AMENDED AND RESTATED SUBORDINATION AGREEMENT
Exhibit 10.6
Execution Copy
AMENDED AND RESTATED
This AMENDED AND RESTATED SUBORDINATION AGREEMENT dated as of August 17, 2009 (this
“Agreement”) is by and among THE ▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST DATED SEPTEMBER 20, 1989
(“Subordinated Creditor”), AKORN, INC., a Louisiana corporation (“Akorn”), AKORN
(NEW JERSEY), INC., an Illinois corporation (“Akorn New Jersey” and together with Akorn,
the “Companies” and each a “Company”), and EJ FUNDS, LP (“EJ Funds”), a
Delaware limited partnership (and assignee of General Electric Capital Corporation, a Delaware
corporation (“GE Capital”) (“Agent”) for all Senior Lenders party to the Restated
Credit Agreement described below) and amends and restates that certain Subordination Agreement
entered into as of January 7, 2009, by and among the same parties.
RECITALS
A. The Companies, Agent and Senior Lenders (as hereinafter defined) have entered into a Credit
Agreement dated as of January 7, 2009, as amended by a Modification Warrant and Investor Rights
Agreement dated as of April 13, 2009 and as further amended and restated by the Amended and
Restated Credit Agreement dated as of the date hereof (as the foregoing may be further amended,
restated, supplemented or otherwise modified from time to time, the “Restated Credit
Agreement”) pursuant to which, among other things, the Senior Lenders have agreed, subject to
the terms and conditions set forth in the Restated Credit Agreement, to make certain loans and
financial accommodations to the Companies. All of the Companies’ obligations to Agent and Senior
Lenders under the Restated Credit Agreement and the other Senior Debt Documents (as hereinafter
defined) are secured by liens on and security interests in substantially all of the now existing
and hereafter acquired real and personal property of the Companies (the “Collateral”).
B. Subordinated Creditor has extended credit to the Company as evidenced by a Subordinated
Promissory Note dated as of July 28, 2008 in the principal amount of $5,000,000.00 and with accrued
but unpaid interest of $[•] and Subordinated Creditor is amending, restating, renewing and
replacing that note as of even date herewith (as the same has been and may be further amended,
restated, supplemented or otherwise modified from time to time, the “Subordinated Note”).
C. As one of the conditions precedent to the agreement of Agent and Senior Lenders to enter
into the Restated Credit Agreement, Agent and Senior Lenders have required the execution and
delivery of this Agreement by Subordinated Creditor and the Companies in order to set forth the
relative rights and priorities of Agent, Senior Lenders and Subordinated Creditor under the Senior
Debt Documents and the Subordinated Debt Documents (as hereinafter defined).
NOW, THEREFORE, in order to induce Agent and Senior Lenders to enter into the Restated Credit
Agreement, and for other good and valuable consideration, the receipt, and sufficiency of which
hereby are acknowledged, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall have the following meanings in this Agreement:
“Agent” shall mean EJ Funds, LP (as the assignee of GE Capital), as Agent for the
Senior Lenders, or any other Person appointed by the holders of the Senior Debt as agent for
purposes of the Senior Debt Documents and this Agreement.
“Bankruptcy Code” shall mean Chapter 11 of Title 11 of the United States Code, as
amended from time to time and any successor statute and all rules and regulations promulgated
thereunder.
“Distribution” means, with respect to any indebtedness, obligation or security, (a)
any payment or distribution by any Person of cash, securities, or other property (other than
payments in kind (but not in cash) of
interest on the Subordinated Debt in accordance with the terms of the Subordinated Debt
Documents and the issuance of the warrants or common stock of Akorn), by set-off or otherwise, on
account of such indebtedness, obligation or security, (b) any redemption, purchase or other
acquisition of such indebtedness, obligation or security by any Person or (c) the granting of any
lien or security interest to or for the benefit of the holders of such indebtedness, obligation or
security in or upon any property of any Person.
