EXHIBIT 10.4
SUBORDINATION AND INTERCREDITOR AGREEMENT
(LaSalle Bank National Association/Neopharm, Inc.)
THIS SUBORDINATION AND INTERCREDITOR AGREEMENT dated as of October
7, 2003 (this "Agreement") is entered into among AKORN, INC., a Louisiana
corporation ("Akorn"), AKORN (NEW JERSEY), INC., an Illinois corporation ("Akorn
NJ"; together with Akorn, each a "Company" and collectively, the "Companies"),
LASALLE BANK NATIONAL ASSOCIATION, as Senior Agent (as hereinafter defined) for
Senior Lenders under the Credit Agreement (as hereinafter defined), and
NEOPHARM, INC., a Delaware corporation (the "Subordinated Lender").
RECITALS
A. The Senior Agent, certain financial institutions (together with
the successors and assigns thereof, "Senior Lenders") and the Companies have
entered into a Credit Agreement, dated as of the date hereof (as from time to
time amended, modified, extended, renewed, refinanced, or restated, the "Credit
Agreement"), together with the other Loan Documents (as defined in the Credit
Agreement), whereby the Senior Lenders have made and shall make available to
each of the Companies certain loans and other financial accommodations therein
set forth. All of the Companies' obligations under the Senior Loan Documents (as
hereinafter defined) are secured by assignments of and security interests in
substantially all of the now or hereafter acquired assets of the Companies and
their Subsidiaries, all as more fully set forth in the Loan Documents.
B. Akorn has issued that certain Amended and Restated Promissory
Note dated October 7, 2003 in the principal amount of $3,250,000 (the
"Subordinated Note", together with all guarantees and other documents or
instruments executed in connection therewith (as from time to time modified,
extended, renewed, refinanced or restated to the extent permitted by the terms
of this Agreement, collectively the "Subordinated Documents")) in favor of the
Subordinated Lender.
C. As a condition of the financing accommodations under the Loan
Documents, the parties hereto are required to enter into this Agreement to
establish the relative rights and priorities of the Senior Agent, the Senior
Lenders and the Subordinated Lender under the Senior Loan Documents and the
Subordinated Documents.
D. The Subordinated Lender will benefit from the financing
accommodations made by the Senior Lenders under the Credit Agreement and the
other Loan Documents. The Subordinated Lender and the Companies desire to enter
into this Agreement in order to induce the Senior Lenders to enter into the
Credit Agreement. The Subordinated Lender acknowledges that the Senior Lenders
would not enter into the Senior Loan Documents but for the execution of this
Agreement.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Definitions. Except as otherwise provided herein, all capitalized terms
used in this Agreement shall have the meanings ascribed to such terms in the
Credit Agreement, provided that the following terms shall have the meanings set
forth below:
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C.Section 101 et. seq.) or any replacement or supplemental federal statute
dealing with the bankruptcy of debtors.
"Company" and "Companies" shall have the meaning set forth in the
recitals hereof.
"Company Property" means all assets, property and property rights,
of any kind or nature, tangible or intangible, now or hereafter existing, in
which either Company or any Obligor owns, asserts or maintains an interest.
"Credit Agreement" shall have the meaning set forth in the recitals
hereof.
"Finally Paid" or "Final Payment," when used in connection with the
Senior Indebtedness, means the full and indefeasible payment in cash of all of
the Senior Indebtedness and the irrevocable termination of all Commitments of
all the Senior Lenders under the Senior Loan Documents.
"Liens" means any mortgage, deed of trust, pledge, lien, security
interest, charge, set-off right or other encumbrance, whether now existing or
hereafter created, acquired or arising.
"Obligor" means any guarantor or obligor of any Senior Indebtedness.
"Proceeding" means any voluntary or involuntary proceeding commenced
by or against either Company or any Obligor under any provision of the
Bankruptcy Code, or under any other bankruptcy or insolvency law, including
assignments for the benefit of creditors, formal or informal moratoria,
compositions, extensions generally with its creditors, or proceedings seeking
dissolution, receivership, reorganization, arrangement, or other similar relief.
"Senior Agent" means LaSalle Bank National Association, as
Administrative Agent for Senior Lenders, or any other Person appointed by the
holders of the Senior Indebtedness as administrative agent for purposes of the
Senior Loan Documents and this Agreement, together with the successors and
assigns of all of the foregoing.
