Contract
SUBORDINATION
AGREEMENT,
dated
as of June 22, 2005, by and among Acura Pharmaceuticals, Inc., a New York
corporation (the "Company"),
the
legal and beneficial holders of the Xxxxxx Note (the "Xxxxxx
Holders"),
the
holders of the 2005 Notes (the "2005
Lenders"),
Xxxxx
Partners III, L.P., a Delaware limited partnership, as agent for the Xxxxxx
Holders and the 2005 Lenders (in such capacity, the "Agent")
and
the Grantors listed on the signature pages hereof.
RECITALS
(A) Certain
capitalized terms used in this Agreement without definition have the meaning
ascribed to them in Section 1
below.
(B) WHEREAS,
Xxxxxx Pharmaceuticals, Inc., a Nevada corporation ("Xxxxxx")
and
the Company have entered into a Loan Agreement dated March 29, 2000 (such
agreement, as supplemented, amended or otherwise modified from time to time,
including, without limitation, as amended through the Third Amendment to Loan
Agreement dated February 6, 2004, the "Xxxxxx
Loan Agreement")
pursuant to which Xxxxxx agreed to extend certain funds to the Company. The
Company’s obligation to pay the principal amount of, and interest on, the Xxxxxx
Term Loan is now evidenced by a secured promissory note dated as of December
20,
2002 (the "Xxxxxx
Note")
which
is secured by (i) a lien on and security interest in the Company Personal
Property granted pursuant to the Xxxxxx Security Agreement dated March 29,
2000
between the Company and Xxxxxx (such agreement, as amended, supplemented, or
otherwise modified from time to time, the "Xxxxxx
Security Agreement"),
(ii)
collateral assignments of the Company Assignable Property pursuant to the Xxxxxx
Security Agreement or otherwise (such collateral assignments, as amended,
supplemented, or otherwise modified from time to time, collectively the
“Xxxxxx
Assignments”),
and
(iii) a lien on and security interest in the Company Investment Property
pursuant to a Stock Pledge Agreement between the Company and Xxxxxx (such
agreement, as amended, supplemented, or otherwise modified from time to time,
the "Xxxxxx
Stock Pledge Agreement").
(C) WHEREAS,
in connection with, and in order to support the obligations of the Company
under, the Xxxxxx Loan Agreement, each of the Guarantors has guaranteed the
Company’s obligations under the Xxxxxx Term Loan and has undertaken certain
additional obligations pursuant to the Continuing Unconditional Secured Guaranty
by each Guarantor dated March 29, 2000 (each such guaranty and all other
obligations of each of the Guarantors under the Xxxxxx Loan Agreement, in each
case, as they may be amended, supplemented or otherwise modified from time
to
time, a "Xxxxxx
Guaranty").
The
Xxxxxx Guaranties are secured by (i) a lien on and security interest in the
Guarantor Personal Property of each Guarantor granted pursuant to a Guarantors
General Security Agreement dated March 29, 2000 between the Guarantors and
Xxxxxx (such agreement, as amended, supplemented, or otherwise modified from
time to time, the "Xxxxxx
Guarantors General Security Agreement"),
(ii)
collateral assignments of the Guarantor Assignable Property of each Guarantor
pursuant to the Xxxxxx Guarantors General Security Agreement or otherwise (such
collateral assignments, as amended, supplemented, or otherwise modified from
time to time, collectively the “Xxxxxx
Guarantor Assignments”),
and
(iii) a mortgage granted by Acura Pharmaceutical Technologies, Inc. to Xxxxxx
of
its Guarantor Mortgage Property (such mortgage, as amended, supplemented, or
otherwise modified from time to time, the "Xxxxxx Mortgage").
(D) WHEREAS,
the 2005 Lenders and the Company have entered into a Loan Agreement dated as
of
the date hereof (such agreement, as amended, supplemented, or otherwise modified
from time to time, the "2005
Loan Agreement")
pursuant to which the Company has agreed to issue the 2005 Notes. The 2005
Notes
are, or will be, secured by (i) liens and security interests granted pursuant
to
the Company General Security Agreement dated as of the date hereof between
the
Company and the Agent (such agreement, as amended, supplemented, or otherwise
modified from time to time, the "2005
Company General Security Agreement"),
(ii)
collateral assignments of the Company Assignable Property pursuant to the 2005
Company General Security Agreement or otherwise (such collateral assignments,
as
amended, supplemented, or otherwise modified from time to time, collectively
the
“2005
Assignments”),
and
(iii) a lien on and security interest in the Company Investment Property
pursuant to a Stock Pledge Agreement between the Company and the Agent (such
agreement, as amended, supplemented, or otherwise modified from time to time,
the "2005
Stock Pledge Agreement").
(E) WHEREAS,
as a condition to the 2005 Lenders’ obligation to lend sums under the 2005 Loan
Agreement and in order to support the Obligations of the Company under the
2005
Loan Agreement, each of the Guarantors has guaranteed the Company’s Obligations
under the 2005 Notes and the 2005 Loan Agreement and has undertaken certain
additional obligations pursuant to the Continuing Unconditional Secured Guaranty
by each Guarantor dated as of as of the date hereof (each such guaranty and
all
other obligations of each of the Guarantors under the 2005 Loan Agreement,
in
each case, as they may be amended, supplemented or otherwise modified from
time
to time, a "2005
Guaranty").
The
2005 Guaranties are, or will be, secured by (i) a lien on and security interest
in the Guarantor Personal Property of each Guarantor granted pursuant to a
Guarantors General Security Agreement dated as of the date hereof between the
Guarantors and the Agent (such agreement, as amended, supplemented, or otherwise
modified from time to time, the "2005
Guarantors General Security Agreement")
and
(ii) collateral assignments of the Guarantor Assignable Property of each
Guarantor pursuant to the 2005 Guarantors General Security Agreement or
otherwise (such collateral assignments, as amended, supplemented, or otherwise
modified from time to time, collectively the “2005
Guarantor Assignments”).
