EXHIBIT 10.32
FIFTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT
THIS FIFTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT dated as of
January 31, 2003 (this "Fifth Amendment"), by and among AKORN, INC., a Louisiana
corporation ("Akorn"), AKORN (NEW JERSEY), INC., an Illinois corporation ("Akorn
NJ") (Akorn and Akorn NJ being sometimes referred to herein individually as a
"Borrower" and collectively as the "Borrowers"), and THE NORTHERN TRUST COMPANY,
an Illinois banking corporation (the "Lender");
WITNESSETH:
WHEREAS, the parties heretofore entered into the
Pre-Negotiation Agreement dated as of September 20, 2002, as amended by the
First Amendment dated as of October 18, 2002, the Second Amendment dated as of
November 26, 2002, the Third Amendment dated as of December 30, 2002 and the
Fourth Amendment dated as of January 16, 2003 (the "Prior Agreement"); and
WHEREAS, the Borrowers have requested an amendment to Section
4.1 of the Prior Agreement;
WHEREAS, the Lender has agreed to the Borrowers' request, but
only on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the
covenants, agreements and acknowledgments contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Section 1. Defined Terms. All capitalized terms used and not
otherwise defined in this Fifth Amendment shall have the same meanings as in the
Prior Agreement.
Section 2. Amendment.
2.1 Section 4.1 of the Prior Agreement is hereby amended to
read as follows:
4.1 Forbearance Period. Subject to compliance by each Borrower
with each of the terms and conditions of this Agreement, and without waiving the
Existing Events, the Lender hereby agrees to forbear from enforcing its rights
or remedies pursuant to the Loan Documents and applicable law (including,
without limitation, to make a demand for payment as a result of the Payment
Default) as a result of the Existing Events from the Agreement Closing Date
until the earlier to occur of the following (as the case may be, the
"Forbearance Termination Date"): (i) February 14, 2003 and (ii) the date on
which a Borrowing Condition Failure occurs.
Section 3. Pre-Negotiation Agreement and Documents to Remain
In Effect; Confirmation of Obligations; References. Except as expressly modified
and amended by this Fifth Amendment, the Prior Agreement shall remain in full
force and effect as originally
executed and delivered by the parties. In order to induce the Lender to enter
into this Fifth Amendment, the Borrowers hereby (i) confirm and reaffirm all of
their obligations under the Documents, as modified and amended as described
above and under the Pre-Negotiation Agreement, as modified and amended as
described above; (ii) acknowledge and agree that the Lender, by entering into
this Fifth Amendment, does not waive any existing or future default or event of
default under any of the Documents or the Prior Agreement, or any rights, powers
or remedies under any of the Documents or the Pre-Negotiation Agreement; (iii)
acknowledge and agree that the Lender has not heretofore waived any Borrowing
Condition Failure, or any rights or remedies under any of the Documents or the
Prior Agreement; and (iv) acknowledge that they do not have any defense, set-off
or counterclaim to the payment or performance of any of their obligations under
the Documents or the Prior Agreement, as amended hereby. All references to the
Prior Agreement shall henceforth be deemed to refer to the Prior Agreement as
modified by this Fifth Amendment and as hereafter modified by any amendment,
modification or supplement thereto.
Section 4. Confirmation of Certifications, Representations and
Warranties. In order to induce the Lender to enter into this Fifth Amendment the
Borrowers hereby certify, represent and warrant to the Lender that, except as
otherwise disclosed to the Lender in writing prior to the date hereof, including
in the Pre-Negotiation Agreement arid in the Exhibits and Schedules attached
thereto and/or in documents submitted to the Lender prior to the date hereof
(including, but not limited to, any and all financial statements and reports,
budgets, statements of cash flow and governmental reports and filings)
(collectively referred to herein as "Disclosures"), all certifications,
representations and warranties contained in the Documents and in the
Pre-Negotiation Agreement and in all certificates heretofore delivered to the
Lender are true and correct as of the date hereof in all material respects, and,
subject to such Disclosures, all such certifications, representations and
warranties are hereby remade and made to speak as of the date of this Fifth
Amendment.
