EXHIBIT 10.2
TWELFTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT
THIS TWELFTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT dated as of June 30, 2003
(this "Twelfth 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, the Fourth
Amendment dated as of January 16, 2003, the Fifth Amendment dated as of January
31, 2003, the Sixth Amendment, dated as of February 14, 2003, the Seventh
Amendment dated as of February 28, 2003, the Eighth Amendment dated as of March
14, 2003, the Ninth Amendment dated as of April 4, 2003, the Tenth Amendment
dated as of May 1, 2003 and the Eleventh Amendment dated as of May 9, 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 Twelfth Amendment shall have the same meanings as in
the Prior Agreement.
Section 2. Amendments.
2.1 Section 1.1 of the Prior Agreement is hereby amended by
replacing the following defined terms to read as follows:
"Loans" shall mean the Tranche A Loans, the Tranche B Loans
and the Tranche C Loans. This definition amends and restates the
definition contained in the Credit Agreement for all purposes.
"Tranche B Loans" shall have the meaning provided in Section
8.1(a).
"Tranche B Note" shall have the meaning provided in Section
8.2(a).
2.2 Section 1.1 of the Prior Agreement is hereby amended by
inserting the following defined terms in appropriate alphabetical order:
"Cash Receipts" shall mean all cash (including, without
limitation, cash received in respect of checks, drafts, bank credits
and other similar instruments and receivables) received by any of the
Borrowers from any source.
"Tranche C Commitment" shall mean, at any time, the commitment
of the Lender to make Tranche C Loans during the Forbearance Period,
which commitment shall be equal to the greater of (a) $150,000 and (b)
110% of the "Tranche C Balance" set forth in the Budget for such time;
provided, however, that at no time shall the Tranche C Commitment
exceed $1,000,000.
"Tranche C Loans" shall have the meaning provided in Section
8.1(b).
"Tranche C Note" shall have the meaning provided in Section
8.2(b).
"Unutilized Commitment" shall mean, at any time, the
difference between (i) $2,750,000 and (ii) the aggregate principal
amount of all Tranche B Loans and Tranche C Loans then outstanding.
2.3 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) July 31, 2003 and (ii) the date on which a Borrowing Condition
Failure occurs.
2.4 Section 6.6 of the Prior Agreement is hereby amended to
read as follows:
6.6 Budget; Reconciliation.
(a) Starting July 1, 2003, on or before the first day of each
month until the Forbearance Termination Date, the Borrowers shall
deliver to the Lender a budget, in form and substance satisfactory to
the Lender, detailing the Borrowers' anticipated Cash Receipts and
disbursements for such month (broken down on a weekly basis during such
month) and setting forth the anticipated drawings and uses of Tranche C
Loans during such month (the "Budget").
(b) Starting July 9, 2003, on each Wednesday until the
Forbearance Termination Date, the Borrowers shall deliver to the Lender
a report, in form and substance satisfactory to the Lender, detailing
the Borrowers' actual Cash Receipts and disbursements (and borrowings
and repayment of Tranche C Loans) during the immediately prior week,
and showing the variance of such amounts from the
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corresponding amounts projected in the Budget for such week (the
"Weekly Reconciliation Report").
2.5 Section 7.1 of the Prior Agreement is hereby amended to
read as follows:
7.1 Payments. The Lender (a) shall, and the Borrowers hereby
irrevocably authorize the Lender to, withdraw on the Agreement Closing
Date all cash amounts on deposit (including arising from the
liquidation of any cash equivalent then on deposit and from the
transfer on such date of cash from the Lock-Box Account to the
Concentration Account) and apply same to (i) the payment of the
$200,000 fee referred to in Section 5.1(c) and (ii) thereafter repay
outstanding Tranche A Loans and (b) may in its sole discretion (but
shall be under no obligation to), and the Borrowers hereby irrevocably
authorize the Lender at any time and from time to time to, on each
Business Day after the Agreement Closing Date, withdraw all cash
amounts on deposit in the Concentration Account (including any cash
transferred thereto on such date from the Lock-Box Account) in excess
of the Minimum Balance and apply same to (i) first, to all Obligations
(other than principal of the Loans) then due and payable, (ii) second,
to the outstanding principal amount of all Tranche C Loans, (iii)
third, to the outstanding principal amount of all Tranche B Loans and
(iv) thereafter, to the outstanding principal amount of all Tranche A
Loans.