(F) WHEREAS,
it is a condition to closing under the 2005 Loan Agreement that the parties
hereto shall have entered into this Agreement to confirm, among other things,
their relative rights with respect to the Company Collateral and the Guarantor
Collateral.
NOW
THEREFORE, in consideration of the foregoing and the mutual promises and
agreements hereinafter contained, the parties hereto agree as follows:
SECTION
1. Definitions. (a)
As used herein, the following terms have the following meanings:
"Agent"
has the
meaning specified in the introductory paragraph of this Agreement.
this
"Agreement"
means
this Subordination Agreement, as it may be supplemented, amended or otherwise
modified from time to time.
"Bankruptcy
Proceeding"
means,
in the case of any Grantor, each of the following: (a) any distribution of
all
or any of the assets of such Grantor upon the dissolution, winding up, total
or
partial liquidation, arrangement, reorganization, adjustment, protection, relief
or composition of such Grantor or its debts, whether in any bankruptcy,
insolvency, arrangement, reorganization, receivership or relief proceeding
or
similar case or proceeding under any Federal or state bankruptcy or similar
law
and (b) any assignment for the benefit of creditors of any other marshalling
of
the assets and liabilities of such Grantor or otherwise.
"Cash
Obligations"
means,
as at any time, the Obligations of the Company or any Guarantor, as applicable,
to the extent then payable in cash.
"Collateral"
means,
collectively, the Company Collateral and the Guarantor Collateral of all
Guarantors.
"Company"
has the
meaning specified in the introductory paragraph of this Agreement.
"Company
Assignable Property"
means,
collectively, all of the Company’s leases, contracts, patents, copyrights,
trademarks and service marks, now owned or existing or hereafter acquired or
arising.
"Company
Collateral"
means,
collectively, the Company Personal Property, the Company Assignable Property
and
Company Investment Property.
"Company
Investment Property"
means
all of the issued and outstanding shares of Acura Pharmaceutical Technologies,
Inc. and Axiom Pharmaceutical Corporation.
"Company
Personal Property"
means
all of the Company’s properties and assets of whatever nature, tangible or
intangible, now owned or existing or hereafter acquired or arising.
"Company
Security Documents"
means,
collectively, the Xxxxxx Company Security Documents and the 2005 Company
Security Documents.
"Grantors"
means
the Company, Axiom Pharmaceutical Corporation, a Delaware corporation, and
Acura
Pharmaceutical Technologies, Inc., an Indiana corporation, and each other
subsidiary or affiliate of the Company that is or becomes a party to any
Security Document or any Guaranty Security Document.
"Guarantors"
means
Axiom Pharmaceutical Corporation, a Delaware corporation, and Acura
Pharmaceutical Technologies, Inc., an Indiana corporation, and each other
subsidiary or affiliate of the Company that is or becomes a party to any
Security Document.
"Guarantor
Assignable Property"
means,
collectively, in respect of any Guarantor, all of such Guarantor’s leases,
contracts, patents, copyrights, trademarks and service marks, now owned or
existing or hereafter acquired or arising.
"Guarantor
Collateral"
means,
collectively, in respect of any Guarantor, (a) its Guarantor Personal Property,
(b) its Guarantor Assignable Property and (c) if such Guarantor is Acura
Pharmaceutical Technologies, Inc., its Guarantor Mortgage Property.
"Guarantor
Mortgage Property"
means
Acura Pharmaceutical Technologies, Inc.’s real property located at 00000 Xxxxx
Xxxx 00, Xxxxxx, Xxxxxxx.
"Guarantor
Personal Property"
means,
in respect of either Guarantor, all of such Guarantor’s properties and assets of
whatever nature, tangible or intangible, now owned or existing or hereafter
acquired or arising.
"Guarantor
Security Documents"
means,
collectively, the Xxxxxx Guarantor Security Documents and the 2005 Guarantor
Security Documents.
"Guaranty
Documents"
means,
collectively, the Xxxxxx Guaranties and the 2005 Guaranties.
"Junior
Secured Party",
as to
any item of Collateral, and as to Secured Creditors purporting to have liens
on
and securities interests in such item under the Security Documents, means one
such Secured Creditor whose lien on and security interest in such item (and
to
the extent such lien on and security interest in such item) is stated in Section
2 hereof to be junior in right to the liens and security interests of one or
more such other Secured Creditors on and in such item.
"Obligations"
of the
Company or any Guarantor means, at any time, any loans, advances, debts,
liabilities and obligations of the Company or such Guarantor, (a) in the case
of
the Company, under the 2005 Notes, the 2005 Loan Agreement and the Xxxxxx Loan
Agreement; and (b) in the case of any Guarantor, under its Xxxxxx Guaranty
and
its 2005 Guaranty, in each case, whether matured or unmatured, contingent or
liquidated and whether for principal, accrued and unpaid interest (including,
without limitation, interest accruing after the filing of a petition, or other
act, initiating a Bankruptcy Proceeding), accrued and unpaid expenses,
indemnities, fees (including attorneys fees and disbursements) or otherwise,
whether or not such obligations are due and payable at such time.
"Person"
means
any individual, corporation, limited liability company, partnership,
association, trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Secured
Creditors"
means
the Xxxxxx Holders and the 2005 Lenders and their respective agents, permitted
successors, transferees and assigns, in their respective capacities as the
beneficiaries under the Security Documents and the Guaranty Documents,
respectively (whether named in such agreement or as an assignee thereof).
"Security
Documents"
means,
collectively, the Company Security Documents and the Guarantor Security
Documents.
"Senior
Secured Party",
as to
any item of Collateral, and as to Secured Creditors purporting to have liens
on
and security interests in such item under the Security Documents, means one
such
Secured Creditor whose lien on and security interest in such item (and to the
extent such lien on and security interest in such item) is stated in Section
2
hereof to be senior and prior in right to the liens and security interests
of
one or more such other Secured Creditors on and in such item.
"2005
Company General Security Agreement"
has the
meaning specified in the recitals.
