|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/27/2019|
[FORM OF] INTERCOMPANY SUBORDINATION AGREEMENT
This INTERCOMPANY SUBORDINATION AGREEMENT (as amended, restated, supplemented, or otherwise modified from time to time, this “Agreement”), dated as of February 22, 2019, is entered into by and among the Obligors listed on the signature pages hereof and those additional entities that hereafter become parties hereto by joinder (collectively, jointly, and severally, the “Obligors” and each, individually, an “Obligor”), in favor of CANTOR FITZGERALD SECURITIES, in its capacity as administrative agent for each member of the Lender Group (in such capacity, together with its successors and assigns in such capacity, “Agent”), in light of the following:
WHEREAS, pursuant to that certain Senior Secured Superpriority Debtor-In-Possession Credit Agreement of even date herewith (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”) by and among the lenders party thereto as “Lenders” (each of such Lenders, together with its successors and permitted assigns, is referred to hereinafter as “Lender”), the Agent and PERNIX THERAPEUTICS HOLDINGS, INC., a Maryland corporation, a Debtor and a Debtor-in-Possession as Borrower (the “Borrower”), the Lender Group has agreed to make certain financial accommodations available to the Borrower from time to time pursuant to the terms and conditions thereof;
WHEREAS, each Obligor has made or may make certain loans or advances from time to time to one or more other Obligors; and
WHEREAS, in order to induce Agent and the Lender Group to enter into the Credit Agreement and the other Loan Documents and to induce the Lender Group to make financial accommodations to the Borrower pursuant to the Loan Documents, and in consideration thereof, and in consideration of any loans or other financial accommodations heretofore or hereafter extended by the below defined Lender Group to the Borrower pursuant to the Loan Documents, each Obligor has agreed to subordinate the indebtedness of each other Obligor owed to such Obligor to the below defined Senior Debt upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, conditions, representations, and warranties set forth herein and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged, each Obligor and Agent hereby agree as follows:
Section 1. Definitions and Construction. (a) Terms Defined in Credit Agreement. All initially capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“Agent” has the meaning specified therefor in the preamble hereto.
“Agreement” has the meaning specified therefor in the preamble hereto.
“Borrower” has the meaning specified therefor in the recitals to this Agreement.
“Credit Agreement” has the meaning specified therefor in the recitals hereto.