"Senior Indebtedness" means all obligations, liabilities and
indebtedness of every nature of either Company or any Obligor from time to time
owed to the Senior Agent or any Senior Lender under the Senior Loan Documents,
including the principal amount of all debts, claims and indebtedness, accrued
and unpaid interest and all premium, fees, costs and expenses, whether primary,
secondary, direct, contingent, fixed or otherwise, heretofore, now and from time
to time hereafter owing, due or payable, whether before or after the filing of a
Proceeding,
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including any Hedging Obligations and Bank Product Obligations at any time due
and owing to any Senior Lender, together with (a) any amendments, modifications,
renewals, restatements or extensions thereof and (b) any interest accruing
thereon after the commencement of a Proceeding, without regard to whether or not
such interest is allowed in any Proceeding. Senior Indebtedness shall be deemed
to be outstanding until it is Finally Paid.
"Senior Loan Documents" means the Credit Agreement, the other Loan
Documents and all other agreements, documents and instruments executed from time
to time in connection therewith, in each case as from time to time renewed,
extended, amended, restated or modified by the parties thereto and all
agreements and instruments evidencing full or partial refundings of the
indebtedness thereunder.
"Subordinated Indebtedness" means all obligations, liabilities and
indebtedness of every nature of either Company or any Obligor from time to time
owed to any Subordinated Lender under the Subordinated Documents, including the
principal amount of all debts, claims and indebtedness, accrued and unpaid
interest and all premium, fees, costs and expenses, whether primary, secondary,
direct, contingent, fixed or otherwise, heretofore, now and from time to time
hereafter owing, due or payable, whether before or after the filing of a
Proceeding (including any amounts payable by either Company or any Obligor in
connection with put, redemption, repurchase or repurchase rights under any
warrants or any Capital Securities of either Company or any Obligor held by any
Subordinated Lender), together with (a) any amendments, modifications, renewals,
restatements or extensions thereof by the parties thereto and (b) any interest
accruing thereon after the commencement of a Proceeding, without regard to
whether or not such interest is allowed in any Proceeding.
"Subordinated Lender Remedies" means any action (a) to take from or
for the account of either Company, any Obligor, any other guarantor of the
Subordinated Indebtedness or any other Person, by set-off or in any other
manner, the whole or any part of any moneys which may now or hereafter be owing
by either Company (other than receipt of payments of Subordinated Indebtedness
to the extent permitted by this Agreement), any Obligor, any such guarantor or
any other Person with respect to the Subordinated Indebtedness, (b) to xxx for
payment of, or to initiate or participate with others in any suit, action or
proceeding (including any Proceeding) against either Company, any Obligor, any
such guarantor or any other Person to (i) enforce payment of or to collect the
whole or any part of the Subordinated Indebtedness or (ii) commence judicial
enforcement of any of the rights and remedies under the Subordinated Documents
or applicable law with respect to the Subordinated Indebtedness, (c) to
accelerate the Subordinated Indebtedness, (d) to exercise any put, repurchase or
similar option or to cause either Company, any Obligor, any such guarantor or
any other Person to honor any redemption or mandatory prepayment obligation
under any Subordinated Document or (e) to take any action under the provisions
of any state or federal law, including the UCC, or under any contract or
agreement, to enforce, foreclose upon, take possession of or sell any Company
Property or any property or assets of any such guarantor or any other Person.
"Subordinated Lender" shall have the meaning set forth in the
recitals hereof.
"Subordinated Note" shall have the meaning set forth in the recitals
hereof.
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"UCC" means Article 9 of the Uniform Commercial Code, as in effect
in any relevant jurisdiction.
2. Subordination of Subordinated Indebtedness to Senior Indebtedness. Each
Company covenants and agrees, and the Subordinated Lender by its acceptance of
the Subordinated Documents (whether upon original issue or upon transfer or
assignment) likewise covenants and agrees, notwithstanding anything to the
contrary contained in any of the Subordinated Documents, that the payment of any
and all of the Subordinated Indebtedness shall be subordinate and subject in
right and time of payment, to the extent and in the manner hereinafter set
forth, to the Final Payment of all Senior Indebtedness. Each holder of Senior
Indebtedness, whether now outstanding or hereafter created, incurred, assumed or
guaranteed, shall be deemed to have acquired Senior Indebtedness in reliance
upon the provisions contained in this Agreement.
3. Subordination of Liens.
(a) The Subordinated Lender hereby covenants and agrees that any
Liens and rights of any kind the Subordinated Lender may now have and hereafter
acquire (or be deemed to now have or hereafter acquire) against either Company
or any Obligor and/or any Company Property, if any, shall be subordinate and
subject to the Liens and rights against either Company, Obligors and/or Company
Property of the Senior Lenders arising from or out of the Senior Indebtedness,
regardless of the order, time or manner in which any Liens attach to or are
perfected in any Company Property.
