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EXHIBIT 4.6
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT, dated as of April 14, 2000 (this "Agreement"),
is by and between First Horizon Pharmaceutical Corporation, a Delaware
corporation (the "Company"), and the Kapoor Children's 1992 Trust (the "Trust").
WITNESSETH:
WHEREAS, the Company has entered into an Amended and Restated Loan and
Security Agreement (as amended and existing on the date hereof, the "Existing
Loan Agreement") with LaSalle Bank, N.A. (the "Lender"); and
WHEREAS, the Company and the Lender shall enter into a third amendment
to the Existing Loan Agreement (the "Amendment") pursuant to which the Lender
shall loan to the Company $13 million (the "Bridge Loan") for the purposes set
forth in the Amendment, which loan shall be evidenced by a term note in favor of
Lender (the "Bridge Note"); and
WHEREAS, as security for the indebtedness of the Company evidenced by
the Bridge Note, and as a condition to the Lender's entering into the Amendment,
the Trust shall on the date hereof execute a Security Agreement Re: Investment
Account (the "Pledge Agreement") in favor of Lender pursuant to which the Trust
shall, subject to the terms and conditions set forth in the Pledge Agreement,
pledge certain Collateral (as defined in the Pledge Agreement) to the Lender for
the benefit of the Company; and
WHEREAS, the Trust has agreed to enter into the Pledge Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the Company and the
Trust hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Certain Defined Terms. In addition to terms elsewhere
defined herein, the following terms shall have the following respective
meanings:
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which the Lender is not open to the public for carrying on substantially
all of its banking functions in Chicago, Illinois.
"Capital Lease" of any person shall mean any lease which, in accordance
with Generally Accepted Accounting Principles, is or should be capitalized on
the books of such person.
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"Closing Date" shall mean the date of this Agreement which shall be the
same date as the Amendment and the Pledge Agreement are dated.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder.
"Contingent Liabilities" of any person shall mean, as of any date, all
obligations of such person or of others for which such person is contingently
liable, as obliger, guarantor, surety, accommodation party, partner or in any
other capacity, or in respect of which obligations such person assures a
creditor against loss or agrees to take any action to prevent any such loss
(other than endorsements of negotiable instruments for collection in the
ordinary course of business), including without limitation all reimbursement
obligations of such person in respect of any letters of credit, surety bonds or
similar obligations (including, without limitation, bankers acceptances) and all
obligations of such person to advance funds to, or to purchase assets, property
or services from, any other person in order to maintain the financial condition
of such other person.
"Default" shall mean any event or condition which might become an Event
of Default with notice or lapse of time or both.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"Environmental Laws" as of any date shall mean all provisions of law,
statute, ordinances, rules, regulations, judgments, writs, injunctions, decrees,
orders, awards and standards promulgated by the government of the United States
of America or any foreign government or by any state, province, municipality or
other political subdivision thereof or therein or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean, with respect to any person, any trade or
business (whether or not incorporated) which, together with such person or any
Subsidiary of such person, would be treated as a single employer under Section
414 of the Code.
"Event of Default" shall mean any of the events or conditions described
in Section 6.01.
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"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles applied on a basis consistent with that reflected
in the financial statements referred to in Section 4.01(g) hereof.
"Hazardous Materials" includes, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901, et seq.), and in the
regulations adopted and publications promulgated pursuant thereto, or any other
federal, state or local government law, ordinance, rule or regulation.
"Indebtedness" of any person shall mean, as of any date, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person as lessee under any Capital Lease, (c) all obligations which are secured
by any Lien existing on any asset or property of such person whether or not the
obligation secured thereby shall have been assumed by such person (to the extent
of such Lien if such obligation is not assumed), (d) all obligations of such
person for the unpaid purchase price for goods, property or services acquired by
such person, except for trade accounts payable arising in the ordinary course of
business that are not past due, (e) all obligations of such person to purchase
goods, property or services where payment therefor is required regardless of
whether delivery of such goods or property or the performance of such services
is ever made or tendered (generally referred to as "take or pay contracts"), (f)
all liabilities of such person in respect of Unfunded Benefit Liabilities under
any Plan of such person or of any ERISA Affiliate, (g) all obligations of such
person in respect of any interest rate or currency swap, rate cap or other
similar transaction (valued in an amount equal to the highest termination
payment, if any, that would be payable by such person upon termination for any
reason on the date of determination), and (h) all obligations of others similar
in character to those described in clauses (a) through (g) of this definition
for which such person is contingently liable, as obliger, guarantor, surety,
accommodation party, partner or in any other capacity, or in respect of which
obligations such person assures a creditor against loss or agrees to take any
action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including
without limitation all reimbursement obligations of such person in respect of
letters of credit, surety bonds or similar obligations and all obligations of
such person to advance funds to, or to purchase assets, property or services
from, any other person in order to maintain the financial condition of such
other person.