“EJ Funds Loan Documents” shall mean the Restated Credit Agreement and all other
agreements, documents and instruments executed from time to time in connection therewith, including
without limitation any agreements, documents and instruments evidencing “Obligations” as such term
is defined in the Restated Credit Agreement, in each case, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“Enforcement Action” shall mean (a) to take from or for the account of either Company
or any guarantor of the Subordinated Debt, by setoff or in any other manner, the whole or any part
of any moneys which may now or hereafter be owing by the Company or any such guarantor with respect
to the Subordinated Debt, (b) to ▇▇▇ for payment of, or to initiate or participate with others in
any suit, action or proceeding against either Company or any such guarantor to (i) enforce payment
of or to collect the whole or any part of the Subordinated Debt or (ii) commence judicial
enforcement of any of the rights and remedies under the Subordinated Debt Documents or applicable
law with respect to the Subordinated Debt, (c) to accelerate the Subordinated Debt (but excluding
any acceleration occurring by operation of law in connection with bankruptcy proceedings), (d) to
exercise any put option or to cause either Company or any such guarantor to honor any redemption or
mandatory prepayment obligation under any Subordinated Debt Document or (e) to take any action
under the provisions of any state or federal law, including, without limitation, the Uniform
Commercial Code, or under any contract or agreement, to enforce, foreclose upon, take possession of
or sell any property or assets of the Company or any such guarantor.
“Person” means any natural person, corporation, general or limited partnership,
limited liability company, firm, trust, association, government, governmental agency or other
entity, whether acting in an individual, fiduciary or other capacity.
“Proceeding” shall mean any voluntary or involuntary insolvency, bankruptcy,
receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit
of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or
any other proceeding for the liquidation, dissolution or other winding up of a Person.
“Refinancing Senior Debt Documents” shall mean any financing documentation which
replaces the EJ Funds Loan Documents and pursuant to which the Senior Debt under the EJ Funds Loan
Documents are refinanced, as such financing documentation may be amended, restated, supplemented or
otherwise modified from time to time in compliance with this Agreement.
“Senior Debt” shall mean all obligations, liabilities and indebtedness of every nature
of the Company from time to time owed to Agent or any Senior Lender under the Senior Debt
Documents, including, without limitation, the principal amount of all debts, claims and
indebtedness, accrued and unpaid interest, all “Obligations” as such term is defined in the
Restated Credit Agreement and all fees, costs and expenses, whether primary, secondary, direct,
contingent, fixed or otherwise, heretofore, now and from time to time hereafter owing, due or
payable, whether before or after the filing of a Proceeding under the Bankruptcy Code together with
(a) any amendments, restatements, modifications, renewals or extensions thereof to the extent not
prohibited by the terms of this Agreement and (b) any interest accruing thereon after the
commencement of a Proceeding, without regard to whether or not such interest is an allowed claim.
Senior Debt shall be considered to be outstanding whenever any loan commitment under the Senior
Debt Documents is outstanding.
“Senior Debt Documents” shall mean the EJ Funds Loan Documents and, after any
refinancing of the Senior Debt under the EJ Funds Loan Documents, the Refinancing Senior Debt
Documents.
“Senior Default” shall mean any “Event of Default” under the Senior Debt Documents, or
any condition or event that, after notice or lapse of time or both, would constitute such an Event
of Default if that condition or event were not cured or removed within any applicable grace or cure
period set forth therein.
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“Senior Lenders” shall mean the holders of the Senior Debt.
“Subordinated Debt” shall mean all of the obligations of the Companies to Subordinated
Creditor evidenced by or incurred pursuant to the Subordinated Debt Documents.
“Subordinated Debt Documents” shall mean the Subordinated Note, the Subordinated
Guaranty and Security Agreement, the Subordinated Patent Security Agreement, the Subordinated
Trademark Security Agreement and all other documents, agreements and instruments now existing or
hereinafter entered into evidencing or pertaining to all or any portion of the Subordinated Debt.
“Subordinated Debt Default” shall mean a default in the payment of the Subordinated
Debt or in the performance of any term, covenant or condition contained in the Subordinated Debt
Documents or any other occurrence permitting Subordinated Creditor to accelerate the payment of all
or any portion of the Subordinated Debt.
“Subordinated Debt Default Notice” shall mean a written notice from Subordinated
Creditor or either Company to Agent pursuant to which Agent is notified of the occurrence of a
Subordinated Debt Default, which notice incorporates a reasonably detailed description of such
Subordinated Debt Default and which notice expressly states that it is a “Subordinated Debt Default
Notice” hereunder.
“Subordinated Guaranty and Security Agreement” shall mean the Guaranty and Security
Agreement dated as of May 27, 2009 among the Companies, each other grantor from time to time party
thereto and the Subordinated Creditor.
“Subordinated Patent Security Agreement” shall mean the Patent Security Agreement
dated as of May 12, 2009 by each of the Companies in favor of the Senior Creditor.