(b) If (x) either Company or any Obligor, as the case may be,
desires to make any payment or to sell any Company Property as to which the
Senior Lenders have provided their written consent or which is otherwise
permitted under the Senior Loan Documents or (y) the Senior Lenders release
their Lien in connection with any sale or disposition of any Company Property,
the Subordinated Lender shall be deemed to have consented to such disposition
and shall execute such releases with respect to such Company Property to be sold
as the Senior Agent or the Senior Lenders request to evidence the release of any
Lien against such property the Subordinated Lender may have or be deemed to
have. The Subordinated Lender hereby irrevocably appoints the holders of the
Senior Indebtedness, or the Senior Agent on their behalf, as the true and lawful
attorneys of the Subordinated Lender for the purpose of executing and filing any
such releases. The Subordinated Lender hereby waives any rights the Subordinated
Lender has or may have in the future to object to the appointment of a receiver
for all or any portion of the equity or the assets of either Company or any
Obligor or to require any Senior Lender to marshal the collateral and agrees
that each Senior Lender may proceed against the collateral in any order that it
deems appropriate in the exercise of its absolute discretion.
4. Warranties and Representations of Companies and Subordinated Lender.
(a) Each Company and the Subordinated Lender hereby severally
represent and warrant to the Senior Lenders that each Senior Lender has been
furnished with a true and correct copy of all instruments and securities
evidencing or pertaining to the Subordinated Indebtedness.
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(b) Each Company hereby represents and warrants to the Senior
Lenders that this Agreement has been duly executed and delivered by each Company
and constitutes a legal, valid and binding obligation of each Company
enforceable in accordance with its terms except to the extent that the
enforceability thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect affecting
generally the enforcement of creditors' rights and remedies and general
principles of equity.
(c) The Subordinated Lender represents and warrants to the Senior
Lenders: (i) that this Agreement has been duly executed and delivered by the
Subordinated Lender and constitutes a legal, valid and binding obligation of the
Subordinated Lender enforceable against the Subordinated Lender in accordance
with its terms, except to the extent that the enforceability thereof may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws from time to time in effect affecting generally the enforcement of
creditors' rights and remedies and general principles of equity; (ii) that the
Subordinated Lender has not relied and shall not rely on any representation or
information of any nature made by or received from any Senior Lender relative to
either Company or any Obligor in deciding to execute this Agreement or to permit
it to continue in effect; and (iii) that the Subordinated Lender is the current
holder of the Subordinated Indebtedness.
(d) Notwithstanding anything contained in this Agreement to the
contrary, the Subordinated Lender hereby represents and warrants to the Senior
Agent and each Company that the Subordinated Lender has no security interest in
or Lien on any assets of either Company or any Obligor or any Company Property.
5. Negative Covenants. Until all of the Senior Indebtedness has been
Finally Paid: (A) the Subordinated Lender shall not demand, accept or acquire
from either Company or any Obligor any security interest in or Lien on any
assets of either Company or any Obligor or any Company Property, nor any
collateral from either Company or any Obligor; (B) neither Company shall
discharge the Subordinated Indebtedness other than in accordance with the terms
of the Subordinated Documents; (C) the Subordinated Lender shall not demand or
accept from either Company, any Obligor or other Person any consideration which
would result in a discharge of the Subordinated Indebtedness; (D) the
Subordinated Lender shall not hereafter give any subordination in respect of the
Subordinated Indebtedness; and (E) neither Company shall hereafter issue any
instrument, security or other writing evidencing any part of the Subordinated
Indebtedness, and the Subordinated Lender shall not receive any such writing,
except upon the condition that such security shall bear the legend referred to
in Section 25 below and a true copy thereof shall be thereupon promptly
furnished to the Senior Agent.
6. Permitted Payments. Notwithstanding the terms of the Subordinated
Documents, each Company hereby agrees that it shall not make (and will not
permit any other Obligor to make), and the Subordinated Lender hereby agrees
that it will not accept, any payment or distribution with respect to the
Subordinated Indebtedness including any payment or distribution received through
the exercise of any right of setoff, counterclaim or crossclaim, until the
Senior Indebtedness is Finally Paid; provided that the Companies may make to the
Subordinated Lender and the Subordinated Lender may accept payments in kind (but
not in cash) including, without limitation, services in connection with that
certain Processing Agreement, between Akorn and
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the Subordinated Lender, dated as of December 20, 2001 (the "Processing
Agreement"); provided further that notwithstanding anything hereunder to the
contrary, the Subordinated Lender shall retain all of its rights as a purchaser
of Akorn's goods and services under the Processing Agreement, and nothing
hereunder shall be construed as the Subordinated Lender's relinquishment or
waiver, or assignment to the Senior Agent or the Senior Lenders of the
Subordinated Lender's right to reject Akorn's nonconforming goods or services,
if any, or to assert and contest claims against Akorn for damages resulting
therefrom.