"Loan Agreement" shall mean the Existing Loan Agreement as amended by
the Amendment.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
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"Operative Documents" shall mean the Existing Loan Agreement, the
Amendment, the Pledge Agreement and any other agreement or instrument relating
thereto.
"Overdue Rate" shall mean a rate per annum equal to the sum of 300
basis points (3%) per annum plus the then effective interest rate charged by the
Lender with respect to indebtedness under the Bridge Loan.
"Person" or "person" shall include an individual, a corporation, an
association, a partnership, a trust or estate, a joint stock company, an
unincorporated organization, a joint venture, a limited liability company, a
trade or business (whether or not incorporated), a government (foreign or
domestic) and any agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any person, any pension plan
(including a Multiemployer Plan) subject to Title IV of ERISA or to the minimum
funding standards of Section 412 of the Code which has been established or
maintained by such person, any subsidiary of such person or any ERISA Affiliate,
or by any other person if such person or any ERISA Affiliate could have
liability with respect to such pension plan.
"Subordinated Debt" shall mean Indebtedness of the Company which is
expressly subordinated in right of payment to the Indebtedness of the Company to
the Trust hereunder in a manner satisfactory to the Trust in its sole
discretion.
"Subsidiary" of any person shall mean any other person (whether now
existing or hereafter organized or acquired) in which (other than directors
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such person or by one or more of the other Subsidiaries of such
person or by any combination thereof. Unless otherwise specified, reference to
"Subsidiary" shall mean a Subsidiary of the Company.
"Unfunded Benefit Liabilities" shall mean, with respect to any Plan as
of any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
SECTION 1.02 Other Definitions: Rules of Construction. As used herein,
the terms "Company", "Trust", and "Agreement" shall have the respective meanings
ascribed thereto in the introductory paragraph of this Agreement. All financial
terms used herein shall be made or construed in accordance with Generally
Accepted Accounting Principles existing on the date hereof unless such
principles are inconsistent with the express requirements of this Agreement.
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Use of the terms "herein", "hereof", and "hereunder" shall be deemed references
to this Agreement in its entirety and not to the Section or clause in which such
term appears. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided.
ARTICLE II.
AMOUNT AND TERMS OF THE LIMITED GUARANTY
SECTION 2.01 Pledge Agreement. The Trust agrees, on the terms and
subject to the conditions hereinafter set forth, to execute and perform its
obligations under the Pledge Agreement for the benefit of the Lender. Execution
and delivery of the Pledge Agreement will be conditioned upon satisfaction of
the conditions precedent set forth in Section 3.01 hereof.
SECTION 2.02 Pledge Fees. In consideration for the Trust's execution
and delivery of the Pledge Agreement, the Company agrees to make the following
payments to the Trust:
(a) The Company shall pay to the Trust a fee of $100,000 per year,
payable quarterly in arrears on the fifteenth day of each of July, October,
January and April beginning on July 15, 2000, pro rated based on the period of
time that the Lender had a security interest or other claim with respect to
Trust assets under the Pledge Agreement during the period to which such payment
relates, provided that, until the Lender provides a written release of the
Collateral, the Lender shall be considered to have a security interest and claim
under the Pledge Agreement for purposes of this paragraph; and
(b) The Company shall pay to the Trust any and all expenses incurred in
connection with the negotiation, documentation and execution of the Pledge
Agreement (including the Trust's legal fees) on or prior to the execution and
delivery by the Trust to the Lender of the Pledge Agreement.