“Subordinated Security Interests” shall mean the security interest in and lien upon
all of the Collateral (as defined in the Subordinated Guaranty and Security Agreement) pursuant to
the terms of the Subordinated Guaranty and Security Agreement. The Subordinated Security Interests
are and shall at all times hereafter remain subordinated solely to the security interests of the
Senior Lenders pursuant to the Senior Loan Documents.
“Subordinated Trademark Security Agreement” shall mean the Patent Security Agreement
dated as of May 12, 2009 by the Companies in favor of the Senior Creditor.
2. Subordination.
2.1 Subordination of Subordinated Debt to Senior Debt. Each Company covenants and
agrees, and Subordinated Creditor by its acceptance of the Subordinated Debt Documents (whether
upon original issue or upon transfer or assignment) likewise covenants and agrees, notwithstanding
anything to the contrary contained in any of the Subordinated Debt Documents, that the payment of
any and all of the Subordinated Debt shall be subordinate and subject in right and time of payment,
to the extent and in the manner hereinafter set forth, to the prior indefeasible payment in full in
cash of all Senior Debt. Each holder of Senior Debt, whether such Senior Debt is now outstanding
or hereafter created, incurred, assumed or guaranteed, shall be deemed to have acquired Senior Debt
in reliance upon the provisions contained in this Agreement.
2.2 Liquidation, Dissolution, Bankruptcy. In the event of any Proceeding involving
the Company:
(a) All Senior Debt shall first be indefeasibly paid in full in cash and all commitments to
lend under the Senior Debt Documents shall be terminated before any Distribution, whether in cash,
securities or other property, shall be made to Subordinated Creditor on account of any Subordinated
Debt.
(b) Any Distribution, whether in cash, securities or other property which would otherwise, but
for the terms hereof, be payable or deliverable in respect of the Subordinated Debt shall be paid
or delivered directly to Agent (to be held and/or applied by Agent in accordance with the terms of
the Senior Debt Documents) until all Senior Debt is indefeasibly paid in full in cash and all
commitments to lend under the Senior Debt Documents shall have been terminated. Subordinated
Creditor irrevocably authorizes, empowers and directs any
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debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or other
Person having authority, to pay or otherwise deliver all such Distributions to Agent. Subordinated
Creditor also irrevocably authorizes and empowers Agent, in the name of Subordinated Creditor, to
demand, ▇▇▇ for, collect and receive any and all such Distributions.
(c) Subordinated Creditor agrees not to initiate, prosecute, or participate in any claim,
action, or other proceeding challenging the enforceability, validity, perfection, or priority of
the Senior Debt or any liens and security interests securing the Senior Debt.
(d) Subordinated Creditor agrees to execute, verify, deliver and file any proofs of claim in
respect of the Subordinated Debt requested by Agent in connection with any such Proceeding and
hereby irrevocably authorizes, empowers and appoints Agent its Agent and attorney-in-fact to (i)
execute, verify, deliver and file such proofs of claim upon the failure of Subordinated Creditor
promptly to do so prior to 30 days before the expiration of the time to file any such proof of
claim and (ii) vote such claim in any such Proceeding upon the failure of Subordinated Creditor to
do so prior to 15 days before the expiration of the time to vote any such claim; provided Agent
shall have no obligation to execute, verify, deliver, file and/or vote any such proof of claim. In
the event that Agent votes any claim in accordance with the authority granted hereby, Subordinated
Creditor shall not be entitled to change or withdraw such vote.
(e) The Senior Debt shall continue to be treated as Senior Debt and the provisions of this
Agreement shall continue to govern the relative rights and priorities of Senior Lenders and
Subordinated Creditor even if all or part of the Senior Debt or the security interests securing the
Senior Debt are subordinated, set aside, avoided, invalidated or disallowed in connection with any
such Proceeding, and this Agreement shall be reinstated if at any time any payment of any of the
Senior Debt is rescinded or must otherwise be returned by any holder of Senior Debt or any
representative of such holder.
2.3 Subordinated Debt Payment Restrictions. Notwithstanding the terms of the
Subordinated Debt Documents, each Company hereby agrees that it may not make, and Subordinated
Creditor hereby agrees that it will not accept, any Distribution with respect to the Subordinated
Debt until the Senior Debt is indefeasibly paid in full in cash and all commitments to lend under
the Senior Debt Documents have terminated, other than reimbursement of all costs and expenses
incurred by the Subordinated Creditor in connection with the negotiation, execution and delivery of
the Subordinated Debt Documents and the consummation of the transactions contemplated thereby in an
aggregate amount not to exceed $2,500 and (ii) the existence and continuation of the Subordinated
Security Interests.