2.6 Article VIII of the Prior Agreement is hereby amended to
read as follows:
ARTICLE VIII
TRANCHE B AND TRANCHE C FACILITIES
8.1 Tranche B and Tranche C Loans.
(a) Subject to the terms and conditions of this Agreement and
the Loan Documents, the Lender agrees to make advances (each, a
"Tranche B Loan" and, collectively, the "Tranche B Loans") to the
Borrowers, from time to time during the Forbearance Period, at such
times and in such amounts as the Borrowers may request, not to exceed
in the aggregate at any one time outstanding the Tranche B Commitment
at such time. During such time, the Borrowers may from time to time
borrow, repay and reborrow under this Section 8.1(a). Each Tranche B
Loan to a Borrower shall be made on notice by such Borrower to the
Lender at its principal banking office at 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, given no later than 10:00 a.m. (Chicago time)
on the Business Day of the proposed Tranche B Loan; provided, however,
that any Tranche B Loan requested shall be in a minimum amount of
$100,000. Each such notice (a "Notice of Tranche B Borrowing") shall be
substantially in the form of Exhibit A-1, co-signed by the Consultant,
specifying therein the requested date and the amount of such Tranche B
Loan, and such other information as may be required by Lender and shall
be given in writing (by telecopy or overnight courier) or by telephone
(to the extent the Consultant is part of such telephonic notice)
confirmed immediately in writing if requested by the Lender. Lender
shall be entitled to rely upon, and shall be fully protected under this
Agreement and the Loan Documents in relying upon, any Notice of
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Tranche B Borrowing believed by Lender to be genuine and to assume that
each Person executing and delivering the same was duly authorized.
(b) Subject to the terms and conditions of this Agreement and
the Loan Documents, the Lender agrees to make advances (each, a
"Tranche C Loan" and, collectively, the "Tranche C Loans") to the
Borrowers, from time to time during the Forbearance Period, at such
times and in such amounts as the Borrowers may request, not to exceed
in the aggregate at any one time outstanding the Tranche C Commitment
at such time. During such time, the Borrowers may from time to time
borrow, repay and reborrow under this Section 8.1(b). Each Tranche C
Loan to a Borrower shall be made on notice by such Borrower to the
Lender at its principal banking office at 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, given no later than 10:00 a.m. (Chicago time)
on the Business Day of the proposed Tranche C Loan; provided, however,
that any Tranche C Loan requested shall be in a minimum amount of
$100,000. Each such notice (a "Notice of Tranche C Borrowing") shall be
substantially in the form of Exhibit A-2, co-signed by the Consultant,
specifying therein the requested date and the amount of such Tranche C
Loan, and such other information as may be required by Lender and shall
be given in writing (by telecopy or overnight courier) or by telephone
(to the extent the Consultant is part of such telephonic notice)
confirmed immediately in writing if requested by the Lender. Lender
shall be entitled to rely upon, and shall be fully protected under this
Agreement and the Loan Documents in relying upon, any Notice of Tranche
C Borrowing believed by Lender to be genuine and to assume that each
Person executing and delivering the same was duly authorized.
8.2 Tranche B and Tranche C Notes.
(a) Borrowers shall execute and deliver to the Lender a note
to evidence the Tranche B Loans, such note to be in the maximum amount
of the Tranche B Commitment, dated the date hereof and in form and
content acceptable to the Lender (the "Tranche B Note"). The Tranche B
Note shall represent the joint and several obligation of each Borrower
to pay the amount of the Tranche B Commitment or, if less, the
aggregate unpaid principal amount of all Tranche B Loans made by the
Lender to the Borrowers with interest thereon us prescribed in Section
8.5. The date and amount of each Tranche B Loan and each payment of
principal with respect thereto shall be recorded on the books and
records of the Lender, which books and records shall constitute prima
facie evidence of the accuracy of the information therein recorded. The
entire unpaid balance of the Tranche B Loans shall be immediately due
and payable on the Forbearance Termination Date.
(b) Borrowers shall execute and deliver to the Lender a note
to evidence the Tranche C Loans, such note to be in the maximum amount
of the Tranche C Commitment, dated the date hereof and in form and
content acceptable to the Lender (the "Tranche C Note"). The Tranche C
Note shall represent the joint and several obligation of each Borrower
to pay the amount of the Tranche C Commitment or, if less, the
aggregate unpaid principal amount of all Tranche C Loans made by the
Lender to the Borrowers with interest thereon as prescribed in Section
8.5. The date and amount of each Tranche C Loan and each payment of
principal with respect thereto shall be
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recorded on the books and records of the Lender, which books and
records shall constitute prima facie evidence of the accuracy of the
information therein recorded. The entire unpaid balance of the Tranche
C Loans shall be immediately due and payable on the Forbearance
Termination Date.
