OMNIBUS AMENDMENT AND CONSENT
EXHIBIT
10.1
OMNIBUS
AMENDMENT AND CONSENT EFFECTIVE AS OF September 22, 2006 (this “Omnibus
Amendment and Consent”)
by and
among Acura Pharmaceuticals, Inc. (the “Company”),
and
Acura Pharmaceutical Technologies, Inc. and the following lenders (“Lenders”):
▇▇▇▇▇
Partners III, L.P. (as agent for the other lenders (“Agent”)
and as
a lender itself), ▇▇▇▇▇ Partners International, III, L.P., ▇▇▇▇▇ Employee Fund
III, L.P., Care Capital Offshore Investments II, LP, Care Capital Investments
II, LP, Essex Woodlands Health Ventures V, L.P., ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and the following persons with
respect to Sections 5, 6, 7, and 8: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(“Additional
▇▇▇▇▇▇ Holders”).
Capitalized
terms used herein and not defined herein have the meanings set forth in the
Subordination Agreement dated as of January 31, 2006 among the Lenders, the
Company and others (the “Subordination
Agreement”).
R
E C I T A L S
WHEREAS
the
Company and one or more Lenders have entered into the June 2005 Loan Agreement,
the September 2005 Loan Agreement, the November 2005 Loan Agreement and the
January 2006 Loan Agreement (collectively, the “Loan
Agreements”)
and
such other agreements, notes and instruments executed in connection with such
loan agreements (collectively, the “Loan
Documents”);
and
WHEREAS,
the
Company and certain Lenders and the Additional ▇▇▇▇▇▇ Holders are parties to
the
▇▇▇▇▇▇ Note (as defined in the Subordination Agreement); and
WHEREAS,
the
loans extended pursuant to the Loan Agreements are due to mature on October
1,
2006 (the “Original
Maturity Date”);
and
WHEREAS,
the
Company and the Lenders wish to extend the Original Maturity Date.
NOW,
THEREFORE,
in
consideration of the mutual covenants herein contained, the parties mutually
agree as follows:
AMENDMENT
AND CONSENT
1.
Amendments:
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(a)
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Each
of the June 2005 Loan Agreement, the September 2005 Loan Agreement,
the
November 2005 Loan Agreement and the January 2006 Loan Agreement
is
amended by replacing “October 1, 2006” in Section 2.1 thereof with
“November 1, 2006”.
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(b)
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Each
of the June 2005 Notes, the September 2005 Notes, the November 2005
Notes
and the January 2006 Notes (and each of the forms of such Notes attached
to the June 2005 Loan Agreement, the September 2005 Loan Agreement,
the
November 2005 Loan Agreement and the January 2006 Loan Agreement)
is
amended by:
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(i)
replacing the words October 1, 2006, wherever they appear therein with “November
1, 2006”; and
(ii)
appending the following additional section to such note:
References
to Loan Agreement.
References to the Loan Agreement in this Note shall mean references to the
Loan
Agreement, as amended, and as the same may be further amended, supplemented
or
modified from time to time.
| (c) |
In
the event a Replacement Note (as hereinafter defined) is issued pursuant
to Section 4 hereof, then in such Replacement Note the words “Secured
Promissory Note” shall be replaced with “Amended and Restated Promissory
Secured Note” and the following section shall be appended thereto:
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Amended
and Restated Secured Promissory Note.
This Amended and Restated Secured Promissory Note issued by the Company in
favor
of the Payee amends and restates in its entirety, and is issued by the Company
in replacement of and substitution for a Secured Promissory Note of identical
principal amount issued to Payee pursuant to the Loan Agreement(the “Original
Note”). The Company and the Payee acknowledge and agree that upon the execution
delivery of this Amended and Restated Secured Promissory Note, the Original
Note
shall be null and void and of no further legal force or effect.