2.4 Subordinated Debt Standstill Provisions. Until the Senior Debt is indefeasibly
paid in full in cash and all commitments to lend under the Senior Debt Documents shall be
terminated, Subordinated Creditor shall not, without the prior written consent of Agent, take any
Enforcement Action with respect to the Subordinated Debt. Notwithstanding the foregoing,
Subordinated Creditor may file proofs of claim against either Company in any Proceeding involving
such Company. Any Distributions or other proceeds of any Enforcement Action obtained by
Subordinated Creditor in violation of the foregoing prohibition shall in any event be held in trust
by it for the benefit of Agent and Senior Lenders and promptly paid or delivered to Agent for the
benefit of Senior Lenders in the form received until all Senior Debt is indefeasibly paid in full
in cash and all commitments to lend under the Senior Debt Documents shall have been terminated.
2.5 Incorrect Payments. If any Distribution on account of the Subordinated Debt not
permitted to be made by either Company or accepted by Subordinated Creditor under this Agreement is
made and received by Subordinated Creditor, such Distribution shall not be commingled with any of
the assets of Subordinated Creditor, shall be held in trust by Subordinated Creditor for the
benefit of Agent and Senior Lenders and shall be promptly paid over to Agent for application (in
accordance with the Senior Debt Documents ) to the payment of the Senior Debt then remaining
unpaid, until all of the Senior Debt is paid in full.
2.6 Sale, Transfer or other Disposition of Subordinated Debt.
(a) Subordinated Creditor shall not sell, assign, pledge, dispose of or otherwise transfer all
or any portion of the Subordinated Debt or any Subordinated Debt Document unless (i) the transferee
or pledgee
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thereof signs a subordination agreement on the same terms hereof or other acknowledgement of
the terms of this Agreement, in each case in form and substance satisfactory to the Agent and (ii)
such transferee or pledgee is acceptable to the Agent.
(b) Notwithstanding the foregoing, the subordination effected hereby shall survive any sale,
assignment, pledge, disposition or other transfer of all or any portion of the Subordinated Debt in
violation of the foregoing prohibition, and the terms of this Agreement shall be binding upon the
successors and assigns of Subordinated Creditor, as provided in Section 9 hereof.
2.7 Legends. Until the termination of this Agreement in accordance with Section 15
hereof, Subordinated Creditor will cause to be clearly, conspicuously and prominently inserted on
the face of the Subordinated Note and any other Subordinated Debt Document, as well as any renewals
or replacements thereof, the following legend:
“This instrument and the rights and obligations evidenced hereby are subordinate in the manner
and to the extent set forth in that certain Amended and Restated Subordination Agreement (as
amended, restated, modified or replaced from time to time, the “Subordination Agreement”)
dated as of August 17, 2009, among the ▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated September 20, 1989, Akorn, Inc.
(“Akorn”), Akorn (New Jersey), Inc. (“Akorn New Jersey” and together with Akorn,
the “Companies”, and each a “Company”), and EJ Funds, LP (“Agent”), to the
indebtedness (including interest) owed by the Companies pursuant to that certain Credit Agreement
dated as of January 9, 2009 among the Companies, General Electric Capital Corporation, as a lender
and as Agent for the lenders (“GE Capital”) and the lenders from time to time party
thereto, as such Credit Agreement has been (i) assigned by GE Capital and the other lenders a party
thereto to EJ Funds LP, as Agent and lender pursuant to an Assignment Agreement dated as of ▇▇▇▇▇
▇▇, ▇▇▇▇, (▇▇) amended pursuant to a Modification Warrant and Investor Rights Agreement dated as of
the April 13, 2009 among the Companies and EJ Funds LP, as Agent and lender, as further amended and
restated by the (iii) Amended and Restated Credit Agreement dated as of August [•], 2009 among the
Companies and EJ Funds LP, as Agent and lender, and (iv) hereafter may be amended, restated,
supplemented or otherwise modified from time to time and to indebtedness refinancing the
indebtedness under that agreement as contemplated by the Subordination Agreement; and each holder
of this instrument, by its acceptance hereof, irrevocably agrees to be bound by the provisions of
the Subordination Agreement.”