8.3 Designated Borrower. Each Borrower hereby irrevocably
designates Akorn as its sole agent for the purposes of (a) issuing
Notices of Tranche B Borrowings and Notices of Tranche C Borrowings and
(b) receiving notices and consents in respect of Tranche B Loans and
Tranche C Loans.
8.4 Payments; Prepayment, Commitment Reduction; Commitment
Fee.
(a) The Borrowers shall repay all outstanding principal of the
Tranche B Loans and the Tranche C Loans on the Forbearance Termination
Date.
(b) On any date on which the sum of the aggregate outstanding
principal amount of the Tranche B Loans exceeds the Tranche B Loan
Commitment then in effect, the Borrowers shall repay Tranche B Loans in
an amount equal to such excess.
(c) On any date on which the sum of the aggregate outstanding
principal amount of the Tranche C Loans exceeds the Tranche C Loan
Commitment then in effect, the Borrowers shall repay Tranche C Loans in
an amount equal to such excess.
(d) On any date on which any Borrower receives notice (which
notice, absent manifest error, shall be conclusive and binding on all
parties) from the Lender that any expenditures made by the Borrowers
during any calendar month exceed the amounts allocated for such
expenditures in the Budget for such month, the Borrowers shall repay
all outstanding Tranche C Loans and the Tranche C Commitment (and the
Borrowers' right to receive Tranche C Loans) shall be immediately
terminated.
(e) Borrowers shall have the right at any time to voluntarily
prepay all or part of the Tranche B Loans or the Tranche C Loans and
permanently reduce or terminate the Tranche B Commitment or the Tranche
C Commitment, and no prepayment fee, premium or penalty shall be
payable in connection with any such voluntary prepayment. Upon any such
prepayment and permanent reduction or termination of (i) the Tranche B
Commitment, the Tranche B Commitment (and the Borrowers' right to
receive Tranche B Loans) shall simultaneously terminate or be
permanently reduced, as the case may be, and (ii) the Tranche C
Commitment, the Tranche C Commitment (and the Borrowers' right to
receive Tranche C Loans) shall simultaneously terminate or be
permanently reduced, as the case may be.
(f) Borrowers shall pay to Lender, in arrears on the last
Business Day of each calendar month and on the Forbearance Termination
Date, a commitment fee computed at a rate equal to 0.5% per annum of
the daily average Unutilized Commitment.
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8.5 Interest on Tranche B Loans and Tranche C Loans.
(a) Borrowers shall pay interest to Lender, in arrears on the
last Business Day of each calendar month (and on any date of repayment
or prepayment of principal of Tranche B Loans), based on the amounts
outstanding from time to time under the Tranche B Loans, at a rate
equal to the sum of the Prime Rate and 3.0% per annum.
(b) Borrowers shall pay interest to Lender, in arrears on the
last Business Day of each calendar month (and on any date of repayment
or prepayment of principal of Tranche C Loans), based on the amounts
outstanding from time to time under the Tranche C Loans, at a rate
equal to the sum of the Prime Rate and 3.0% per annum.
(c) If any payment on the Tranche B Loans or the Tranche C
Loans becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(d) All computations of interest and fees shall be made by the
Lender on the basis of a three hundred sixty (360) day year, in each
case for the actual number of days occurring in the period for which
such interest is payable. The Prime Rate shall be determined each day
based upon the Prime Rate as in effect each day. Each determination by
the Lender of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error or bad faith.
(e) Notwithstanding anything to the contrary set forth in this
Section 8.5, if, at any time until payment in full of all of the
Obligations, the rate of interest payable in respect of the Tranche B
Loans or the Tranche C Loans hereunder exceeds the highest rate of
interest permissible under any law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto
(the "Maximum Lawful Rate"), then in such event and so long as the
Maximum Lawful Rate would be so exceeded, the rate of interest payable
in respect of the Tranche B Loans or Tranche C Loans, as the case may
be, hereunder shall be equal to the Maximum Lawful Rate; provided,
however, that if at any time thereafter the rate of interest payable
hereunder is less than the Maximum Lawful Rate, Borrowers shall
continue to pay interest hereunder at the Maximum Lawful Rate until
such time as the total interest received by Lender from the making of
Tranche B Loans or Tranche C Loans, as the case may be, hereunder is
equal to the total interest which would have been received had the
interest rate payable hereunder been (but for the operation of this
paragraph) the interest rate payable since the Agreement Closing Date
as otherwise provided in this Agreement. Thereafter, the interest rate
payable hereunder shall be the rate of interest provided in Sections
8.5(a) through (d) of this Agreement, unless and until the rate of
interest again exceeds the Maximum Lawful Rate, in which event this
paragraph shall again apply. In no event shall the total interest
received by Lender pursuant to the terms hereof exceed the amount which
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate. In the
event the Maximum Lawful Rate is calculated pursuant to this paragraph,
such interest shall be calculated at a daily rate equal to the Maximum
Lawful Rate divided by the number of days in the year in which such
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calculation is made. In the event that a court of competent
jurisdiction, notwithstanding the provisions of this Section 8.5(c),
shall make a final determination that Lender has received interest
hereunder or under any of the other Loan Documents in excess of the
Maximum Lawful Rate, Lender shall, to the extent permitted by
applicable law, promptly apply such excess first to any interest due
and not yet paid hereunder in respect of the Tranche B Loans or Tranche
C Loans, as the case may be, then to the outstanding principal of the
Tranche B Loans or Tranche C Loans, as the case may be, then to Fees
and any other unpaid Obligations and thereafter shall refund any excess
to Borrowers or as a court of competent jurisdiction may otherwise
order.