"2005
Company Security Documents"
means,
collectively, the 2005 Company General Security Agreement, the 2005 Assignments
and the 2005 Stock Pledge Agreement.
"2005
Guaranty"
has the
meaning specified in the recitals.
"2005
Guarantors General Security Agreement"
has the
meaning specified in the recitals.
"2005
Guarantor Security Documents"
means,
collectively, the 2005 Guarantors General Security Agreement and the 2005
Guarantor Assignments.
"2005
Lenders"
has the
meaning specified in the introductory paragraph of this Agreement.
"2005
Loan Agreement"
has the
meaning specified in the recitals.
"2005
Loan Maximum Amount"
means,
at any time, an amount equal to the sum of (a) the aggregate principal amount
of
all 2005 Notes then outstanding, (b) without duplication, the aggregate amount
of unpaid interest theretofore accrued on the 2005 Notes, and (c) without
duplication, the aggregate amount of all costs, expenses, fees, indemnities
and
other amounts payable in respect of the 2005 Notes, the 2005 Loan Agreement,
the
2005 Guaranties, the 2005 Company Security Documents and the 2005 Guarantor
Security Documents.
"2005
Notes"
means
the Company’s Secured Promissory Notes (as amended, supplemented or otherwise
modified from time to time) issued from time to time under the 2005 Loan
Agreement.
"2005
Stock Pledge Agreement"
has the
meaning specified in the recitals.
"Transaction
Documents"
means,
collectively, (a) this Agreement, (b) the 2005 Loan Agreement, (c) the 2005
Notes, (d) the Xxxxxx Loan Agreement, (e) the Xxxxxx Note, (f) the Security
Documents, and (g) the Guaranty Documents.
"Xxxxxx"
has the
meaning specified in the recitals.
"Xxxxxx
Holders"
has the
meaning specified in the introductory paragraph of this Agreement.
"Xxxxxx
Company Security Documents"
means,
collectively, the Xxxxxx Security Agreement, the Xxxxxx Assignments and the
Xxxxxx Stock Pledge Agreement.
"Xxxxxx
Guarantor Security Documents"
means,
collectively, the Xxxxxx Guarantors General Security Agreement, the Xxxxxx
Guarantor Assignments and the Xxxxxx Mortgage.
"Xxxxxx
Guaranty"
has the
meaning specified in the recitals.
"Xxxxxx
Guarantors General Security Agreement"
has the
meaning specified in the recitals.
"Xxxxxx
Loan Agreement"
has the
meaning specified in the recitals.
"Xxxxxx
Maximum Amount"
means,
at any time, an amount equal to the sum of (a) $5,000,000, (b) without
duplication, the aggregate amount of unpaid interest theretofore accrued on
the
Xxxxxx Term Loan and (c) without duplication, the aggregate amount of all costs,
expenses, fees, indemnities and other amounts payable in respect of the Xxxxxx
Loan Agreement, the Xxxxxx Note, the Xxxxxx Guaranties, the Xxxxxx Company
Security Documents and the Xxxxxx Guarantor Security Documents.
"Xxxxxx Mortgage"
has the
meaning specified in the recitals.
"Xxxxxx Note"
has the
meaning specified in the recitals.
"Xxxxxx
Security Agreement"
has the
meaning specified in the recitals.
"Xxxxxx
Stock Pledge Agreement"
has the
meaning specified in the recitals.
"Xxxxxx
Term Loan"
means
the term loan in the principal amount of $5,000,000 (as amended, supplemented,
or otherwise modified from time to time) evidenced by the Xxxxxx
Note.
(b) UCC
Terms.
Terms
defined in Article 9 of the Uniform Commercial Code in effect in the State
of
New York (or in any other State, including, without limitation, the State of
Indiana, to the extent that the Uniform Commercial Code in effect in such State
is to be applied pursuant to the terms hereof) and not otherwise defined herein
are used as therein defined.
SECTION
2. Priorities. (a)
(i) The parties hereto hereby agree to the following priorities of interest
in
the Company Collateral:
The
liens
and security interests of the 2005 Lenders (under the 2005 Company Security
Documents) on and in the Company Collateral, securing the Company’s Obligations
to the 2005 Lenders (up to an aggregate amount equal to the 2005 Loan Maximum
Amount in effect from time to time) shall at all times be senior and prior
in
right to the liens thereon and security interests therein of the Xxxxxx Holders
under the Xxxxxx Company Security Documents.
The
liens
and security interests of the Xxxxxx Holders (under the Xxxxxx Company Security
Documents) on and in the Company Collateral securing the Company’s Obligations
to the Xxxxxx Holders (up to an aggregate amount equal to the Xxxxxx Maximum
Amount in effect from time to time) shall at all times be junior and subordinate
in right to the liens thereon and security interests therein of the 2005 Lenders
under the 2005 Company Security Documents.
(ii)
The
parties hereto hereby agree to the following priorities of interest in the
Guarantor Collateral of each Guarantor:
The
liens
and security interests of the 2005 Lenders (under the 2005 Guarantor Security
Documents) on and in the Guarantor Collateral of such Guarantor, securing such
Guarantor’s Obligations under its 2005 Guaranty (in respect of the Company’s
Obligations to the 2005 Lenders up to an aggregate amount equal to the 2005
Loan
Maximum Amount in effect from time to time) shall at all times be senior and
prior in right to the liens thereon and security interests therein of the Xxxxxx
Holders under the Xxxxxx Guarantor Security Documents.
The
liens
and security interests of the Xxxxxx Holders (under the Xxxxxx Guarantor
Security Documents) on and in the Guarantor Collateral of such Guarantor
securing such Guarantor’s Obligations under its Xxxxxx Guaranty (in respect of
the Company’s Obligations to the Xxxxxx Holders up to an aggregate amount equal
to the Xxxxxx Maximum Amount in effect from time to time) shall at all times
be
junior and subordinate in right to the liens thereon and security interests
therein of the 2005 Lenders under the 2005 Guarantor Security Documents.
