EXHIBIT 10.38
ELEVENTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT
THIS ELEVENTH AMENDMENT TO PRE-NEGOTIATION AGREEMENT dated as of May 9, 2003
(this "Eleventh 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, and the Tenth Amendment dated as of May 1,
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 Eleventh 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 to
insert the following defined terms in appropriate alphabetical order:
"Investment Bank" shall have the meaning provided in Section
6.13.
"Investment Bank Agreement" shall have the meaning provided in
Section 6.13, as the same may be amended, modified or supplemented from
time to time with the consent of the Lender (which consent may be
granted or withheld in the Lender's sole discretion).
2.2 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) June 30, 2003 and (ii) the date on which a Borrowing Condition
Failure occurs.
2.3 Section 6.13 of the Prior Agreement is hereby amended to
read as follows:
6.13 Investment Bank. The Borrowers shall, no later than May
9, 2003, retain an investment bank of recognized national standing (the
"Investment Bank") to explore all viable options to maximize value,
including but not limited to soliciting offers for investment in,
and/or offers to purchase the assets of, any of the Borrowers, pursuant
to an agreement (the "Investment Bank Agreement") acceptable to the
Lender in its sole discretion setting forth the basis on which the
Investment Bank will be retained. Following the execution thereof, the
Borrowers shall not amend, modify, supplement or terminate the
Investment Bank Agreement without the prior written consent of the
Lender (which consent may be granted or withheld in the Lender's sole
discretion).
2.2 Section 10.1 of the Prior Agreement is hereby amended to
read as follows:
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, (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 or (iii) at any time following the effectiveness of
the Investment Bank Agreement, any Borrower or the Investment Bank
shall breach any of its respective obligations under the Investment
Bank Agreement, or the Investment Bank Agreement shall be amended,
modified, supplemented or terminated without the Lender's consent
(which consent may be granted or withheld in the Lender's sole
discretion). 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 Eleventh 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 Eleventh
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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 Eleventh
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 Eleventh 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 Eleventh 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 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 Eleventh
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 Eleventh Amendment sets
forth all of the covenants, promises, agreements, conditions and understandings
of the parties relating to the subject matter of this Eleventh Amendment, and
there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between them relating to the subject matter of this
Eleventh Amendment other than as are herein set forth.
Section 7. Successors. This Eleventh 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
Eleventh 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
Eleventh 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 Eleventh 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
Eleventh Amendment are to the designated Sections and other subdivisions of this
Eleventh Amendment as originally executed.
(c) The headings of this Eleventh 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 Eleventh Amendment and legal counsel
for each party have participated in the drafting of this Eleventh 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 Eleventh
Amendment.
Section 11. Execution of Counterparts. This Eleventh 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 Eleventh 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
Eleventh Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first written above.
Address for Notices: AKORN, INC.
2500 Millbrook Drive
Buffalo Grove, IL 60089
Attention: Chief Financial Officer By
Telecopier No.: (847) 279-6191 ---------------------------------
Telephone No.: (847) 279-6100 Name:
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Title:
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AKORN (NEW JERSEY), INC.
By
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50 South LaSalle Street Name:
Chicago, Illinois 60675 --------------------------
Attention: Olga Georgiev Title:
Telecopier No.: (312) 630-6105 -------------------------
Telephone No.: (312) 444-2438
THE NORTHERN TRUST COMPANY
With a copy to
White & Case LLP
200 S. Biscayne Blvd., Suite 4900 By
Miami, FL 33131 --------------------------------
Attention: John K. Cunningham, Esq. Name:
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Title:
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