FOURTH AMENDMENT, WAIVER AND CONSENT TO LOAN AGREEMENT
FOURTH
AMENDMENT, WAIVER AND CONSENT
TO
THIS
FOURTH AMENDMENT, WAIVER AND CONSENT TO LOAN AGREEMENT, dated as of June 28,
2007 (the “Fourth
Amendment”),
is
made and entered into by and between Acura Pharmaceuticals, Inc., a New York
corporation (“Borrower”),
and
Xxxxx
Partners III, L.P., a Delaware limited partnership, as Agent under that certain
Noteholders Agreement dated as of February 6, 2004 (“Lender”).
Capitalized terms used herein and not otherwise defined shall have the meaning
provided in the Loan Agreement (as defined below).
RECITALS
WHEREAS,
Borrower
and Lender (as assignee of Xxxxxx Pharmaceuticals, Inc. (“Xxxxxx”)) are parties
to that certain Loan Agreement, dated as of March 29, 2000, as amended by a
certain Amendment to Loan Agreement dated as of March 31, 2000, as further
amended by a certain Second Amendment to Loan Agreement dated as of December
20,
2002 and as further amended by a certain Third Amendment, Waiver and Consent
to
Loan Agreement dated as of February 6, 2004 (the “Third Amendment”) (as so
amended, the "Loan Agreement"); and
WHEREAS,
in
accordance with the terms of the Loan Agreement, Borrower previously issued
to
Xxxxxx two Promissory Notes, the first dated December 20, 2002 in the principal
amount of $17,500,000 (the "Replacement Note"), and the second dated December
20, 2002 in the principal amount of $3,901,331 (the "$3.9 Million Note", and
together with the Replacement Note, collectively, the "Old Notes"); and
WHEREAS,
in order
to allow the Borrower to complete each of the transactions contemplated pursuant
to that certain Term Sheet dated December 19, 2003 between the Borrower and
the
other signatories thereto (the "Term Sheet Transactions"), at Borrower’s request
and in accordance with the Third Amendment, Lender consented to the Term Sheet
Transactions and waived certain restrictions contained in the Loan Agreement;
and
WHEREAS,
pursuant
to a certain Umbrella Agreement dated as of February 6, 2004 (the "Umbrella
Agreement") by and among Borrower, Xxxxxx, Care Capital Investment II, L.P.,
Essex Woodlands Health Ventures V, LP, Xxxxx Partners III, L.P. and the other
signatories thereto (collectively, but excluding the Borrower and Xxxxxx, the
"Investor Group"), in consideration of Borrower's payment to Xxxxxx of
$4,000,000, Xxxxxx (i) cancelled and discharged in full the $3.9 Million Note,
(ii) forgave $12,500,000 in principal amount of the Replacement Note and amended
and restated the Replacement Note as provided in the Third Amendment, and (iii)
amended the Loan Agreement as provided in the Third Amendment (collectively,
the
"2004 Note and Loan Agreement Amendments"); and
WHEREAS,
pursuant
to the terms of the Umbrella Agreement, Xxxxxx transferred and conveyed to
the
Investor Group all of its right, title and interest in and to the Loan Agreement
and Replacement Note after giving effect to the 2004 Note and Loan Agreement
Amendments;
WHEREAS,
simultaneous with the completion of the transactions contemplated in the
Umbrella Agreement, the Replacement Note was amended and restated in the form
of
Exhibit A to the Third Amendment to Loan Agreement (the “2004 Replacement
Note”); and
WHEREAS,
the
Borrower and the Investor Group desire to further amend the Loan Agreement
pursuant to this Fourth Amendment to amend and restate the 2004 Replacement
Note
to provide for the extension of the Maturity Date of the 2004 Replacement Note
from June 30, 2007 to September 30, 2007.
NOW,
THEREFORE,
the
parties hereto agree as follows:
AGREEMENT
1. Article
One of the Loan Agreement is hereby amended in its entirety to read as
follows:
"1.
AMOUNT AND TERMS OF LOANS.
"1.1
Term
Loans.
Subject
to the terms herein, Xxxxxx Pharmaceuticals, Inc. (“Xxxxxx”) has previously
loaned to Borrower the aggregate principal amount of Twenty One Million Four
Hundred One Thousand Three Hundred Thirty One Dollars ($21,401,331) (the
"Original Loan"). Effective the date of the Third Amendment to the Loan
Agreement, (i) Xxxxxx forever forgave, discharged, cancelled and rendered null
and void Borrower's obligation to repay Sixteen Million Four Hundred One
Thousand Three Hundred Thirty One Dollars ($16,401,331) in principal amount,
plus accrued and unpaid interest on such principal amount, of the Original
Loan,
resulting in a remaining principal balance of the Original Loan of Five Million
Dollars ($5,000,000) (the "Loan"), and (ii) Xxxxxx forever forgave and
discharged Borrower's obligation to pay interest under the Original Loan, as
evidenced by the Old Notes, to the extent accrued and unpaid through and
including the date of the Third Amendment to the Loan Agreement. The Old Notes
previously issued by Borrower to Xxxxxx hereunder were amended or cancelled,
as
appropriate, in accordance with Section 1.2 below. Notwithstanding any
prepayment of the Loan by Borrower, sums repaid may not be
re-borrowed.
1.2
Promissory
Notes.
Borrower’s obligation to pay the principal of, and interest on, the Loan shall
be evidenced by a promissory note dated as of December 20, 2002 duly executed
and delivered by Borrower in the form attached as Exhibit A to the Fourth
Amendment to the Loan Agreement and representing the $5,000,000 principal
balance of the Loan (the “Note”), which Note shall be an amendment and
restatement of the 2004 Replacement Note. Upon execution and delivery of the
Note, the 2004 Replacement Note shall be null and void and of no further legal
force or effect. Lender agrees to promptly return to Borrower the 2004
Replacement Note after receipt of the Fourth Amendment to the Loan Agreement
and
the Note."
2. Section
12.1 of the Loan Agreement is hereby amended by adding the following definitions
in alphabetical order:
“2004
Note and Loan Agreement Amendments” shall mean the amendments to the Note and
the Loan Agreement effected pursuant to the Third Amendment to Loan
Agreement.”
“2004
Replacement Note” shall mean the Replacement Note in the principal amount of $5
million issued to Xxxxxx (and simultaneously assigned to Lender) pursuant to
the
Third Amendment to Loan Agreement.”
3. Limitation
of Amendment.
Except
as amended above, the terms of the Loan Agreement shall remain in full force
and
effect.
4. Governing
Law.
This
Fourth Amendment and the rights of the parties hereunder shall be governed
in
all respects by the laws of the State of New York wherein the terms of this
Fourth Amendment were negotiated.
5. Counterparts.
This
Fourth Amendment may be executed in any number of counterparts, including by
facsimile, each of which shall be an original, but all of which together shall
constitute one instrument.
IN
WITNESS WHEREOF, Borrower and Lender have caused this Fourth Amendment to be
duly executed by their duly authorized officers all as of the day and year
first
above written.
| "BORROWER" | "LENDER" | ||
| ACURA PHARMACEUTICALS, INC. | XXXXX PARTNERS III, L.P., as Agent | ||
| By: /s/ Xxxxx Xxxxxxx | By: /s/ Xxxxx X. Xxxxxx | ||
|
|
|
||
|
Title:
Senior Vice President
and
Chief Financial Officer
|
Title: Managing Director |
EXHIBIT
A
Note