(b)
(i)
The
parties hereto hereby agree to the following priorities in right of payment
of
the Company’s Cash Obligations:
The
Company’s Cash Obligations under the 2005 Notes and the 2005 Loan Agreement (up
to an aggregate amount equal to the 2005 Loan Maximum Amount in effect from
time
to time) shall at all times be senior and prior in right of payment to the
Company’s Cash Obligations under the Xxxxxx Loan Agreement and the Xxxxxx
Note.
The
Company’s Cash Obligations under the Xxxxxx Loan Agreement (up to an aggregate
amount equal to the Xxxxxx Maximum Amount in effect from time to time) shall
at
all time be junior and subordinate in right of payment to the Company’s Cash
Obligations under the 2005 Notes and the 2005 Loan Agreement.
(ii) The
parties hereto hereby agree to the following priorities in right of payment
of
each Guarantor’s Cash Obligations:
Such
Guarantor’s Cash Obligations under its 2005 Guaranty in respect of the Company’s
Obligations to the 2005 Lenders (up to an aggregate amount equal to the 2005
Loan Maximum Amount in effect from time to time) shall at all times be senior
and prior in right of payment to such Guarantor’s Cash Obligations under its
Xxxxxx Guaranty.
Such
Guarantor’s Cash Obligations under its Xxxxxx Guaranty in respect of the
Company’s Obligations to the Xxxxxx Holders (up to an aggregate amount equal to
the Xxxxxx Maximum Amount in effect from time to time) shall at all times be
junior and subordinate in right of payment to such Guarantor’s Cash Obligations
under its 2005 Guaranty.
For
the
avoidance of doubt, nothing in this Section 2(b) shall apply at any time to
any
Obligations of the Company or any Guarantor to the extent that they are not
then
Cash Obligations.
(c) Except
as
otherwise provided in Sections 2(a) and 2(b) hereof, no Secured Creditor shall
have any lien or security interest which is prior to the lien and security
interest of any other Secured Creditor in any item of Collateral covered by
the
Company Security Documents or the Guarantor Security Documents.
(d) So
long
as any Person is a Secured Creditor, the priorities set forth in this Agreement
are applicable irrespective of the order of creation, attachment or perfection
of any lien or security interest arising under the Security Documents (whether
or not such security interests have been perfected) or any priority that might
otherwise be available to such Secured Creditor under applicable law and
notwithstanding any representation or warranty of the Company or any of the
Guarantors to the contrary in any Transaction Document.
(e) Each
Secured Creditor agrees not to contest, or to bring (or voluntarily join in)
any
action or proceeding for the purpose of contesting, the creation, attachment,
validity, enforceability, perfection or priority (as herein provided) of, or
seeking to avoid, the lien and security interest which any Security Document
(as
amended or otherwise modified hereby) purports to create in favor of any other
Secured Creditor on or in any item of Collateral. Nothing herein shall be deemed
or construed to prevent any Secured Creditor from commencing an action or
proceeding against any other Secured Creditor to assert any right or claim
it
may have arising under or in connection with this Agreement.
(f) Notwithstanding
anything to the contrary in this Agreement, in the event of a Bankruptcy
Proceeding of the Company, the Xxxxxx Holders hereby agree as follows, in each
case unless otherwise consented to in writing by the 2005 Lenders:
(i) the
Xxxxxx Holders waive any and all rights to dispute actions taken by the 2005
Lenders to seek adequate protection with respect to the collateral securing
the
2005 Notes;
(ii) the
Xxxxxx Holders agree not to seek any form of adequate protection other than:
(A)
replacement liens which shall be junior to any replacement liens granted to
the
0000 Xxxxxxx and to any liens securing debtor-in-possession (“DIP”)
financing that has been approved by the 2005 Lenders, and (B) periodic reports
from the Company;
(iii) the
Xxxxxx Holders agree not to oppose the use of cash collateral as agreed to
by
the 2005 Lenders and will not oppose the use of any Xxxxxx Holders’ cash
collateral; provided, however, that the Xxxxxx Holders receive replacement
liens. The Xxxxxx Holders agree to a carve out from their collateral equal
to
any carve out agreed to by the 2005 Lenders, for example, for fees of the U.S.
Trustee and estate professionals;
(iv) the
Xxxxxx Holders agree not to oppose their liens being primed by any DIP loan
that
has been approved by the 2005 Lenders; provided however, that the Xxxxxx Holders
receive replacement liens junior to the liens securing the DIP loan and the
replacement liens received by the 2005 Lenders. Notwithstanding the foregoing,
the Xxxxxx Holders reserve all rights to oppose other aspects of any DIP loan
that could be asserted if they held unsecured debt;
(v) in
the
event of a sale or sales of an asset or assets by the Company that has been
approved by the 2005 Lenders in a bankruptcy case, the Xxxxxx Holders agree
to
waive any right to assert that it is impossible to sell assets free and clear
of
their liens without their consent. Notwithstanding the foregoing, the Xxxxxx
Holders retain their rights to object a sale of assets on grounds other than
the
assets being sold free and clear of the Xxxxxx Holders’ liens;
(vi) the
Xxxxxx Holders waive any and all rights to credit bid at a bankruptcy sale
of
the Company’s assets, unless the 2005 Lenders’ consent; and
(vii) the
Xxxxxx Holders agree not to vote in favor of any plan of reorganization proposed
in a bankruptcy case unless the plan either pays the 2005 Lenders in full in
cash or is supported by the 2005 Lenders.