8.6 Application and Allocation of Payments. Lender is
authorized to, and at its option may, make or cause to be made Tranche
B Loans and/or Tranche C Loans on behalf of the Borrowers for payment
of all Fees, expenses, Charges, costs, principal, interest, or other
Obligations owing by any Borrower under this Agreement or any of the
other Loan Documents if and to the extent any such Borrower fails to
promptly pay any such amounts as and when due. At Lender's option and
to the extent permitted by applicable law, any advances so made shall
be deemed Tranche B Loans or Tranche C Loans, as the case may be,
constituting part of the Tranche B Loans or Tranche C Loans, as the
case may be, hereunder. Borrowers hereby irrevocably waive the right to
direct the application of any and all payments at any time or times
hereafter received from or on behalf of any such Borrower, and each
Borrower hereby irrevocably agrees that Lender shall have the
continuing exclusive right to apply any and all such payments against
the then due and payable Obligations of Borrowers and in repayment of
the Loans as Lender may deem advisable notwithstanding any previous
entry by Lender upon the Loan Account or any other books and records.
8.7 Conditions Precedent to Tranche B and Tranche C
Borrowings. Notwithstanding any other provision of this Agreement and
without affecting in any manner the rights of Lender hereunder,
Borrowers shall have no rights under this Agreement (but shall have all
applicable obligations hereunder), and Lender shall not be obligated to
make any Tranche B Loan or Tranche C Loan, or to take, fulfill, or
perform any other action hereunder, until the following conditions have
been satisfied, in Lender's sole discretion, or waived in writing by
Lender:
(a) Accuracy of Representations and Warranties. All of each
Borrowers' representations and warranties contained herein or in any of
the other Loan Documents shall be true and correct on and as of the
Agreement Closing Date and the date on which each such Tranche B Loan
or Tranche C Loan, as the case may be, is made as though made on and as
of such date, except, to the extent that any such representation or
warranty expressly relates to an earlier date.
(b) No Material Adverse Change. Except for the Existing
Events, no Material Adverse Effect shall have occurred since the
Agreement Closing Date (including, without limitation, in respect of
events or circumstances that commenced prior to the Agreement Closing
Date).
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(c) No Default. Except for the Existing Events, no event shall
have occurred and be continuing, or would result from the making of any
Tranche B Loan or Tranche C Loan, which constitutes or would constitute
a Default or an Event of Default.
The request and acceptance by any Borrower of the proceeds of any
Tranche B Loan or Tranche C Loan shall be deemed to constitute, as of
the date of such request or acceptance, a representation and warranty
by the Borrowers to the Lender that the conditions in this Section 8.7
have been satisfied.
2.7 Section 11.18 of the Prior Agreement is hereby amended to
read as follows:
11.18 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS AND THE
LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT
ANY OF THEM MAY HAVE TO A TRIAL BY JURY OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY DOCUMENTS OR INSTRUMENTS EXECUTED AND DELIVERED
IN CONNECTION HEREWITH (INCLUDING WITHOUT LIMITATION, THE TRANCHE B
NOTE AND THE TRANCHE C NOTE), OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY
RELATING HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE LENDER TO ENTER INTO THIS AGREEMENT.
Section 3. Pre-Negotiation Agreement and Documents to Remain
In Effect; Confirmation of Obligations; References. Except as expressly modified
and amended by this Twelfth 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 Twelfth 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 Twelfth 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 Twelfth
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 Twelfth 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 and 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
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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 Twelfth 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.