Section 5. RELEASE. EACH BORROWER ON BEHALF OF ITSELF AND ITS
AFFILIATES, SUBSIDIARIES, SUCCESSORS, ASSIGNS, PRINCIPALS, SHAREHOLDERS,
BENEFICIARIES, OFFICERS, MANAGERS, DIRECTORS, AGENTS, REPRESENTATIVES, ADVISORS,
EMPLOYEES AND ATTORNEYS, HEREBY JOINTLY AND SEVERALLY RELEASES, WAIVES AND
FOREVER DISCHARGES EACH OF THE LENDER AND ITS AFFILIATES, SUBSIDIARIES,
SUCCESSORS, ASSIGNS, PRINCIPALS, SHAREHOLDERS, BENEFICIARIES, OFFICERS,
MANAGERS, DIRECTORS, AGENTS, REPRESENTATIVES, ADVISORS, EMPLOYEES AND ATTORNEYS
OF, FROM, AND WITH RESPECT TO ANY AND ALL MANNER OF ACTIONS, CAUSES OF ACTIONS,
SUITS, DISPUTES, CLAIMS, COUNTERCLAIMS AND/OR LIABILITIES, CROSS CLAIMS,
DEFENSES THAT ARE KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, PAST OR PRESENT,
ASSERTED OR UNASSERTED, CONTINGENT OR LIQUIDATED, WHETHER OR NOT WELL FOUNDED IN
FACT OR LAW, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, AT LAW OR IN EQUITY,
BASED UPON, RELATING TO OR ARISING OUT OF ANY AND ALL TRANSACTIONS,
RELATIONSHIPS OR DEALINGS WITH OR LOANS MADE TO THE BORROWERS PURSUANT TO THE
LOAN DOCUMENTS AND/OR THE PRIOR AGREEMENT PRIOR TO THE EFFECTIVENESS HEREOF.
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Section 6. Entire Agreement. This Fifth Amendment sets forth
all of the covenants, promises, agreements, conditions and understandings of the
parties relating to the subject matter of this Fifth Amendment, and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them relating to the subject matter of this Fifth Amendment
other than as are herein set forth.
Section 7. Successors. This Fifth Amendment shall inure to the
benefit of and shall be binding upon the parties and their respective
successors, assigns and legal representatives.
Section 8. Severability. In the event any provision of this
Fifth Amendment shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
Section 9. Amendments, Changes and Modifications. This Fifth
Amendment may be amended, changed, modified, altered or terminated only by a
written instrument executed by all of the parties hereto:
Section 10. Construction.
(a) The words "hereof," "herein," and "hereunder," and other
words of a similar import refer to this Fifth Amendment as a whole and not to
the individual Sections in which such terms are used.
(b) References to Sections and other subdivisions of this
Fifth Amendment are to the designated Sections and other subdivisions of this
Fifth Amendment as originally executed.
(c) The headings of this Fifth Amendment are for convenience
only and shall not define or limit the provisions hereof.
(d) Where the context so requires, words used in singular
shall include the plural and vice versa, and words of one gender shall include
all other genders.
(e) Each party to this Fifth Amendment and legal counsel for
each party have participated in the drafting of this Fifth Amendment, and
accordingly the general rule of construction to the effect that any ambiguities
in a contract are to be resolved against the party drafting the contract shall
not be employed in the construction and interpretation of this Fifth Amendment.
Section 11. Execution of Counterparts. This Fifth Amendment
may be simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
Section 12. Governing Law. This Fifth Amendment shall be
governed by and be construed and enforced in accordance with the laws of the
State of Illinois.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
Address for Notices: AKORN, INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Chief Financial Officer By
Telecopier No.: (000) 000-0000 ---------------------------------
Telephone No.: (000) 000-0000 Name:
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Title:
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AKORN (NEW JERSEY), INC.
By
--------------------------------
00 Xxxxx XxXxxxx Xxxxxx Name:
Xxxxxxx, Xxxxxxxx 00000 --------------------------
Attention: Xxxx Xxxxxxxx Title:
Telecopier No.: (000) 000-0000 -------------------------
Telephone No.: (000) 000-0000
THE NORTHERN TRUST COMPANY
With a copy to
White & Case LLP
000 X. Xxxxxxxx Xxxx., Xxxxx 0000 By
Xxxxx, XX 00000 --------------------------------
Attention: Xxxx X. Xxxxxxxxxx, Esq. Name:
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Title:
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