7. Forbearance of Legal Remedies.
(a) Until the Senior Indebtedness is Finally Paid, the Subordinated
Lender shall not, without the prior written consent of the Senior Agent,
exercise any Subordinated Lender Remedies.
(b) Notwithstanding anything contained herein to the contrary or any
rights or remedies available to the Subordinated Lender under any of the
Subordinated Documents, applicable law or otherwise, prior to the time that the
Senior Indebtedness has been Finally Paid, any payments, distributions or other
proceeds obtained by any Subordinated Lender from the exercise of any
Subordinated Lender Remedies shall in any event be held in trust by it for the
benefit of the Senior Agent and the Senior Lenders and promptly paid or
delivered to the Senior Agent for the benefit of the Senior Lenders in the form
received.
8. Dissolution, Liquidation, Reorganization or Bankruptcy. (a) In the
event of any Proceeding involving either Company or any Obligor:
(i) all Senior Indebtedness shall be Finally Paid before the
Subordinated Lender shall be entitled to receive any payment on account of any
Subordinated Indebtedness; and
(ii) any payment or distribution of assets of such Person of
any kind or character, whether in cash, property or securities, to which the
Subordinated Lender would be entitled except for these provisions, shall be paid
by the liquidating trustee or agent or other Person making such payment or
distribution directly to the Senior Agent, to the extent necessary to make Final
Payment of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution or provision therefor to the holders of such
Senior Indebtedness. The Subordinated Lender irrevocably authorizes, empowers
and directs any debtor, debtor-in-possession, receiver, trustee or agent or
other person having authority, to pay or otherwise deliver all such payments or
distributions to Senior Agent.
(b) Until the Senior Indebtedness has been Finally Paid, if a
Proceeding shall occur and be continuing, the Subordinated Lender shall file all
claims it may have against either Company or any Obligor, and shall direct the
debtor in possession or trustee in bankruptcy, as appropriate, to pay over to
the Senior Agent all amounts due to the Subordinated Lender on account of the
Subordinated Indebtedness until the Senior Indebtedness has been Finally Paid.
If the Subordinated Lender fail to file such claims or to vote such claims prior
to 30 days before the expiration of time to do so, the Senior Agent may (but
shall have no obligation to) file and/or
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vote such claims in the Subordinated Lender's name on behalf of the Senior
Lenders. If the Senior Agent votes any such claim in accordance with the
authority granted hereof, the Subordinated Lender shall not be entitled to
withdraw or change such vote.
(c) The Subordinated Lender agrees, in connection with any such
Proceeding, that while it shall retain the right to vote and otherwise act in
any such proceeding (including the right to vote to accept or reject any plan of
partial or complete liquidation, reorganization, arrangement, composition or
extension), it will not take any action or vote in any way so as to (i) contest
the validity of the Liens securing the Senior Indebtedness, (ii) contest the
enforceability of any of the Senior Loan Documents, (iii) contest the Senior
Lenders' priority position over the Subordinated Lender created by this
Agreement or (iv) take any position or action which would have directly or
indirectly any of the following effects: (A) extension of the final maturity of
and/or forgiveness, reduction or cram-down of the Senior Indebtedness or
deferral of any required payment in respect of Senior Indebtedness, (B) opposing
or objecting to initiatives or claims by the Senior Lenders for adequate
protection or relief from the automatic stay, use of cash collateral or
super-priority expense of administration for failure of adequate protection, (C)
challenging in any respect treatment of the Senior Indebtedness as a first
priority perfected fully secured claim, (D) blocking current payment of any
obligation in respect of Senior Indebtedness, (E) assenting to or supporting any
requested extension of the exclusivity period for the submission by Company of
any plan of reorganization or liquidation under the Bankruptcy Code unless such
extension is assented to or supported by the Senior Lenders; and (F) opposing or
objecting to any sale or lease of any Company Property that has been consented
to by the holders of Senior Indebtedness. In the event of any violation of any
provisions of this section by any Subordinated Lender, the Senior Lenders may in
the name of the Subordinated Lender, or in their own name thereafter amend,
modify or rescind any such prior act taken or vote issued, in violation of this
Agreement.
(d) Until the Senior Indebtedness has been Finally Paid, if a
Proceeding shall occur and be continuing, the Subordinated Lender hereby (i)
expressly consent to any Senior Lender's providing post-petition financing to
either Company or any Obligor or the granting by either Company or any Obligor
to any Senior Lender of senior liens and priorities in connection therewith
and/or the use of cash collateral and (ii) agree that adequate notice of such
financing or cash collateral usage to the Subordinated Lender shall have been
provided if the Subordinated Lender received notice in accordance with Section
16 hereof 2 Business Days prior to the entry of any order approving such
financing or cash collateral usage.