3. Modifications.
3.1 Modifications to Senior Debt Documents. Senior Lenders may at any time and from
time to time without the consent of or notice to Subordinated Creditor, without incurring liability
to Subordinated Creditor and without impairing or releasing the obligations of Subordinated
Creditor under this Agreement, change the amount of principal, interest, fees or any other amounts
payable relating to the Senior Debt, change the manner or place of payment or extend the time of
payment and/or loan commitments thereunder of or renew or alter any of the terms of the Senior
Debt, or otherwise amend or restate in any manner any agreement, note, guaranty or other instrument
evidencing or securing or otherwise relating to the Senior Debt.
3.2 Modifications to Subordinated Debt Documents. Until the Senior Debt has been
indefeasibly paid in full in cash and all lending commitments under the Senior Debt Documents have
terminated, and notwithstanding anything to the contrary contained in the Subordinated Debt
Documents, Subordinated Creditor shall not, without the prior written consent of Agent, agree to
any amendment, restatement, modification or supplement to the Subordinated Debt Documents.
4. Representations and Warranties. Subordinated Creditor hereby represents and warrants to
Agent and Senior Lenders that as of the date hereof: (a) true and accurate copies of the relevant
portions of Subordinated Creditor’s trust documents have been provided to Agent; (b) Subordinated
Creditor has the power and authority to enter into, execute, deliver and carry out the terms of
this Agreement, all of which have been duly authorized by all proper and necessary action; (c) the
execution of this Agreement by Subordinated Creditor will not violate or conflict with any
agreement binding upon Subordinated Creditor or any law, regulation or order or require any consent
or approval which has not been obtained; (d) this Agreement is the legal, valid and binding
obligation of Subordinated Creditor, enforceable against Subordinated Creditor in accordance with
its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws
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affecting the enforcement of creditors’ rights generally and by equitable principles; (e)
Subordinated Creditor is the sole owner, beneficially and of record, of the Subordinated Debt
Documents and the Subordinated Debt; and (f) other than the Subordinated Security Interests, the
Subordinated Debt is, and at all times prior to the termination of this Agreement shall remain, an
unsecured obligation of the Companies.
5. Subrogation. Subject to the indefeasible payment in full in cash of all Senior Debt and
the termination of all lending commitments under the Senior Debt Documents, Subordinated Creditor
shall be subrogated to the rights of Agent and Senior Lenders to receive Distributions with respect
to the Senior Debt until the Subordinated Debt is paid in full. Subordinated Creditor agrees that
in the event that all or any part of a payment made with respect to the Senior Debt is recovered
from the holders of the Senior Debt in a Proceeding or otherwise, any Distribution received by
Subordinated Creditor with respect to the Subordinated Debt at any time after the date of the
payment that is so recovered, whether pursuant to the right of subrogation provided for in this
Agreement or otherwise, shall be deemed to have been received by Subordinated Creditor in trust as
property of the holders of the Senior Debt and Subordinated Creditor shall forthwith deliver the
same to the Agent for the benefit of the Senior Lenders for application to the Senior Debt until
the Senior Debt is paid in full. A Distribution made pursuant to this Agreement to Agent or Senior
Lenders which otherwise would have been made to Subordinated Creditor is not, as between the
Company and Subordinated Creditor, a payment by the Company to or on account of the Senior Debt.
6. Modification. Any modification or waiver of any provision of this Agreement, or any
consent to any departure by any party from the terms hereof, shall not be effective in any event
unless the same is in writing and signed by Agent and Subordinated Creditor, and then such
modification, waiver or consent shall be effective only in the specific instance and for the
specific purpose given. Any notice to or demand on any party hereto in any event not specifically
required hereunder shall not entitle the party receiving such notice or demand to any other or
further notice or demand in the same, similar or other circumstances unless specifically required
hereunder.
7. Further Assurances. Each party to this Agreement promptly will execute and deliver such
further instruments and agreements and do such further acts and things as may be reasonably
requested in writing by any other party hereto that may be necessary or desirable in order to
effect fully the purposes of this Agreement.
8. Notices. Unless otherwise specifically provided herein, any notice delivered under this
Agreement shall be in writing, addressed to the party to be notified and sent to the address or
facsimile number indicated on the signature pages to this Agreement and may be personally served,
telecopied or sent by overnight courier service or certified or registered United States mail and
shall be deemed to have been given (a) if delivered in person, when delivered; (b) if delivered by
telecopy, on the date of transmission if transmitted on a business day before 5:00 p.m. (New York
time) or, if not, on the next succeeding business day; (c) if delivered by overnight courier, one
business day after delivery to such courier properly addressed; or (d) if by United States mail,
four business days after deposit in the United States mail, postage prepaid and properly addressed.