SECTION 3. Enforcement
of Security. (a)
Each Secured Creditor may, from time to time, to the extent provided in the
Transaction Documents to which it is a party, (i) give notice that an "event
of
default" has occurred and is continuing under such Transaction Documents, (ii)
accelerate the Company’s Obligations under such Transaction Documents and (iii)
whether or not it has given such notice or has effected such acceleration (but
except as otherwise provided in this Agreement), take or authorize the taking
of
such action with regard to the protection, exercise, enforcement and collection
of its rights in and to that portion of the Collateral, in which it may have
an
interest, as it may determine to be necessary or appropriate; provided,
however,
that
each Secured Creditor which is, as to any item of Collateral, a Junior Secured
Party in relation to one or more Senior Secured Parties, agrees that it (A)
will
not take any action to enforce, collect on or exercise any or its rights or
remedies in respect of its liens on and security interests in such item or
take
or receive from the Company or any Guarantor, respectively, directly or
indirectly, in cash or other property or by setoff or in any other manner,
whether pursuant to any judicial or nonjudicial enforcement, collection,
execution, levy or foreclosure proceedings or otherwise, including by deed
in
lieu of foreclosure, the Collateral, or any part thereof or interest therein,
in
each case unless and until each such Senior Secured Party has given written
notice to such Junior Secured Party that those Obligations to such Senior
Secured Party which are secured by such item and which are stated in Section
2
hereof to be senior to the Obligations to such Junior Secured Party have been
indefeasibly paid in full (and each such Senior Secured Party hereby agrees
promptly to give such notification following such payment to such Senior Secured
Party), (B) will not interfere with any exercise by or on behalf of each such
Senior Secured Party in respect of any liens and security interests of such
Senior Secured Party on or in such item or any other rights or remedies of
such
Senior Secured Party in furtherance of the rights and remedies of such Senior
Secured Party to the extent set forth in Section 2 hereof, and (C) will hold
and
promptly pay or deliver to each such Senior Secured Party, in order of and
in
accordance with the priorities set forth in Section 2 above (subject, however,
to Section 3(b) hereof), any such item received by such Junior Secured Party
(including, without limitation, any proceeds from the sale or other disposition
of such item), in each case unless and until each such Senior Secured Party
has
given written notice to such Junior Secured Party that its Obligations (to
the
extent set forth in clause (A) above) have been indefeasibly paid in full.
.
(b) (i) Except
as otherwise provided in clause (ii) below, each Secured Creditor agrees to
hold
any item of Collateral, received by it, in or against which a security interest
or lien may be perfected by possession, as possessory agent on behalf of all
Secured Creditors that have a lien on or security interest in such item
(including, if appropriate, on its own behalf), and, unless such Secured
Creditor is a Senior Secured Party as to such item in relation to all other
Secured Creditors, to give notice (indicating the nature and amount of such
items) of such item and to turn over to the appropriate Secured Creditor thereto
forthwith upon receipt thereof, provided
that
this clause (i) is intended solely to assure continuous perfection of the liens
and security interests granted under the Security Documents and nothing in
this
clause (i) shall be deemed or construed as altering the priorities or
obligations set forth elsewhere in this Agreement; and (ii) in the event any
Secured Creditor receives any proceeds from the sale or any other disposition
of
any Collateral in contravention of this Agreement) or in excess of the portion
of such proceeds to which such Secured Creditor is entitled hereunder, such
Secured Creditor shall give notice (indicating the nature and amount of such
proceeds and such excess, as applicable) and turn such proceeds or such excess,
as applicable, over to the appropriate Secured Creditor entitled thereto.
(c) Except
as
otherwise expressly provided in this Agreement, each right, power and remedy
of
any of the Secured Creditors provided for in this Agreement or any of the
Transaction Documents, or any other document relating thereto, whether such
right, power or remedy is now existing or hereafter available at law or in
equity or by statute or otherwise, shall be cumulative and concurrent (except
to
the extent otherwise provided in any such document) and shall be in addition
to
every other such right, power or remedy. Except as otherwise provided in Section
3(a), the Transaction Documents, or any other document relating thereto, the
exercise or the beginning of the exercise by any Secured Creditor of any one
or
more of such rights, powers or remedies shall not preclude the simultaneous
or
later exercise of all such rights, powers or remedies, and no course of dealing
or failure or delay on the part of any party hereto in exercising any such
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
its rights, powers or remedies.
(d) Each
Secured Creditor which is, as to any item of Collateral, a Junior Secured Party
in relation to one or more Senior Secured Parties agrees that this Agreement
shall be enforceable against it in all circumstances, including, without
limitation, in any Bankruptcy Proceeding.
SECTION 4. Notices
of Default; Collateral Disposition, etc. (a)
Each of the Secured Creditors agrees individually to give the others (as
applicable): copies of any written notice of an event of default (under any
Transaction Document) received from or sent to any Grantor, (i) within 10
business days of receipt of any such notice by such Secured Creditor from such
Grantor (or, if earlier, prior to such Secured Creditor’s exercising any right
or remedy or taking any other action, in respect of such event of default,
against the Company, any Guarantor, any Company Collateral or any Guarantor
Collateral), or, as applicable, (ii) simultaneously with any such notice sent
by
such Secured Creditor to any Grantor; and
(b) This
Agreement is intended, in part, to constitute a request for notice and a written
notice of a claim by each Secured Creditor to the other of any interest in
the
Collateral, in accordance with the provisions of Section 9-611 and 9-621 of
the
Uniform Commercial Code.
(c) Anything
herein to the contrary notwithstanding, nothing in this Section 4 shall permit
any Secured Creditor to exercise any right or remedy, or to take any other
action, against or in respect of the Company, any Guarantor, any Company
Collateral or any Guarantor Collateral in contravention of Sections 2 or 3
hereof or of any other provision of this Agreement.
SECTION 5. Rights
of Subrogation. Any
Junior Secured Party in respect of one or more Senior Secured Parties agrees
that, whether or not any such Senior Secured Party shall have received any
payment or distribution to any one or more Senior Secured Parties from the
Company or any Guarantor or on account of their Obligations, such Junior Secured
Party shall not be entitled to exercise any rights of subrogation or
reimbursement (or similar right or remedy of a surety) until the date on which
all Obligations to all such Senior Secured Parties (to the extent such
Obligations are stated in Section 2 hereof to be senior to the Obligations
to
such Junior Secured Party) shall have been indefeasibly paid in full.