SECTION 2.03 Reimbursement. The Company shall pay to the Trust (i) on
any date on which the Trust shall be required to make a payment under the Pledge
Agreement, a sum equal to the amount so paid by the Trust, (ii) within 30 days
of demand by the Trust, any and all expenses incurred by the Trust in enforcing
or protecting any rights under this Agreement or any of the other Operative
Documents, including without limitation reasonable attorneys' fees relating to
such enforcement or protection, provided that such expenses are attributable to
the Trust's entering into or performing its obligations under the Operative
Documents to which it is a party, and (iii) forthwith upon demand by the Trust,
interest on any and all amounts remaining unpaid by the Company under this
Agreement at any time from the date any such amount becomes payable until
payment in full, at the Overdue Rate.
SECTION 2.04 Additional Costs. In the event the Trust makes any payment
under or is otherwise required to perform any obligation under the Pledge
Agreement, the Company shall
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pay to the Trust all costs, expenses, fees and commissions incurred by the Trust
in connection with making such payment or performing such obligations to the
extent such costs, expenses, fees or commissions would not have otherwise been
incurred by the Trust but for its execution or performance of its obligations
under the Operative Documents to which it is a party.
SECTION 2.05 Taxes; Make Whole Requirement. In the event that the Trust
incurs any federal, state or local tax liability (including any tax liability
that would otherwise have been deferred in whole or in part to some future date)
in connection with executing or performing its obligations under the Pledge
Agreement, then the Company shall pay to the Trust an amount, determined by the
Trust in its reasonable judgement, which shall put the Trust in the same
economic position as it would have been had such tax liability not been incurred
or had been deferred. The Company's liability under this Section 2.05 shall not
include capital gains taxes incurred by the Trust in connection with sales made
by the Trust not related to the performance of its obligations under the Pledge
Agreement.
SECTION 2.06 Payments and Computations. The Company shall make each
payment hereunder in lawful money of the United States of America to the Trust
at its address referred to in Section 7.02 hereof in immediately available
funds. All computations of interest, commissions and fees hereunder shall be
made by the Trust on the basis of a year of 365 or 366 days, as the case may be,
for the actual number of days elapsed.
SECTION 2.07 Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day which is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of such payment.
SECTION 2.08 Obligations Absolute. The obligations of the Company under
this Agreement shall be absolute, unconditional and irrevocable and such
obligations of the Company shall not be affected, modified or impaired upon the
happening of any event, including, without limitation, any of the following,
whether or not with notice to, or the consent of, the Company:
(a) Any lack of validity or enforceability of any of the Operative
Documents;
(b) Any amendment, modification, waiver, consent, or any substitution,
exchange or release of or failure to perfect any interest in collateral or
security, with respect to any of the Operative Documents;
(c) The existence of any claim, setoff, defense or other right which
the Company may have at any time against the Lender (or any persons or entities
for whom the Lender may be acting), the Trust or any other person or entity,
whether in connection with this Agreement, any of the Operative Documents, the
transactions contemplated herein or therein or any unrelated transactions;
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(d) Payment by the Trust under the Pledge Agreement which does not
comply with the terms of the Pledge Agreement; provided, however, that in any
such event, upon payment in full by the Trust, the Company shall be subrogated
to the Trust's rights against the person to whom such payment was made;
(e) Any failure, omission, delay or lack on the part of the Trust or
any party to any of the Operative Documents in enforcing, asserting or
exercising any right, power or remedy conferred upon the Trust or any such party
under this Agreement or any of the Operative Documents, or any other acts or
omissions on the part of the Trust or any such party;
(f) The voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets of the Company, the
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or readjustment or other
similar proceedings affecting the Company or any of the assets of either of
them, or any allegation or contest of the validity of this Agreement or any of
the Operative Documents, in any such proceeding;
(g) Any other event or action that would, in the absence of this
clause, result in the release or discharge by operation of law of the Company
from the performance or observance of any obligation, covenant or agreement
contained in this Agreement;
(h) Any action by the Trust relating to the management of the Trust's
assets which may have the effect of increasing the Company's liability to the
Trust hereunder, including the allocation of Trust assets and the liquidation of
securities in connection with any payment required under the Pledge Agreement;
or
(i) No setoff, counterclaim, reduction or diminution of any obligation,
or any defense of any kind or nature which the Company has or may have against
the Lenders shall be available hereunder to the Company against the Trust.
ARTICLE III.
