of time until the
execution and delivery of this release and the effectiveness of this Agreement (the “Assignor
Released Claims”) and (b) agree forever to refrain from commencing, instituting or prosecuting any
lawsuit, action or other proceeding against the Assignor Released Parties with respect to any and
all Assignor Released Claims.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| GENERAL ELECTRIC CAPITAL CORPORATION, as Assignor | ||||||
| By: | /s/ Xxxxxx Cloud | |||||
| Name: Xxxxxx Cloud | ||||||
| Title: Duly Authorized Signatory | ||||||
| EJ FUNDS LP, as Assignee | ||||||
| By: EJ Financial Enterprises, Inc. | ||||||
| Its: General Partner | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: Xxxx X. Xxxxxx | ||||||
| Title: President | ||||||
| Lending Office (and
address for notices) for any other
purpose: |
||||||
| EJ Funds LP | ||||||
| 000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000 | ||||||
| Xxxx Xxxxxx, XX 00000 | ||||||
| Attention: Xxx Xxxxxx | ||||||
| Fax # (000) 000 0000 | ||||||
ACCEPTED and AGREED
this 31st day of March, 2009:
this 31st day of March, 2009:
GENERAL ELECTRIC CAPITAL CORPORATION
as Agent
as Agent
By: |
/s/ Xxxxxx Cloud
|
|||
| Name: Xxxxxx Cloud | ||||
| Title: Duly Authorized Signatory | ||||
| AKORN, INC. | ||||
By: |
/s/ Xxxxxxx X. Xxxxxxxx
|
|||
| Name: Xxxxxxx X. Xxxxxxxx | ||||
| Title: Chief Financial Officer | ||||
| AKORN (NEW JERSEY), INC. | ||||
By: |
/s/ Xxxxxxx X. Xxxxxxxx
|
|||
| Name: Xxxxxxx X. Xxxxxxxx | ||||
| Title: Chief Financial Officer | ||||
Exhibit A
[attach Borrowing Base Certificate]
[attach Borrowing Base Certificate]
Exhibit A