SECTION 6. Further
Assurances. Any
Junior Secured Party in respect of one or more Senior Secured Parties will,
at
the expense of the Company, at any time and from time to time promptly execute
and deliver all further instruments and documents and take all further action,
that any Senior Secured Party may reasonably request, in order to protect any
right or interest granted or purported to be granted hereby or to enable any
Senior Secured Party to exercise and enforce its rights and remedies hereunder.
SECTION 7. Waiver
of Marshalling and Similar Rights. Each
of the parties hereto, to the fullest extent permitted by applicable law, waives
any requirement regarding, and agrees not to demand, request, plead or otherwise
claim the benefit of, any marshalling, appraisement, valuation or other similar
right that a creditor or any other Person may otherwise may have under
applicable law.
SECTION 8. Obligations
Hereunder Not Affected. Except
as otherwise provided in this Agreement, all rights, interests, agreements
and
obligations of the Secured Creditors hereunder, in respect of each other or
in
respect of the other parties to this Agreement, and all agreements and
obligations of the Junior Secured Parties in respect of the respective Senior
Secured Parties under this Agreement shall remain in full force and effect
irrespective of:
(a) Any
lack
of validity or enforceability of any Transaction Document or any other agreement
or instrument relating thereto;
(b) Any
change in the time, manner or place of payment of, the security for, or in
any
other term of, all or any of the Obligations secured or guaranteed by the
Security Documents, or any other extension, renewal, supplement, amendment
or
other modification, waiver, refinancing or restructuring of or any consent
to
departure from, or any act, omission or default under, this Agreement or any
other Transaction Document (including, without limitation, any increase in
such
Obligations resulting from the extension of additional credit to, or the
issuance of additional debt or equity instruments by, the Company or any of
its
Subsidiaries or otherwise, but excluding, in any event, any such increase in
the
Company’s Obligations to any one or more Secured Creditors to the extent that,
after giving effect thereto and to any reductions associated or occurring
substantially concurrently with such increase, the aggregate amount of the
Company’s Obligations to such Secured Creditors would exceed the aggregate
amount of such Obligations to such Secured Creditors stated to be subject to
the
priorities of Section 2 hereof);
(c) Any
taking, exchange, surrender, release or non-perfection of any lien or security
interest in the Collateral, or any other collateral, or any taking, release,
supplement, amendment or other modification or waiver of or consent to departure
from any Guaranty, or any other guaranty, for all or any of the Obligations,
or
any settlement or compromise of any of such Obligations;
(d) Any
manner of application of the Collateral, or any other collateral, or proceeds
thereof, to all or any of the Obligations of the Company secured or guaranteed
by the Security Documents, or any manner of sale or other disposition of any
Collateral or such other collateral or any other assets of the Company;
(e) Any
exercise or failure to exercise any rights by or against any Secured Creditor;
(f) Any
change, restructuring or termination of the corporate structure of the Company
or any of its Subsidiaries (including, without limitation, Acura Pharmaceutical
Technologies, Inc. and Axiom Pharmaceutical Corporation); or
(g) Any
other
circumstance (including, without limitation, any statute of limitations) that
might otherwise constitute a defense available to, or a discharge of, any
Grantor, any Guarantor, any borrower, any Secured Creditor or any other secured
creditor (irrespective of such creditor being subordinated whether in priority
of its liens on or security interest in collateral, in right of payment or
otherwise).
This
Agreement shall continue to be effective or be reinstated, as the case may
be,
if at any time any payment of any Obligation is rescinded or must otherwise
be
returned by any Secured Creditor upon the initiation of any Bankruptcy
Proceedings against any Grantor, or otherwise, all as though such payment had
not been made.
SECTION 9. Appointment
of Collateral Agents.
In case
of the pendency of any Bankruptcy Proceeding or other judicial proceeding
relative to any Grantor or Guarantor, the Agent shall be entitled and empowered,
by intervention in such proceeding or otherwise, (a) to file and prove a claim
for the whole amount of the Obligations and other amounts due under the
Transaction Documents or this Agreement and to file such other papers or
documents as may be necessary or advisable in order to have such claims and
amounts due allowed in such Bankruptcy Proceeding or judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable
on any such claims or other amounts due and to distribute the same in accordance
with the provisions hereof. Nothing in this paragraph shall be deemed to
authorize the Agent to authorize or consent to or accept or adopt on behalf
of
any 2005 Lender any plan or reorganization, arrangement, adjustment or
composition affecting the Obligations or other amounts due under the Transaction
Documents or this Agreement, or to authorize the Agent to vote in respect of
the
Obligations or other amounts due in any such Bankruptcy Proceeding or judicial
proceeding.
SECTION 10. Representations
and Warranties. Each
of the Xxxxxx Holders and the 2005 Lenders represents and warrants to the other
Xxxxxx Holders and 2005 Lenders party hereto as follows:
(a) (i) This
Agreement has been duly executed and delivered by its duly authorized officer
and constitutes its legal, valid and binding obligation, enforceable against
it
in accordance with the terms hereof; and (ii) the execution, delivery and
performance by it of this Agreement have been duly authorized by all necessary
corporate or partnership action, as the case may be, and do not and will not
(A)
violate any provision of any law, rule or regulation having applicability to
it
or of its (x) charter or articles of association or by-laws or (y) limited
partnership agreement, as the case may be, (B) result in a breach of or
constitute a default or an event of default (or any event which, with the giving
of notice, the lapse of time, or both, would constitute an event of default)
under any indenture or loan or credit agreement or any other material agreement,
lease or instrument to which it is a party, or (C) require the consent or
approval of any governmental authority or arbitrator; and
(b) Each
of
the Xxxxxx Holders represents and warrants that it has not heretofore
transferred or assigned its lien on and security interest in any Collateral
under the Xxxxxx Company Security Documents or the Xxxxxx Guarantor Security
Documents.
SECTION 11. Assignments. (a) No
party hereto shall assign its rights hereunder or any interest herein or any
of
its rights or interests pursuant to the respective Security Documents made
by it
or in its favor, or any of its obligations hereunder or thereunder, to any
other
Person (i) without the prior written consent of the Senior Secured Parties
holding a majority of the amount of the Obligations to such Senior Secured
Parties and (ii) in compliance with Section 11(b) below.