CONDITIONS OF DELIVERY; CLOSING DOCUMENTS
SECTION 3.01 Conditions Precedent to Execution and Delivery of the
Pledge Agreement. The obligation of the Trust to execute and deliver the Pledge
Agreement is subject to the satisfaction of the following conditions precedent:
(a) Documents. On or before the date of execution and delivery of the
Pledge Agreement, the Trust shall have received the following documents, each in
form and substance satisfactory to the Trust:
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(i) Organizational Documents. A copy of the articles of
organization of the Company and a good standing certificate, certified to a
current date by the Secretary of State of Delaware.
(ii) By-laws and Corporate Authorizations. Copies of the
By-laws of the Company and corporate resolutions of the Company approving this
Agreement and the Operative Documents to which the Company is a party and the
consummation by the Company of the transactions contemplated hereby and thereby,
and copies of all other documents evidencing necessary action of the Company
with respect to this Agreement, all certified as true and correct on the Closing
Date by the Company's secretary.
(iii) Incumbency Certificate. A certificate of incumbency of
the Company containing, and attesting to the genuineness of, the signatures of
those officers of the Company authorized to act on behalf of the Company in
connection with the Operative Documents to which it is a party and the
consummation by the Company of the transactions contemplated thereby, certified
as true and correct as of the Closing Date by a duly authorized officer of the
Company.
(iv) Consents, Approvals, Etc. Copies of all consents and
approvals necessary for the Company to enter into this Agreement, the Loan
Agreement, the Convertible Note, the Operative Documents to which the Company is
a party and the transactions contemplated herein and therein, together with a
certificate of an authorized officer of the Company dated such date of issuance
stating that such approvals are true and correct copies thereof and are in full
force and effect at such date, or if none are required a certificate to that
effect executed by an authorized officer of the Company.
(v) Operative Documents. A copy of the Existing Loan
Agreement and an executed copy of the Amendment and each of the other Operative
Documents.
(vi) Company Closing Certificate. A certificate of an
authorized officer of the Company as to the matters set forth in Sections
3.01(b) and (c) below.
(vii) Other Documents. Such other documents, instruments,
approvals or opinions (and, if requested by the Trustee, certified duplicates of
executed copies thereof) as the Trust may reasonably request.
(b) No Misrepresentation. The representations and warranties of
the Company contained in Article IV of this Agreement are true and correct on
and as of the Closing Date as though made on and as of such date.
(c) No Default. No event has occurred and is continuing, or would
result from such issuance, which constitutes a Default or an Event of Default.
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(d) Pledge Agreement. The Lender shall have executed and delivered the
Pledge Agreement to the Trust containing terms and conditions satisfactory to
the Trust.
(e) Counsel Approval. All of the Operative Documents shall be in form
and substance reasonably satisfactory to Xxxxx, Xxxxxx, XxxXxx & Xxxxxxxxxx,
P.C., counsel for the Trust.
SECTION 3.02 Deliveries by the Trust. The Trust agrees to provide to
the Company copies of any documents required by the Lender in connection with
the execution and delivery of the Pledge Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Company. The Company
represents and warrants to the Trust as follows:
(a) Company Existence and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business, and is in good standing, in all
additional jurisdictions where such qualification is necessary under applicable
law. The Company has all requisite power to own or lease the properties used in
its business and to carry on its business as now being conducted and as proposed
to be conducted, and to execute and deliver this Agreement and the Operative
Documents to which it is party and to engage in the transactions contemplated by
this Agreement.
(b) Company Authority. The execution, delivery and performance by the
Company of this Agreement and the Operative Documents to which it is a party do
not contravene any law or any contractual restriction binding on or affecting
it, and do not result in or require the creation of any lien, security interest
or other charge or encumbrance (except as provided in or contemplated by this
Agreement or the Loan Agreement) upon or with respect to any of its properties;
the execution, delivery and performance by the Company of this Agreement and the
Operative Documents to which it is a party have been duly authorized by all
necessary action and do not contravene the Company's articles of organization or
agreement or any contract or undertaking to which the Company is a party or by
which the Company or its property may be bound or affected.