(e) If any Subordinated Lender has or at any time acquires any
security interest or Lien for the Subordinated Indebtedness, the Subordinated
Lender agrees not to (i) initiate any proceeding involving the marshalling of
any Company Property (whether in a Proceeding or otherwise) or (ii) assert any
right it may have to "adequate protection" of its interest, if any, in such
security in any Proceeding and agrees that it will not seek to have the
automatic stay lifted with respect to such security, in each case without the
prior written consent of the Senior Agent. The Subordinated Lender waives any
claim or defense the Subordinated Lender may now or hereafter have arising out
of the election by any Senior Lender in any Proceeding instituted under Chapter
11 of the Bankruptcy Code of any use of cash collateral, any borrowing or any
grant of a security interest under Sections 363 and/or 364 of the Bankruptcy
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Code by either Company or any Obligor, as debtor-in-possession. The Subordinated
Lender agrees that it will not object to or oppose a sale or other disposition
of any property securing all or any part of the Senior Indebtedness free and
clear of any security interests or other Liens or other claims of the
Subordinated Lender under Section 363 of the Bankruptcy Code if the Senior Agent
has consented to such sale or disposition. The Subordinated Lender further
agrees that it will not seek to participate on any creditors committee in
respect of the Subordinated Indebtedness without the Senior Agent's prior
written consent. To the extent that any Senior Lender receives payments on, or
proceeds of collateral for, the Senior Indebtedness which are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law, or equitable cause, then as
between such Senior Lender and the Subordinated Lender hereunder, to the extent
of such payment or proceeds received, the Senior Indebtedness, or part thereof,
intended to be satisfied shall be revived and continue in full force and effect
as if such payments or proceeds had not been received by such Senior Lender.
9. Obligation of Company Unconditional. Nothing contained herein or in the
Senior Loan Documents is intended to or shall impair, as between either Company
and the Subordinated Lender only, the obligation of the Companies, which is
absolute and unconditional, to pay to the Subordinated Lender the Subordinated
Indebtedness as and when the same shall become due and payable in accordance
with their terms, or to affect the relative rights of the Subordinated Lender
and creditors of the Companies other than the Senior Lenders.
10. Subordination Rights Not Impaired by Acts or Omissions of either
Company or Holders of Senior Indebtedness.
(a) No right of any present or future holders of any Senior
Indebtedness to enforce the subordination provisions as provided herein shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of either Company; by any act or failure to act by any such holder; by
any act or failure to act by any other holder of the Senior Indebtedness; or by
any noncompliance by either Company with the terms hereof, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The Subordinated Lender shall not be released, nor shall the Subordinated
Lender's obligation hereunder be in anyway diminished, by any of the following:
(i) the exercise or the failure to exercise by any Senior Lender of any rights
or remedies conferred on it or them under the Senior Loan Documents, hereunder
or existing at law or otherwise, or against any Company Property; (ii) the
commencement of an action at law or the recovery of a judgment at law against
either Company or any Obligor for the performance of the Senior Indebtedness and
the enforcement thereof through levy or execution or otherwise; (iii) the taking
or institution or any other action or proceeding against either Company or any
Obligor; (iv) any delay in taking, pursuing, or exercising any of the foregoing
actions, rights, powers, or remedies (even though requested by Subordinated
Lender) by any Senior Lender or anyone acting for any Senior Lender; (v) any
lack of validity or enforceability of any Senior Loan Document; (vi) the release
or non-perfection of any collateral securing the Senior Indebtedness; or (vii)
any other circumstance which might otherwise constitute a defense available to,
or a discharge of, either Company or any Obligor in respect of the Senior
Indebtedness or Subordinated Lender in respect of this Agreement.
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(b) Without limiting the generality of the foregoing, and anything
else contained herein to the contrary notwithstanding, any Senior Lender, from
time to time, without prior notice to or the consent of the Subordinated Lender,
may take all or any of the following actions without in any manner affecting or
impairing the obligation or liability of the Subordinated Lender hereunder: (i)
obtain a Lien in any property to secure any of the Senior Indebtedness; (ii)
obtain the primary and secondary liability of any party or parties with respect
to any of the Senior Indebtedness; (iii) renew, extend, or otherwise change the
time for payment of the Senior Indebtedness or any installment thereof for any
period, or change the interest rates and fees with respect to the Senior
Indebtedness; (iv) renew, reaffirm, extend, release or otherwise change any
liability of any nature of any person or entity, including any Obligor, with
respect to the Senior Indebtedness; (v) exchange, enforce, waive, release, and
apply any Company Property and direct the order or manner of sale thereof as
such Senior Lender may in its discretion determine; (vi) enforce its rights
hereunder, whether or not such Senior Lender shall proceed against any other
Person; (vii) exercise its rights to consent to any action or non-action of
either Company or any Obligor which may violate the covenants and agreements
contained in the Senior Loan Documents, with or without consideration, on such
terms and conditions as may be acceptable to it; or (viii) exercise any of its
rights conferred by the Senior Loan Documents or by law.