The
form
of such Replacement Note shall be also be attached to the applicable Loan
Agreement
as an acceptable form of note to be issued pursuant thereto.
2. References
to Loan Documents:
Any
reference to any Loan Document in any other Loan Document shall mean the Loan
Document, as amended hereby.
3.
Attachment
to All Notes:
The
Lenders covenant to give a copy of this Omnibus Amendment and Consent to any
purchaser of the June 2005 Notes, the September 2005 Notes, the November 2005
Notes or the January 2006 Notes prior to the actual purchase and to attach
a
copy of this Omnibus Amendment and Consent to any of such notes where the
undersigned is the named payee or holder.
4. Amended
and Restated Notes.
Upon
request of the Company, each Lender agrees to deliver to the Company any of
the
June 2005 Notes, the September 2005 Notes, the November 2005 Notes or the
January 2006 Notes issued to them, in exchange for an amended and restated
Note
(the “Replacement
Note”)
incorporating the amendments set forth in this Omnibus Amendment and Consent.
5. Subordination
Agreement. Each
Lender and Additional ▇▇▇▇▇▇ Holder agrees to the provisions of this Omnibus
Amendment and Consent, including without limitation, to the amendments to the
June 2005, September 2005 Notes, the November 2005 Notes and the January 2006
Notes and acknowledges that the Subordination Agreement shall remain in full
force and effect.
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6. Notes
and Agreements Not Assigned. The
undersigned Lenders and Additional ▇▇▇▇▇▇ Holders acknowledge that they have
not
transferred, conveyed or assigned any of the ▇▇▇▇▇▇ Note, the June 2005 Notes,
the September 2005 Notes, the November 2005 Notes or the January 2006 Notes
issued to them and the undersigned Lenders and Additional ▇▇▇▇▇▇ Holders
acknowledge that they have not assigned any rights under the Loan Documents
or
under the Subordination Agreement.
7.
Counterparts:
This
Omnibus Amendment and Consent may be executed in one or more counterparts and
by
different parties hereto in separate counterparts, including by facsimile,
each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
8.
Governing
Law:
THIS
OMNIBUS AMENDMENT AND CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
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IN
WITNESS WHEREOF, each of the Parties have caused this Omnibus Amendment and
Consent to be duly executed and delivered as of the day and year first above
written.
| ACURA
PHARMACEUTICALS, INC.
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Sr. Vice President and CFO
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ACURA
PHARMACEUTICAL TECHNOLOGIES
, INC.
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Sr. Vice President and CFO
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LENDER
AND AGENT:
▇▇▇▇▇
PARTNERS III, L.P.
By:
Claudius, L.L.C., General Partner
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇.
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
By:
▇▇▇▇▇ ▇▇▇▇▇▇
Its:
General Partner
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LENDER:
CARE
CAPITAL OFFSHORE INVESTMENTS II, LP
By:
Care Capital II, LLC, as general partner
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:
Authorized Signatory
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LENDER:
▇▇▇▇▇
PARTNERS INTERNATIONAL, III, L.P.
By:
Claudius, L.L.C., General Partner
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
By:
▇▇▇▇▇ ▇▇▇▇▇▇
Its:
General Partner
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LENDER:
CARE
CAPITAL INVESTMENTS II, LP
By:
Care Capital II, LLC, as general partner
▇▇
▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Authorized Signatory
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LENDER:
▇▇▇▇▇
EMPLOYEE FUND III, L.P.
By:
Wesson Enterprises, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:
General Partner
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LENDER:
ESSEX
WOODLANDS HEALTH
VENTURES
V, L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its:
Managing Director
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LENDER:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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LENDER:
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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LENDER:
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
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LENDER:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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ADDITIONAL
▇▇▇▇▇▇ HOLDER:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ LLC
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇▇ Stirglitz
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ADDITIONAL
▇▇▇▇▇▇ HOLDER:
▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/
▇▇▇▇ ▇▇▇▇▇
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