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EXHIBIT 10.47
INTER-CREDITOR AGREEMENT
THIS INTER-CREDITOR AGREEMENT (the "Agreement"), dated as of January 30,
1997, between SUN PHARMA GLOBAL, INC., a company registered in the British
Virgin Islands with administrative offices at ▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
("Sun"), ▇▇▇ ▇. ▇▇▇▇▇▇, INDIVIDUALLY AND AS TRUSTEE OF THE ▇▇▇ ▇. ▇▇▇▇▇▇
QUALIFIED TERMINABLE INTEREST MARITAL TRUST, U/A/D 4/8/82, whose address is
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, INDIVIDUALLY AND AS TRUSTEE OF THE ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ TRUST, U/A/D
10-27-93, whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Hagelstein")(collectively, the "Creditors") and CARACO PHARMACEUTICAL
LABORATORIES, LTD., a Michigan corporation, whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Debtor").
R E C I T A L S :
Sun has loaned Debtor (the "Sun Loan") the amount of $350,000 pursuant to
that certain Secured Promissory Note dated December 23, 1996, and in
connection therewith Debtor and Sun have entered into that certain Security
Agreement dated December 23, 1996, as to which a UCC Financing Statement was
filed with the Secretary of State of Michigan on January 8, 1997 (the "Sun Loan
Documents");
Creditors and Debtor entered into a Subordination Agreement dated December
23, 1996 (the "Subordination Agreement"), pursuant to which ▇▇▇▇▇▇ and
Hagelstein subordinated certain prior indebtedness and related security
interests in certain collateral to Sun.
Debtor had requested a loan of $200,000 from each of the Creditors for
working capital purposes. However, Sun has indicated that it is unable to
provide such a loan. As a result, Hagelstein and ▇▇▇▇▇▇ shall loan Debtor an
aggregate of $200,000 and $400,000, respectively (the "Hagelstein Loan" and the
"▇▇▇▇▇▇ Loan," respectively) pursuant to Secured Promissory Notes, Security
Agreements and UCC Financing Statements of even date herewith (the "Hagelstein
Loan Documents" and the ▇▇▇▇▇▇ Loan Documents," respectively), subject to the
condition (the "Condition") that Sun agree that (i) the Sun Loan be paid back
at the same time and on a proportionate basis to the Hagelstein Loan and the
▇▇▇▇▇▇ Loan and (ii) the security interest of Sun in the collateral underlying
the Sun Loan have equal priority to the security interests of Hagelstein and
▇▇▇▇▇▇ in the Hagelstein Loan and the ▇▇▇▇▇▇ Loan.
Sun, in order to accommodate Hagelstein and ▇▇▇▇▇▇ and assist Debtor in
raising needed financing, and acknowledging the personal benefit to Sun of the
Hagelstein Loan and the ▇▇▇▇▇▇ Loan, desires to satisfy the Condition and
thereby permit Hagelstein and ▇▇▇▇▇▇ to make the Hagelstein Loan and the ▇▇▇▇▇▇
Loan, respectively.
NOW, THEREFORE, in consideration of Hagelstein's loan to Debtor as set
forth in the Hagelstein Loan Documents and ▇▇▇▇▇▇'▇ loan to Debtor as set
forth in the ▇▇▇▇▇▇ Loan Documents,
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and in consideration of the mutual covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
1. PRE-DEFAULT NOTE REPAYMENTS. Principal payments by Debtor under the Sun
Loan, the Hagelstein Loan and the ▇▇▇▇▇▇ Loan, shall be made proportionately
until each of the loans has been paid in full, as follows:
Sun 36.84% (350/950)
▇▇▇▇▇▇ 42.11% (400/950)
Hagelstein 21.05% (200/950)
Further, if any Creditor receives payments from Debtor with respect to the Sun
Loan, the Hagelstein Loan, and the ▇▇▇▇▇▇ Loan which are not in the proportions
noted above, such Creditor shall be liable and accountable to the other
Creditors for their proportionate share, shall be deemed to have received such
payment in trust for the use and benefit of the other Creditors, shall not
commingle the same with any other funds and shall pay over and deliver such
payment to the other Creditors immediately to be applied upon the indebtedness
of Debtor to such other Creditors pursuant to the applicable loans.
2. DEFAULTS. If an event of default occurs under the terms and conditions
of either the Sun Loan, the Hagelstein Loan or the ▇▇▇▇▇▇ Loan, it will be
deemed a default under the Sun Loan, the Hagelstein Loan and the ▇▇▇▇▇▇ Loan.