11. Waivers. Each Company and the Subordinated Lender each hereby waive,
to the fullest extent permitted by law, any defense based on the adequacy of a
remedy at law which might be asserted as a bar to the remedy of specific
performance of this Agreement in any action brought therefor by the Senior
Lenders. To the fullest extent permitted by law and except as to any notices
specified in this Agreement, notices regarding the intended sale or disposition
of any portion of the collateral held by the Senior Lenders, or any notice which
may not be waived in accordance with the UCC, each Company and the Subordinated
Lender each hereby further waive: (a) presentment, demand, protest and notice of
protest in connection with all negotiable instruments evidencing all or any
portion of the Senior Indebtedness or the Subordinated Indebtedness to which the
Companies or the Subordinated Lender may be a party and (b) prior notice of and
consent to any loans made or extensions granted. The Subordinated Lender
consents to any release, renewal, extension, compromise or postponement of the
time of payment of the Senior Indebtedness, to any substitution, exchange or
release of collateral therefor, and to the addition or release of any person
primarily or secondarily liable thereon.
12. No Estoppel. Neither the failure nor any delay on the part of any
Senior Lender to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof or give rise to an estoppel, nor be construed as an
agreement to modify the terms of this Agreement, nor shall any single or partial
exercise of any right, remedy, power or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence. No waiver by a party hereunder shall be effective
unless it is in writing and signed by the party making such waiver, and then
only to the extent specifically stated in such writing.
13. Incorrect Payments; Specific Performance. If either Company or any
Obligor shall make or the Subordinated Lender shall collect any payment on
account of the principal of, premium or interest on or any other amounts due
under the Subordinated Indebtedness in
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contravention of this Agreement, such payments shall be held in trust by the
Subordinated Lender and not commingled with any assets of any Subordinated
Lender and shall be paid over and delivered to the Senior Agent, for the benefit
of the Senior Lenders, promptly upon receipt thereof. At any time any
Subordinated Lender fails to comply with any provision of this Agreement, the
Senior Lenders may demand specific performance of this Agreement, whether or not
either Company has complied with this Agreement, and may exercise any other
remedy available at law or equity.
14. Amendment of the Subordinated Documents and Senior Loan Documents. The
Subordinated Lender agrees that it will not, without the prior written consent
of the Senior Agent, agree to any amendment, modification, waiver or supplement
to the Subordinated Documents. The Senior Indebtedness may at any time be
amended, extended, modified, restated or waived without limitation, without
notice to, or the consent of, the Subordinated Lender.
15. Inconsistent or Conflicting Provisions; Construction. If a provision
of the Senior Loan Documents or the Subordinated Documents is inconsistent or
conflicts with the provisions of this Agreement, the provisions of this
Agreement shall govern and prevail. The term "including" is not limiting and
means "including without limitation." In the computation of periods of time from
a specified date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding", and the
word "through" means "to and including."
16. Notices. Any notice, consent or other communication provided for in
this Agreement shall be in writing and shall be delivered personally (effective
upon delivery), via facsimile (effective upon confirmation of transmission), via
overnight courier (effective the next Business Day after dispatch if instructed
to deliver on next business day) or via U.S. Mail (effective 3 days after
mailing, postage prepaid, first class) to each party at its address(es) and/or
facsimile number(s) set forth on Annex I hereto, or to such other address as
either party shall specify to the other in writing from time to time. The
Subordinated Lender shall provide the Senior Agent with written notice promptly
upon the occurrence of an event of default under the Subordinated Documents.
17. Entire Agreement. This Agreement constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, whether express or implied, oral or
written. Neither this Agreement nor any portion or provision hereof may be
changed, waived or amended orally or in any manner other than by an agreement in
writing signed by the Senior Agent and the Subordinated Lender; provided that
any such change, waiver or amendment shall be binding upon each Company by their
written consent thereto. This Agreement shall constitute a Loan Document and the
recitals hereto shall constitute part of this Agreement.
18. Additional Documentation. Each Company and the Subordinated Lender
shall execute and deliver to the Senior Agent such further instruments and shall
take such further action as the Senior Agent may at any time or times reasonably
request in order to carry out the provisions and intent of this Agreement.
