EXHIBIT (10.30)
THIRD AMENDMENT TO PRE-NEGOTIATION AGREEMENT
THIS THIRD AMENDMENT TO PRE-NEGOTIATION AGREEMENT dated as of December 30,
2002 (this "Third 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 and by the Second Amendment dated as of November 26, 2002 (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 Third 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) January 17, 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 Third 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 Third
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 Third
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 Third 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 Third 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 Third 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
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 Third Amendment sets forth all of the
covenants, promises, agreements, conditions and understandings of the parties
relating to the subject matter of this Third Amendment, and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them relating to the subject matter of this Third Amendment
other than as are herein set forth.
Section 7. Successors. This Third 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 Third 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 Third 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 Third 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 Third Amendment
are to the designated Sections and other subdivisions of this Third Amendment
as originally executed.
(c) The headings of this Third 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 Third Amendment and legal counsel for each party
have participated in the drafting of this Third 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 Third Amendment.
Section 11. Execution of Counterparts. This Third 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 Third 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 Third 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 /s/ Xxx Xxxxxxx
Telecopier No.: (000) 000-0000 -----------------------------
Telephone No.: (000) 000-0000 Name: Xxx Xxxxxxx
------------------------
Title: CFO
-----------------------
AKORN (NEW JERSEY), INC.
By /s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
------------------------
Title: CFO
-----------------------
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
-----------------------------
With a copy to Name:
------------------------
White & Case LLP Title:
000 X. Xxxxxxxx Xxxx., Xxxxx 0000 -----------------------
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
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IN WITNESS WHEREOF, the parties hereto have caused this Third 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
Attention: Chief Financial Officer -----------------------------
Telecopier No.: (000) 000-0000 Name:
Telephone No.: (000) 000-0000 ------------------------
Title:
-----------------------
AKORN (NEW JERSEY), INC.
By
-----------------------------
Name:
------------------------
Title:
-----------------------
00 Xxxxx XxXxxxx Xxxxxx THE NORTHERN TRUST COMPANY
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000 By ILLEGIBLE
Telephone No.: (000) 000-0000 -----------------------------
Name: ILLEGIBLE
------------------------
Title: VP
-----------------------
With a copy to
White & Case LLP
000 X. Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
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