(c) Consents. Etc. All necessary consents, authorizations or approvals
of, or other action by, or notice to or filing with, any governmental or
regulatory authority or any
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nongovernmental person or entity required to be obtained or made by the Company
in connection with (i) the execution, delivery and performance by the Company of
this Agreement, (ii) the execution and delivery of the Loan Agreement or the
other Operative Documents, or (iii) any of the other transactions contemplated
by this Agreement or the Operative Documents.
(d) Binding Effect. This Agreement and the Operative Documents to which
the Company is a party are legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy and insolvency law and general principles of
equity.
(d) Loan Agreement. The representations and warranties of the Company
contained in the Loan Agreement are incorporated herein by reference and the
Company represents that such representations and warranties and true and correct
on the date hereof in all material respects, without consideration to any waiver
granted by the Lender.
SECTION 4.01 Representations and Warranties of the Trust. The Trust represents
that it is authorized to enter into this Agreement and the Pledge Agreement.
ARTICLE V.
COVENANTS OF THE COMPANY
SECTION 5.01 Affirmative Covenants. So long as the Trust has
obligations under the Pledge Agreement or the Lender has a security interest in
Trust assets pursuant to the Pledge Agreement, the Company will, unless the
Trust shall otherwise consent in writing:
(a) Preservation of Company Existence. Etc. Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and its qualification in good standing in each jurisdiction in which
such qualification is necessary under applicable law, and the rights, licenses,
permits (including those required under Environmental Laws), franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
businesses; and defend all of the foregoing against all claims, actions,
demands, suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency or regulatory authority.
(b) Compliance with Laws. Etc. Comply in all material respects with all
applicable laws, rules, regulations and orders of any governmental authority,
whether federal, state, local or foreign (including without limitation, ERISA,
the Code and Environmental Laws) in effect from time to time, non-compliance
with which could materially and adversely affect the financial condition or
operations of the Company (such compliance to include, without limitation,
paying before the same become delinquent all taxes, assessments and governmental
charges imposed
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upon the Company or upon its property the non-payment of which could materially
and adversely affect the financial condition or operations of the Company)
except to the extent that compliance with any of the foregoing is then contested
in good faith and by appropriate legal proceedings and with respect to which
adequate reserves have been established on the books and records of the Company.
(c) Maintenance of Properties: Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Company and keep such property in good repair, working order and condition and
from time to time make, or cause to be made all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times in accordance with customary and prudent business practices for
similar businesses; and, in addition to that insurance required under the
Operative Documents, maintain in full force and effect insurance with
responsible and reputable insurance companies or associations in such amounts,
on such terms and covering such risks, including fire and other risks insured
against by extended coverage, as is usually carried by companies engaged in
similar businesses and owning similar properties similarly situated and maintain
in full force and effect public liability insurance, insurance against claims
for personal injury or death or property damage occurring in connection with any
of its activities or any properties owned, occupied or controlled by in such
amount as it shall reasonably deem necessary, and maintain such other insurance
as may be required by law.
(d) Compliance with Loan Agreement. The Borrower shall comply in all
material respects with the agreements, covenants and terms of the Loan Agreement
and shall give the Trust prompt notice of any failure on the part of the Company
to comply with the agreements, covenants and terms of the Loan Agreement
regardless of any waiver on the part of the Lender.
(e) Notices and Reports under Loan Agreement. To the extent the Loan
Agreement requires the Company to provide any notices, financial statements,
operating information, notices of default or other information to the Lender,
the Company shall also provide copies of such information to the Trust.
(f) Payments. Except with respect to payments required under the Loan
Agreement, the Company agrees that any payments made to the Bank relating to the
Loan Agreement shall be applied to the Bridge Loan until it is paid in full. The
amount outstanding under the Bridge Note may not at any time be increased
without the written consent of the Trust.
SECTION 5.02 Negative Covenants. So long as the Trust has any
obligation under the Pledge Agreement or the Lender has a security interest in
Trust assets under the Pledge Agreement, the Company will not, without the prior
written consent of the Trust:
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(a) Indebtedness. Create, incur, assume or in any manner become liable
in respect of, or suffer to exist, any Indebtedness or enter into any lease as
lessee (whether or not a Capital Lease) other than:
(i) The Indebtedness under the Operative Documents and hereunder,
and other Indebtedness to the Lender;
(ii) Indebtedness existing on the date hereof and permitted under
the Loan Agreement; and
(iii) Subordinated Debt which is unsecured.