10
19. Expenses. The Companies, joint and severally, agree to pay the Senior
Agent and the Senior Lenders on demand all expenses of every kind, including
Attorney Costs, that the Senior Agent or the Senior Lenders incur in enforcing
any of their rights against either Company and/or the Subordinated Lender under
this Agreement.
20. Successors and Assigns.
(a) This Agreement shall inure to the benefit of each Senior Lender,
the Subordinated Lender, and their respective successors and assigns, and shall
be binding upon each Company and its successors and assigns, and each Senior
Lender, the Subordinated Lender and their respective transferees, successors and
assigns, including any subsequent holders of the Subordinated Note. Any Senior
Lender, without prior notice or consent of any kind, may sell, assign or
transfer any Senior Indebtedness, and in such event each and every immediate and
successive assignee or transferee thereof may be given the right by such Person
to enforce this Agreement in full against each Company and the Subordinated
Lender, by suit or otherwise, for its own benefit.
(b) The Subordinated Lender shall not sell, assign, pledge, dispose
of or otherwise transfer all or any portion of the Subordinated Indebtedness or
any Subordinated Document without the prior written consent of the Senior Agent.
(c) Notwithstanding the failure of any transferee to execute or
deliver an agreement substantially identical to this Agreement, the
subordination effected hereby shall survive any sale, assignment, pledge,
disposition or other transfer of all or any portion of the Subordinated
Indebtedness, and the terms of this Agreement shall be binding upon the
successors and assigns of each Subordinated Indebtedness, as provided in this
Section 20.
21. Covenant Not to Challenge. This Agreement has been negotiated by the
parties with the expectation and in reliance upon the assumption that the
instruments and documents evidencing the Senior Indebtedness are valid and
enforceable. In determining whether to enter into this Agreement, the
Subordinated Lender has assumed such validity and enforceability, and has agreed
to the provisions contained herein, without relying upon any reservation of a
right to challenge or call into question such validity or enforceability. As
between any Senior Lender and any Subordinated Lender, the Subordinated Lender
hereby covenants and agrees, to the fullest extent permitted by law, that it
shall not initiate in any proceeding a challenge to the validity or
enforceability of the documents and instruments evidencing the Senior
Indebtedness or the validity, perfection or priority of any Lien of the Senior
Agent or the Senior Lenders securing the Senior Indebtedness, nor shall the
Subordinated Lender instigate other parties to raise any such challenges, nor
shall the Subordinated Lender participate in or otherwise assert any such
challenges which are raised by other parties.
22. Subrogation. Subject to the Final Payment of all Senior Indebtedness
and the provisions of Section 24 hereof, the Subordinated Lender shall be
subrogated to the rights of the Senior Lenders to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness to the extent that distributions otherwise payable to the
Subordinated Lender have been applied to the Senior Indebtedness, until all
amounts payable under the
11
Subordinated Indebtedness shall have been paid in full. For purposes of such
subrogation, no payments or distributions to the Senior Lenders of any cash,
property or securities to which the Subordinated Lender would be entitled except
for the provisions of this Agreement, and no payment pursuant to the provisions
of this Agreement to the Senior Lenders by the Subordinated Lender shall, as
among the Companies and their creditors other than the Senior Lenders, be deemed
to be a payment or distribution by either Company to or on account of the Senior
Indebtedness. If either Company fails to make any payment on account of the
Subordinated Indebtedness by reason of any provision contained herein, such
failure shall, notwithstanding such provision contained herein, constitute a
default with respect to the Subordinated Indebtedness if and to the extent such
failure would otherwise constitute such a default in accordance with the terms
of the Subordinated Indebtedness.
23. Termination of Agreement. This Agreement shall continue and shall be
irrevocable until the date all of the Senior Indebtedness has been Finally Paid
or otherwise discharged and released in an express writing to such effect by the
Senior Lenders.
24. Reinstatement. The obligations of the Subordinated Lender under the
Agreement shall continue to be effective, or be reinstated, as the case may be,
if at any time any payment in respect of any Senior Indebtedness is rescinded or
must otherwise be restored or returned by any Senior Lender by reason of any
bankruptcy, reorganization, arrangement, composition or similar proceeding or as
a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, either Company, any Obligor or any substantial
part of its property, or otherwise, all as though such payment had not been
made.