Section 6. Entire Agreement. This Twelfth Amendment sets
forth all of the covenants, promises, agreements, conditions and understandings
of the parties relating to the subject matter of this Twelfth Amendment, and
there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between them relating to the subject matter of this
Twelfth Amendment other than as are herein set forth.
Section 7. Successors. This Twelfth 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
Twelfth 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 Twelfth
Amendment may be amended, changed, modified, altered or terminated only by a
written instrument executed by all of the parties hereto:
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Section 10. Construction.
(a) The words "hereof," "herein," and "hereunder," and other
words of a similar import refer to this Twelfth 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
Twelfth Amendment are to the designated Sections and other subdivisions
of this Twelfth Amendment as originally executed.
(c) The headings of this Twelfth 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 Twelfth Amendment and legal counsel for
each party have participated in the drafting of this Twelfth 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 Twelfth Amendment.
Section 11. Execution of Counterparts. This Twelfth 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 Twelfth 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
Twelfth 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 By /s/ Xxxxxx X. Xxxxxxx
Attention: Chief Financial Officer ----------------------
Telecopier No.: (000) 000-0000 Name: Xxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 Title: President and CEO
AKORN (NEW JERSEY), INC.
By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President and CEO
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 THE NORTHERN TRUST COMPANY
Attention: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000 By /s/ X. X. Xxxxxx
-----------------
Name: X. X. Xxxxxx
With a copy to Title: Senior V.P.
White & Case LLP
000 X. Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
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TRANCHE C NOTE
$1,000,000 June 30, 0000
Xxxxxxx, Xxxxxxxx
FOR VALUE RECEIVED, the undersigned, AKORN, INC., a Louisiana
corporation ("Akorn"), and AKORN (NEW JERSEY), INC., an Illinois corporation
("Akorn NJ"), jointly and severally, promise to pay to the order of THE NORTHERN
TRUST COMPANY (the "Lender"') on the Forbearance Termination Date, the principal
amount of ONE MILLION DOLLARS ($1,000,000), or the amount outstanding as
endorsed on the grid attached to this Tranche C Note or recorded in the Lender's
books and records, if the Lender is the holder hereof. Such endorsement or
recording by the Lender shall, absent manifest error, be rebuttably presumptive
evidence of the principal balance due on this Tranche C Note.
This Tranche C Note evidences indebtedness incurred under that
certain Pre-Negotiation Agreement, dated as of September 20, 2002 (as the same
may be subsequently amended, restated, supplemented or otherwise modified, the
"Pre-Negotiation Agreement"), among Akorn, Akorn NJ and the Lender, to which
Pre-Negotiation Agreement reference is hereby made for a statement of its terms
and provisions. All capitalized terms used but not otherwise defined herein
shall have the meanings assigned to them in the Pre-Negotiation Agreement.
Unless or until this Tranche C Note shall sooner become due
and payable, whether by acceleration or otherwise, the Borrowers may from time
to time borrow, repay and reborrow in accordance with the terms and conditions
of the Pre-Negotiation Agreement. The unpaid principal amount of this Tranche C
Note from time to time outstanding shall bear interest from the date of this
Tranche C Note at the rate per annum set forth in the Pre-Negotiation Agreement.
Accrued interest on this Tranche C Note shall be payable in accordance with the
terms of the Pre-Negotiation Agreement. After maturity, whether by acceleration
or otherwise, accrued interest shall be payable on demand. Interest on this
Tranche C Note shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days. Payments of both principal and interest
are to be made in immediately available funds in lawful money of the United
States of America.
Subject to the terms and conditions of the Pre-Negotiation
Agreement, the undersigned agree to pay all reasonable expenses, including
reasonable attorneys' fees and legal expenses, incurred by the holder of this
Tranche C Note in attempting to collect any amounts payable hereunder. The
undersigned irrevocably waive presentment, protest, demand and notice of any
kind in connection herewith.
This Tranche C Note is made under and governed by the internal
laws of the State of Illinois (without regard to conflict of laws provisions
thereof), and shall be deemed to have been executed in the State of Illinois.
AKORN, INC.,
a Louisiana corporation
By: /s/ Xxx Xxxxxxx
----------------
Name: Xxx Xxxxxxx
Title: C.F.O.
AKORN (NEW JERSEY), INC.,
an Illinois corporation
By: /s/ Xxx Xxxxxxx
----------------
Name: Xxx Xxxxxxx
Title: C.F.O.
-2-
TRANCHE C LOANS AND PRINCIPAL REPAYMENTS
Type of Loan Amount of Unpaid
Amount of & Applicable Principal Principal Notation
Date Loan Made Interest Rate Repaid Balance Made By
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-3-