(b) Liens. Create, permit to be created or permit to exist any lien,
mortgage, encumbrance or other security interest (collectively, "Liens") with
respect to any of the Company's property other than:
(i) Liens in favor of the Lender; and
(ii) Liens existing on the date hereof and relating to
Indebtedness permitted under Section 5.02(b)(i)and (ii).
(b) Inconsistent Agreements. Enter into any agreement containing any
provision which would be violated or breached by this Agreement or any of the
transactions contemplated hereby or by performance by the Company of its
obligations in connection therewith.
(c) Subordinated Debt. Make any payment in violation of the terms
applicable to any Subordinated Debt.
(d) Amendment to Loan Agreement. Agree to any modification, amendment
or other modifying agreement or understanding with respect to the Loan
Agreement.
ARTICLE VI.
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. The occurrence of any of the following
events shall be an Event of Default hereunder unless waived by the Trust
pursuant to Section 7.01 hereof:
(a) Nonpayment. The Company shall fail to pay when due any amount
payable pursuant to Section 2.03, 2.04 or 2.05 hereof; or
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(b) Misrepresentation. Any representation or warranty made by the
Company in connection with this Agreement or any of the Operative Documents
shall prove to have been incorrect in any material respect when made; or
(c) Certain Covenants. The Company shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(a), 5.01(d) or 5.02
hereof; or
(d) Other Defaults. The Company shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement, and such failure
shall remain unremedied for 30 calendar days after written notice thereof shall
have been given to the Company by the Trust; or
(e) Cross Default. The Company shall fail to pay any part of the
principal of, the premium, if any, or the interest on, or any other payment of
money due under the Loan Agreement or any of its other Indebtedness having a
principal balance, individually or in the aggregate, in excess of $100,000
(other than Indebtedness hereunder) beyond any period of grace provided with
respect thereto, or if the Company fails to perform or observe any other
agreement, term or condition contained in any document evidencing or securing
such Indebtedness or in any agreement or instrument under which any such
Indebtedness was issued or created, beyond any period of grace, if any, if the
effect of such default is either to cause the holder or holders thereof (or a
trustee on its or their behalf) to cause the Indebtedness to become due prior to
its stated maturity unless such default has been waived pursuant to the terms of
such other agreement; or
(f) Operative Documents. A default (not caused by the failure of the
Trust to perform its payment obligations under the Pledge Agreement) under any
of the Operative Documents shall have occurred and be continuing without being
cured or waived pursuant thereto; or
(g) Judgments. One or more judgments or orders for the payment of money
in an aggregate amount in excess of $100,000 shall be rendered against the
Company, or any other judgment or order (whether or not for the payment of
money) shall be rendered against the Company which causes a material adverse
change in the business, properties, operations or condition, financial or
otherwise, of the Company or which has a material adverse effect on the
legality, validity or enforceability of this Agreement or the Security
Documents, and either (i) such judgment or order shall have remained unsatisfied
and the Company shall not have taken action necessary to stay enforcement
thereof by reason of pending appeal or otherwise, prior to the expiration of the
applicable period of limitations for taking such action or, if such action shall
have been taken, a final order denying such stay shall have been rendered, or
(ii) enforcement proceedings shall have been commenced by any creditor upon any
such judgment or order; or
(h) Insolvency. Etc. The Company shall be dissolved or liquidated (or
any judgment, order or decree therefor shall be entered), or shall generally not
pay its debts as they become due,
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or shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors, or shall institute, or
there shall be instituted against the Company any proceeding or case seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the entry of an order for relief,
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its assets, rights, revenues or property,
and, if such proceeding is instituted against the Company and is being contested
by the Company in good faith by appropriate proceedings, such proceeding shall
remain undismissed unstayed for a period of 60 days; or the Company shall take
any action (corporate or other) to authorize or further any of the actions
described above in this subsection.
SECTION 6.02 Remedies upon an Event of Default. If any Event of Default
shall have occurred and be continuing, the Trust may (i) if the Pledge Agreement
shall not have been executed and delivered, terminate its commitment to provide
the Pledge Agreement or (ii) in any event, exercise such other rights and
remedies as are available to the Trust under this Agreement, any of the
Operative Documents or applicable law.