3. EQUAL PRIORITY IN COLLATERAL. Creditors agree that with respect to the
collateral securing the Sun Loan, the Hagelstein Loan and the ▇▇▇▇▇▇ Loan,
notwithstanding that some of the collateral securing the Hagelstein Loan and
the ▇▇▇▇▇▇ Loan is the same collateral which is the subject of the
Subordination Agreement, and despite Sun having perfected its security interest
in the collateral pursuant to the Sun Loan earlier than Hagelstein and ▇▇▇▇▇▇
pursuant to the Hagelstein Loan and ▇▇▇▇▇▇ Loan, respectively, the security
interests of Sun, ▇▇▇▇▇▇ and Hagelstein in the collateral securing the Sun
Loan, the Hagelstein Loan and the ▇▇▇▇▇▇ Loan, respectively, will be treated
pari passu to each other and each Creditor will have an equal priority in such
collateral. However, with respect to the division of any proceeds from the
disposition of any such collateral, the proceeds will be divided
proportionately in the percentages set forth in Paragraph 1 above.
4. FUTURE ACTION. Creditors further covenant and agree that they shall
take whatever steps are necessary, from time to time, to evidence and
acknowledge and/or confirm and/or consent to the equal priority, perfection and
delivery of their security interests in the collateral underlying their
respective Sun Loan, Hagelstein Loan and ▇▇▇▇▇▇ Loan, including but not by way
of limitation, amendment to their respective financing statements filed with
respect to such collateral.
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5. NO DIVIDENDS. Debtor agrees that as long as Debtor is indebted to
Creditors under the Sun Loan, Hagelstein Loan and ▇▇▇▇▇▇ Loan, no dividends or
distributions, whether in cash, stock or other property shall be declared or
paid to any shareholder.
6. DURATION AND TERMINATION. This Agreement shall terminate only upon
payment or performance in full of all of the obligations under the Sun Loan,
Hagelstein Loan and ▇▇▇▇▇▇ Loan. Neither the death nor the bankruptcy of any
Creditor shall effect a termination hereof.
7. ASSIGNMENT. Creditors further covenant and agree that until the
payment in full of any and all of the indebtedness of Debtor to Creditors
pursuant to the Sun Loan, the Hagelstein Loan and the ▇▇▇▇▇▇ Loan, they shall
not assign their respective Sun Loan Documents, Hagelstein Loan Documents or
▇▇▇▇▇▇ Loan Documents or any of their respective interest in such loan
documents to any other person ("Transferee") without the written consent of the
other Creditors, which will not be unreasonably withheld, and the written
agreement of such Transferee to be bound by all of the terms and conditions of
this Agreement.
8. NOTICES. All notices, requests, demand and other communications
required or permitted under this Agreement or by law shall be in writing and
shall be deemed to have been duly given, made and received only when sent by
facsimile transmission (receipt confirmed) or reputable overnight delivery
service (receipt confirmed), when delivered against receipt, or when deposited
in the United States mails, certified mail, return receipt requested, postage
prepaid, addressed as set forth above.
Any addressee may alter the address to which communications are to be sent
by giving notice of such change of address in conformity with the provisions of
this section for the giving of notice.
9. ENTIRE AGREEMENT. This Agreement constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, whether express or implied, oral or
written. Neither this Agreement nor any portion or provision hereof may be
changed, waived or amended orally or in any manner other than by an agreement
in writing signed by Debtor and the Creditors.
10. SUCCESSORS AND ASSIGNS. This Agreement shall inure to and shall be
binding upon Debtor and each Creditor and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
11. GOVERNING LAW. The validity, construction and enforcement of this
Agreement shall be governed by the laws of the State of Michigan, without
regard to its conflict of laws and rules.
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12. SEVERABILITY. The provisions of this Agreement are independent of and
separable from each other. If any provision hereof shall for any reason be
held invalid or unenforceable, it is the intent of the parties that such
invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, and that this Agreement shall be construed as if
such invalid or unenforceable provision had never been contained herein.
13. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement. The signature of any party to any counterpart shall
be deemed to be a signature to, and may be appended to, any other counterpart.
This Agreement is binding on each party upon execution thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed, sealed and delivered as of the date first above written.
CREDITORS: DEBTOR:
CARACO PHARMACEUTICAL
SUN PHARMA GLOBAL, INC. LABORATORIES, LTD.
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇ By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its:_______________________ Its: President
/s/▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇, Individually and as Trustee of the
▇▇▇ ▇. ▇▇▇▇▇▇ Qualified Terminable Interest
Marital Trust, u/a/d 4/8/82
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Individually and
as Trustee of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Trust,
u/a/d 10/27/93
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