EXHIBIT 10.34
SEVENTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT
THIS SEVENTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT dated as
of February 28, 2003 (this "Seventh 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 and the Sixth Amendment, dated as of February 14, 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 Seventh Amendment shall have the same meanings as in
the Prior Agreement.
Section 2. Amendments.
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) March 14, 2003 and (ii) the date on which a Borrowing Condition
Failure occurs.
2.2 Section 10.1 of the Prior Agreement is hereby amended to
read as follows:
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10.1 Events of Default. It shall constitute an Event of
Default under the Credit Agreement, if (i) either Borrower (x) fails to
perform or observe any covenant, term, agreement or condition in this
Agreement, (y) is in violation of or non-compliance with any provision
of this Agreement after the expiry of any cure period specified thereto
or (z) recalls, or totally or partially suspends production of, any of
its products, and such recall or suspension of production, individually
or in the aggregate, has or results in, or could reasonably be expected
to have or result in, a Material Adverse Effect or (ii) at any time
after the Agreement Closing Date, there shall occur any event or
condition of the type described in Section 2.3(b) (Mandatory
Prepayments) of the Credit Agreement. Each Borrower specifically agrees
that, upon and at any time after the Forbearance Termination Date, all
Obligations shall be due in full and payable, and the Lender may, in
its sole discretion, without any prior notice to any Borrower, exercise
or enforce any or all of its rights and remedies under this Agreement,
the other Loan Documents, and/or applicable law, against any one or
more of the Borrowers.
Section 3. Pre-Negotiation Agreement and Documents to Remain
In Effect; Confirmation of Obligations; References. Except as expressly modified
and amended by this Seventh 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 Seventh 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 Seventh 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 Seventh
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 Seventh 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 Seventh
Amendment.
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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 Seventh Amendment sets forth
all of the covenants, promises, agreements, conditions and understandings of the
parties relating to the subject matter of this Seventh Amendment, and there are
no covenants, promises, agreements, conditions or understandings, either oral or
written, between them relating to the subject matter of this Seventh Amendment
other than as are herein set forth.
Section 7. Successors. This Seventh 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
Seventh 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 Seventh
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 Seventh 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
Seventh Amendment are to the designated Sections and other subdivisions of this
Seventh Amendment as originally executed.
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(c) The headings of this Seventh 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 Seventh Amendment and legal counsel for
each party have participated in the drafting of this Seventh 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 Seventh
Amendment.
Section 11. Execution of Counterparts. This Seventh 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 Seventh 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
Seventh 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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