SECTION 6.03 Failure to make Payment by the Trust. If the Trust shall
fail to observe any payment obligation required by the Bank under the Pledge
Agreement, the Company's obligation to pay the fee provided for under Section
2.02(a) shall be temporarily suspended during the period of such failure,
provided that such fee shall continue to accrue and all other payment and
reimbursement obligations shall remain in full force and effect during such
period, and, provided further that any waiver or suspension by the bank of any
such payment obligation shall constitute a waiver of the Company hereunder. The
Company shall not be obligated to pay to the Trust any expenses of the Trust
hereunder to the extent such expenses are due solely to the Trust's failure to
observe any payment obligation required by the bank under the Pledge Agreement.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.01 Amendments. Etc. This Agreement may be amended from time
to time by the written agreement of all parties hereto. No amendment or waiver
of any provision of this Agreement nor consent to any departure by the Company
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Trust, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
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SECTION 7.02 Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing and mailed by first
class mail, return receipt requested, by overnight delivery with a nationally
recognized carrier or personally delivered as follows:
If to the Company:
First Horizon Pharmaceutical Corporation
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Bala Venkataramin
Tel:
Fax: 000-000-0000
If to the Trust:
Kapoor Children's 1992 Trust
c/o EJ Financial Enterprises
000 X. Xxxxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as either party may provide in writing to the other.
SECTION 7.03 Costs, Expenses and Taxes. Subject to Section 2.02(b) of
this Agreement and the other terms of this Agreement, he Company agrees to pay
within 30 days of demand by the Trust all reasonable costs and expenses in
connection with the preparation, execution, delivery, filing, recording and
administration of this Agreement and any other documents which may be delivered
in connection with this Agreement, including, without limitation, the reasonable
fees and out-of-pocket expenses of Xxxxx, Xxxxxx, MacKay & Xxxxxxxxxx, P.C.,
counsel to the Trust, with respect thereto and with respect to advising the
Trust as to its rights and responsibilities under this Agreement and all
reasonable costs and expenses (including counsel fees and expenses) in
connection with the enforcement of this Agreement or the other Operative
Documents, and all other documents and instruments which may be delivered in
connection with this Agreement or the other Operative Documents.
SECTION 7.04 Binding Effect: Assignment. This Agreement shall become
effective when it shall have been executed and delivered by the Company and the
Trust and thereafter shall be binding upon and inure to the benefit of the
Company and the Trust and their respective successors and assigns, except that
(i) the Company shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Trust, which will not
be
16
unreasonably withheld, delayed or conditioned, and (ii) the Trust shall not have
the right to assign its rights hereunder without the prior written consent of
the Company, which will not be unreasonably withheld, delayed or conditioned
provided, however, that no consent of the Company shall be required for an
assignment of all or any part of, or any interest (divided or undivided) in, the
Trust's rights and benefits under this Agreement by the Trust to an entity
controlling, controlled by or under common control with Xx. Xxxx X. Xxxxxx, or
to any person who is related by blood, marriage or adoption to Xx. Xxxx X.
Xxxxxx, it being acknowledged that to the extent of any such assignment, such
assignee shall have the same rights and benefits against the Company hereunder
as it would have had if such assignee were the Trust hereunder.
SECTION 7.07 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
SECTION 7.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Illinois without giving
effect to choice of law principles of such State.
SECTION 7.09 Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
SECTION 7.10 Counterparts. This Agreement may be executed in any number
of counterparts, each of which, when so executed and delivered, shall be deemed
to be an original, but all such counterparts taken together shall constitute but
one and the same Agreement.
SECTION 7.11 WAIVER OF JURY TRIAL. THE TRUST AND THE COMPANY, AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF EITHER OF THEM. NEITHER THE TRUST NOR THE COMPANY SHALL
SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE
OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN
MODIFIED IN ANY
17
RESPECT OR RELINQUISHED BY EITHER THE TRUST OR THE COMPANY EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY BOTH OF THEM.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective representatives hereunto duly
authorized as of the date first above written.
FIRST HORIZON PHARMACEUTICAL CORPORATION
By:
-----------------------------------------
Its:
---------------------------------------
KAPOOR CHILDREN'S 1992 TRUST
By:
-----------------------------------------
Xxxxxx Xxxxxx, Trustee