(b) In
the
event of any assignment of any Security Document by any party hereto or by
any
successor or assignee of any party hereto or by any other party which may now
or
hereafter have any rights, title or interest in such Security Document,
respectively, the terms of such assignment shall provide that, and the assigned
Security Document shall bear a legend to the effect that (i) all provisions
of
such agreement, including provisions relating to the assignment thereof, shall
be subject to the terms of this Agreement and that in the event of any conflict
between such agreement and this Agreement, this Agreement shall prevail and
(ii)
the assignee of such Security Document shall be bound by all duties and
obligations of the assignor of such Security Document under this
Agreement.
(c) Notwithstanding
anything to the contrary in this Agreement, each party hereto acknowledges
the
assignment before the date hereof by Xxxxxx to the Xxxxxx Holders (and/or the
Agent) of all of Xxxxxx’x rights and interests under the Xxxxxx Company Security
Documents, the Xxxxxx Guarantor Security Documents, the Xxxxxx Guaranty, the
Xxxxxx Loan Agreement, the Xxxxxx Term Loan and the Xxxxxx Note.
SECTION 12. Continuing
Agreement; Assignments of Obligations. (a) This
Agreement shall remain in full force and effect until the date on which all
Obligations shall have been indefeasibly paid in full and no Obligations are
outstanding.
(b) This
Agreement shall be binding upon, and inure to the benefit of and be enforceable
by, each party hereto and its successors, permitted transferees and assigns.
(c) Without
limiting the generality of Section 12(b) above, except as otherwise provided
in
Section 11, nothing in this Agreement shall preclude any Secured Creditor from
assigning or otherwise transferring all or any porting of its rights and
obligations under any Transaction Document to any other Person, and such other
Person shall thereupon become vested with all the rights in respect thereof
granted to such Secured Creditor herein or otherwise, in each case as provided
in the respective Transaction Documents.
SECTION 13. Amendment;
Modification; Waiver of Documents. (a) Except
as otherwise expressly provided herein, no provision of this Agreement may
be
supplemented, amended, or otherwise modified or waived other than by a writing
signed by the parties hereto holding (i) at least 60% of the outstanding
principal amount under the 2005 Notes and (ii) at least 60% of the outstanding
principal amount under the Xxxxxx Note. Without limiting the generality of
the
foregoing, the parties expressly acknowledge that no amendment, waiver or
modification of Sections 2 or 3 of this Agreement shall require any consent
of
any Grantor. Furthermore, except as otherwise expressly provided herein, no
rights of any Secured Creditor in any item of Collateral may be amended,
supplemented, or otherwise modified (whether by virtue of supplement or
amendment to or other modification of this Agreement, any Transaction Document
or otherwise) without the prior written consent of such parties as would be
sufficient to amend this Agreement pursuant to the first sentence of this
Section 13. Anything herein to the contrary notwithstanding (but except as
otherwise specified in the following sentence), each Secured Creditor may make
supplements or amendments to, or modifications or waivers of the provisions
of
its Transaction Documents in accordance with the terms thereof without the
prior
written consent of or notice to any other Person, except for any changes in
the
definition of "Company Collateral" or "Guarantor Collateral" (or similar terms)
set forth therein resulting in increase of the rights of such Secured Creditor
in such item, which changes in such definitions shall require the prior written
consent of such parties as would be sufficient to amend this Agreement pursuant
to the first sentence of this Section 13.
(b) To
the
extent any provision of Section 13(a) or (b) hereof requires the consent of
any
Secured Creditor under one or more Security Documents to which such Secured
Creditor is a party, the effectiveness of such consent shall be determined
in
accordance with such Security Documents.
SECTION 14. Intercreditor
Agreement for Benefit of Parties Hereto. Nothing
in this Agreement, express or implied, is intended or shall be construed to
confer upon any person or entity other than the Secured Creditors any right,
remedy or claim by reason of this Agreement or any covenant, condition or
stipulation hereof; and the covenants, stipulations and agreements contained
in
this Agreement are and shall be for the sole and exclusive benefit of the
parties hereto, and their respective successors and assigns.
SECTION 15. Notices. All
notices, demands or other communications given hereunder shall be in writing
and
shall be sufficiently given if transmitted by facsimile or delivered either
personally or by a nationally recognized courier service marked for next
business day delivery or sent in a sealed envelope by first class mail, postage
prepaid and either registered or certified, return receipt requested, addressed
as follows:
if
to any
Xxxxxx Holder or 2005 Lender, to it as set forth opposite its signature on
the
signature pages hereto;
if
to the
Company, to 000 X. Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, fax no. (000)
000-0000, to the attention of Xx. Xxxxxx X. Xxxxxxx, Chief Executive Officer;
if
to the
Grantors and Guarantors, as applicable to: (i) Acura Pharmaceutical
Technologies, Inc., c/o the Company at the notice address or fax number above;
or (ii) Axiom Pharmaceutical Corporation, c/o the Company at the notice address
or fax number above;
if
to any
future Grantor or Guarantor, at such address given by such Grantor or Guarantor
for notices to it; and
or
to
such other address with respect to any party hereto as such party may from
time
to time notify (as provided above) the other parties hereto.
Any
such
notice, demand or communication shall be deemed to have been given (i) on the
date of delivery, if delivered personally, (ii) on the date of facsimile
transmission, receipt confirmed, (iii) one business day after delivery to a
nationally recognized overnight courier service, if marked for next day delivery
or (iv) five business days after the date of mailing, if mailed.