25. Legends. Until the termination of this Agreement, the Subordinated
Lender will cause to be clearly, conspicuously and prominently inserted on the
face of the Subordinated Note and any other Subordinated Document, as well as
any renewals or replacements thereof, the following legend:
"THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE
SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT
CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT (THE
"SUBORDINATION AGREEMENT") DATED AS OF OCTOBER 7, 2003 AMONG
NEOPHARM, INC., A DELAWARE CORPORATION, AKORN, INC., A LOUISIANA
CORPORATION ("AKORN"), AND AKORN (NEW JERSEY), INC., AN ILLINOIS
CORPORATION ("AKORN NJ"; TOGETHER WITH AKORN, EACH A "COMPANY" AND
COLLECTIVELY THE "COMPANIES") AND LASALLE BANK NATIONAL ASSOCIATION
(TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, THE "SENIOR AGENT"), TO
THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANIES PURSUANT
TO THAT CERTAIN CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2003 AMONG
THE COMPANIES, THE SENIOR AGENT AND THE LENDERS FROM TIME TO TIME
PARTY THERETO, AND THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE
CREDIT AGREEMENT) AS SUCH CREDIT AGREEMENT AND OTHER LOAN
12
DOCUMENTS MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME AS CONTEMPLATED BY THE SUBORDINATION
AGREEMENT; AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE
HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE
SUBORDINATION AGREEMENT."
Each Company's books shall be marked to evidence the subordination of all
of the Subordinated Indebtedness to the holders of Senior Indebtedness, in
accordance with the terms of this Agreement. Each Senior Lender is authorized to
examine such books from time to time in accordance with the terms of the Credit
Agreement and to make any notations required by this Agreement.
26. Governing Law. THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES. EACH COMPANY AND THE SUBORDINATED LENDER HEREBY AGREE THAT
ALL ACTIONS OR PROCEEDINGS INITIATED BY EACH COMPANY OR THE SUBORDINATED LENDER
AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT SHALL BE LITIGATED IN A
XXXX COUNTY, ILLINOIS COURT OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS OR, IF ANY SENIOR LENDER INITIATES SUCH ACTION, IN ADDITION
TO THE FOREGOING COURTS, ANY COURT IN WHICH SUCH SENIOR LENDER SHALL INITIATE
SUCH ACTION, TO THE EXTENT SUCH COURT HAS JURISDICTION. EACH COMPANY AND THE
SUBORDINATED LENDER EACH HEREBY EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY ANY SENIOR LENDER AND
HEREBY WAIVE ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM OR AN IMPROPER
FORUM BASED UPON LACK OF VENUE. THE EXCLUSIVE CHOICE OF FORUM AS SET FORTH IN
THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT, BY ANY SENIOR
LENDER, OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY ANY SENIOR
LENDER, OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION,
AND EACH COMPANY AND THE SUBORDINATED LENDER HEREBY WAIVE THE RIGHT TO
COLLATERALLY ATTACK SUCH JUDGMENT OR ACTION.
27. Jury Trial. THE SENIOR AGENT, THE SUBORDINATED LENDER AND EACH COMPANY
WAIVE TRIAL BY JURY IN ANY DISPUTE ARISING FROM, UNDER OR IN CONNECTION WITH
THIS AGREEMENT.
28. Severability. The provisions of this Agreement are independent of and
separable from each other. If any provision hereof shall for any reason be held
invalid or unenforceable, it is the intent of the parties that such invalidity
or unenforceability shall not affect the validity or enforceability of any other
provision hereof, and that this Agreement shall be construed as if such invalid
or unenforceable provision had never been contained herein.
13
29. Counterparts. This Agreement may be executed in any number of separate
counterparts, all of which, when taken together, shall constitute one and the
same instrument, notwithstanding the fact that all parties did not sign the same
counterpart. Receipt of an executed signature page to this Agreement by
facsimile or other electronic transmission shall constitute effective delivery
thereof.
30. Sections. The section headings used in this Agreement are for
convenience only and shall not affect the interpretation of any of the
provisions hereof.
31. Defines Rights of Creditors. The provisions of this Agreement are
solely for the purpose of defining the relative rights of the Senior Lenders and
the Subordinated Lender and shall not be deemed to create any rights or
priorities in favor of any other Person, including each Company.
[signature pages follow]
14
The parties hereto have executed this Agreement as of the date first above
written.
COMPANIES: AKORN, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
AKORN (NEW JERSEY), INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SENIOR AGENT: LASALLE BANK NATIONAL ASSOCIATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SUBORDINATED LENDER: NEOPHARM, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ANNEX I
NOTICE ADDRESSES
COMPANIES:
c/o Akorn, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention:
----------------------
Facsimile:
----------------------
SENIOR AGENT:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X'Xxxxx
Facsimile:
----------------------
SUBORDINATED LENDER:
Neopharm, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Xxxxxx, Chief Executive Officer
With a copy to:
McGuireWoods Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Xxxxxx