9. Successors and Assigns. This Agreement shall inure to the benefit of, and shall be
binding upon, the respective successors and assigns of Agent, Senior Lenders, Subordinated Creditor
and the Companies. To the extent permitted under the Senior Debt Documents, Senior Lenders may,
from time to time, without notice to Subordinated Creditor, assign or transfer any or all of the
Senior Debt or any interest therein to any Person and, notwithstanding any such assignment or
transfer, or any subsequent assignment or transfer, the Senior Debt shall, subject to the terms
hereof, be and remain Senior Debt for purposes of this Agreement, and every permitted assignee or
transferee of any of the Senior Debt or of any interest therein shall, to the extent of the
interest of such permitted assignee or transferee in the Senior Debt, be entitled to rely upon and
be the third party beneficiary of the subordination provided under this Agreement and shall be
entitled to enforce the terms and provisions hereof to the same extent as if such assignee or
transferee were initially a party hereto.
10. Relative Rights. This Agreement shall define the relative rights of Agent, Senior
Lenders and Subordinated Creditor. Nothing in this Agreement shall (a) impair, as among the
Companies, Agent and Senior Lenders and as between the Companies and Subordinated Creditor, the
obligation of the Companies with respect to the payment of the Senior Debt and the Subordinated
Debt in accordance with their respective terms or (b) affect the relative rights of Agent, Senior
Lenders or Subordinated Creditor with respect to any other creditors of the Company.
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11. Conflict. In the event of any conflict between any term, covenant or condition of this
Agreement and any term, covenant or condition of any of the Subordinated Debt Documents, the
provisions of this Agreement shall control and govern.
12. Headings. The paragraph headings used in this Agreement are for convenience only and
shall not affect the interpretation of any of the provisions hereof.
13. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
14. Severability. In the event that any provision of this Agreement is deemed to be
invalid, illegal or unenforceable by reason of the operation of any law or by reason of the
interpretation placed thereon by any court or governmental authority, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby, and the affected provision shall be modified to the minimum extent permitted by
law so as most fully to achieve the intention of this Agreement.
15. Continuation of Subordination; Termination of Agreement. This Agreement shall remain
in full force and effect until the indefeasible payment in full in cash of the Senior Debt and the
termination of all lending commitments under the Senior Debt Documents after which this Agreement
shall terminate without further action on the part of the parties hereto.
16. Applicable Law. This Agreement shall be governed by and shall be construed and
enforced in accordance with the internal laws of the State of New York, without regard to conflicts
of law principles.
17. CONSENT TO JURISDICTION. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE THE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION. EACH OF SUBORDINATED CREDITOR AND THE COMPANIES HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE. EACH OF SUBORDINATED CREDITOR AND THE COMPANIES FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF ILLINOIS. EACH OF SUBORDINATED CREDITOR AND THE COMPANIES HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE, AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
18. WAIVER OF JURY TRIAL. THE PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR
RELATING TO, THIS AGREEMENT, ANY OF THE SUBORDINATED DEBT DOCUMENTS OR ANY OF THE SENIOR DEBT
DOCUMENTS AND ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY
ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement under seal as of the
date first above written.
| AGENT: | ||||||
| Addresses for Notices: | EJ FUNDS LP | |||||
| as Lender and Agent | ||||||
EJ Funds LP |
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| ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ | ||||||
| ▇▇▇▇▇ ▇▇▇ | By: | EJ Financial Enterprises, Inc. | ||||
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Its General Partner | |||||
Attention: ▇▇▇ ▇▇▇▇▇▇ |
||||||
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
|
By: | |||||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: | President | |||||
With a copy to: |
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▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
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Signature page to Amended and Restated Subordination Agreement
| SUBORDINATED CREDITOR: | ||||||||
| Address for Notices: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST DATED SEPTEMBER 20, 1989 | |||||||
▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust Dated September 20, ▇▇▇▇ |
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By: | |||||||
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Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
Suite 250
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Title: | Trustee | ||||||
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Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
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With a copy to: |
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▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP |
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
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| COMPANIES: | ||||||||
| Address for Notices: | AKORN, INC. | |||||||
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By: | |||||||
Suite 300
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Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||
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Title: | Chief Financial Officer | ||||||
Attention: Chief Financial Officer |
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
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| AKORN (NEW JERSEY), INC. | ||||||||
| By: | ||||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||||
| Title: | Chief Financial Officer | |||||||
Signature page to Amended and Restated Subordination Agreement