SECTION 16. Individual
Action. No
Secured Creditor may require any other Secured Creditor to take or refrain
from
taking any action hereunder or with respect to any of the Collateral, except
as
and to the extent expressly set forth in this Agreement. Except as otherwise
specified herein, no Secured Creditor shall be responsible to the other Secured
Creditors for any recitals, statements, representations or warranties contained
in this Agreement, any of the Transaction Documents, or any other agreements
or
instruments executed and delivered by any Grantor pursuant to any of the
Transaction Documents or in any certificate of other document referred to or
provided for in, or received by either of them under, any of the Transaction
Documents or for the authenticity, accuracy, completeness, value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the
Transaction Documents or any other document referred to or provided for therein
or any lien under any Transaction Document, or the perfection of any such lien
or for any failure by any Grantor to perform any of its Obligations under any
of
the Transaction Documents. Each Secured Creditor may employ agents and
attorneys-in-fact and shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of
any
such agents or attorneys-in-fact selected by it with reasonable care. No Secured
Creditor, and none of its directors, officers, employees or agents shall be
liable or responsible for any action taken or omitted to be taken by it or
them
hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct.
SECTION 17. Reliance. In
acting with respect to this Agreement, each of the Secured Creditors shall
be
entitled (a) to rely on any communication believed by it to be genuine and
to
have been made, sent or signed by the Person by whom it purports to have been
made, sent or signed and (b) to rely on the advice or services or opinions
and
statements of any professional advisor whose advice or services to it seem
necessary, expedient or desirable and are given or made in connection with
this
Agreement.
SECTION 18. No
Waiver; Remedies. Except
as otherwise specified herein, no failure on the part of any Secured Creditor
to
exercise and no delay in exercising, any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right
or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right. The rights and remedies herein provided are cumulative
and
not exclusive of any remedies provided by law.
SECTION 19. Severability. If
any provision of this Agreement shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
SECTION 20. Governing
Law. This
Agreement 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
Agreement were negotiated, excluding to the greatest extent permitted by law
any
rule of law that would cause the application of the laws of any jurisdiction
other than the State of New York.
SECTION 21. Jurisdiction. (a) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or United States Federal court sitting in New York City, and any appellate
court
from any thereof, in any action or proceeding arising our of or relating to
this
Agreement or any of the other Transaction Documents to which it is a party,
or
for recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such United States Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or any other manner provided by law.
Nothing in this Agreement or any other Transaction Document shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Transaction Documents in the
courts of any jurisdiction.
(b) Each
of
the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
in relation to this Agreement or any other Transaction Document to which it
is a
party in any such New York State or United States Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action
or
proceeding in any such court.
SECTION 22. Waiver
of Jury Trial. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION
DOCUMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 23. Titles
and Subtitles. The
titles of the articles, sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
SECTION 24. Counterparts. This
Agreement may be executed in any number of counterparts, including by facsimile
copy, each of which shall be deemed an original, but all of which together
shall
constitute one instrument.
SECTION 25. Entire
Agreement. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior representations,
negotiations, writings, memoranda and agreements.
[Signature
pages follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of
the
date first written above.
|
"GRANTORS"
a
New York corporation
/s/
Xxxxxx X. Xxxxxxx
By:
Xxxxxx X. Xxxxxxx
Its:
President and CEO
|
|
|
AXIOM
PHARMACEUTICAL
CORPORATION,
a
Delaware corporation
/s/
Xxxxxx X. Xxxxxxx
By:
Xxxxxx X. Xxxxxxx
Its:
President and CEO
|
|
|
ACURA
PHARMACEUTICAL
TECHNOLOGIES,
INC.,
an
Indiana corporation
/s/
Xxxxxx X. Xxxxxxx
By:
Xxxxxx X. Xxxxxxx
Its:
President and CEO
|
|
XXXXX
PARTNERS III, L.P.
By:
Claudius, L.L.C., General Partner
000
Xxxxx Xxxxxx, 0xx
Xx.
Xxx
Xxxx, Xxx Xxxx 00000
/s/
Xxxxx Xxxxxxxxxxx
By:
Xxxxx Xxxxxxxxxxx
Its:
General Partner
|
ESSEX
WOODLANDS HEALTH
VENTURES
V, L.P.
000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
/s/
Xxxxxxxx Xxxxxxxxx
By:
Xxxxxxxx Xxxxxxxxx
Its:
Managing Director
|
|
XXXXX
PARTNERS INTERNATIONAL, III, L.P.
By:
Claudius, L.L.C., General Partner
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
/s/
Xxxxx Xxxxxxxxxxx
By:
Xxxxx Xxxxxxxxxxx
Its:
General Partner
|
CARE
CAPITAL INVESTMENTS II, LP
By:
Care Capital II, LLC, as general partner
00
Xxxxxxx Xx., Xxxxx 000
Xxxxxxxxx,
XX 00000
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Authorized Signatory
|
|
XXXXX
EMPLOYEE FUND III, L.P.
By:
Wesson Enterprises, Inc.
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
/s/
Xxxxx X. Xxxxxx
By:
Xxxxx X. Xxxxxx
Its:
General Partner
|
CARE
CAPITAL OFFSHORE
INVESTMENTS
II, LP
By:
Care Capital, L.L.C., as general partner
00
Xxxxxxx Xx., Xxxxx 000
Xxxxxxxxx,
XX 00000
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Authorized Signatory
|
|
XXXXXXX
XXXXXXXX
0000
Xxxx Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxxx 00000
/s/
Xxxxxxx Xxxxxxxx
|
XXXXX
XXXXXXXX
0000
Xxxx Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxxx 00000
/s/
Xxxxx Xxxxxxxx
|
|
XXXX
X. XXXXX, XX.
000
X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxxxxxx 00000
/s/Xxxx
X. Xxxxx, Xx.
|
XXXXXX
XXXXX
000
Xxxxxx Xxxx
Xxxxxx,
Xxxxxxxxxxxx 00000
/s/
Xxxxxx Xxxxx
|
|
XXXXX
XXXXXXXXX
XX
Xxxxxx LLC
000
Xxxx 00xx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
/s/
Xxxxx Xxxxxxxxx
|
XXXXXX
X. XXXXXXXX
000
Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
/s/
Xxxxxx X. Xxxxxxxx
|
