WAIVER AND CONSENT TO CREDIT AGREEMENT
Exhibit 10.1
THIS WAIVER AND CONSENT TO CREDIT AGREEMENT (this “Consent”) is executed and delivered
as of this 20th day of March, 2006 among LASALLE BANK NATIONAL ASSOCIATION, as administrative agent
(the “Administrative Agent”), the financial institutions party hereto (the
“Lenders”), AKORN, INC., a Louisiana corporation (“Akorn”) and AKORN (NEW JERSEY),
Inc., an Illinois corporation (“Akorn New Jersey”).
W I T N E S S E T H :
A. The Administrative Agent, Akorn, Akorn New Jersey and the Lenders entered into a Credit
Agreement dated as of October 7, 2003 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”). Capitalized terms used but not defined herein
shall have the meanings attributed to them in the Credit Agreement.
B. Akorn desires to repay in full all remaining Related Transactions Subordinated Debt of the
Companies in an aggregate principal amount not to exceed $2,767,139.03, plus accrued and unpaid
interest thereon in an amount not to exceed $520,662.92.
C. The Companies have requested that the Administrative Agent and the Required Lenders consent
to the action to be taken by the Companies in connection with the repayment of the Related
Transactions Subordinated Debt, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
hereby agree as follows:
1. Waiver and Consent. Subject to the terms and conditions herein, the Required
Lenders hereby (i) consent to Akorn’s repayment of all of its remaining Related Transactions
Subordinated Debt in an aggregate principal amount not to exceed $2,767,139.03, plus accrued and
unpaid interest thereon in an amount not to exceed $520,662.92, and (ii) waive any Event of Default
which would, if not for the execution of this Consent, arise solely from (a) Akorn’s failure to
comply with Section 11.4(d) of the Credit Agreement resulting from the repayment of the
Related Transactions Subordinated Debt, (b) Akorn’s failure to comply with Section 11.7 of the
Credit Agreement by repaying the Related Transactions Subordinated Debt, and (c) Akorn’s failure to
comply with Section 2, Section 5 and Section 6 of each agreement collectively constituting the
Related Transactions Subordination Agreement resulting from the payment of the repayment of the
Related Transactions Subordinated Debt.
2. Representations and Warranties. To induce the Administrative Agent and the
Required Lenders to execute this Consent, each Company represents and warrants to the
Administrative Agent and the Lenders as follows: (a) each Company has all requisite power and
authority to execute, deliver and perform this Consent; (b) this Consent constitutes the legal,
valid and binding obligation of each Company, enforceable against each Company in accordance with
its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of
creditors’ rights generally and to general principles of equity; (c) the representations and
warranties in the Loan Documents are true and correct in all material respects with the same
effect
as though made on and as of the date of this Consent (except to the extent stated to relate to a
specific earlier date, in which case such representations and warranties shall be true and correct
as of such earlier date); and (d) after giving effect to this Consent, no Unmatured Event of
Default or Event of Default exists.
3. Conditions to Effectiveness. The effectiveness of this Consent is expressly
conditioned upon delivering to the Administrative Agent all of the following in form and substance
acceptable to the Administrative Agent: (a) this Consent executed by each Company, the
Administrative Agent and the Required Lenders and (b) evidence of repayment in full of all
remaining Related Transactions Subordinated Debt.
4. Affirmation. Except as specifically provided in this Consent, the execution,
delivery and effectiveness of this Consent shall not operate as a waiver or forbearance of any
Unmatured Event of Default or Event of Default or any right, power or remedy of the Administrative
Agent or any Lender under the Credit Agreement or any of the other Loan Documents, or constitute a
consent, waiver or modification with respect to any provision of the Credit Agreement or any of the
other Loan Documents, and each Company hereby fully ratifies and affirms each Loan Document to
which it is a party. Reference in any of this Consent, the Credit Agreement or any other Loan
Document to the Credit Agreement shall be a reference to the Credit Agreement as modified hereby
and as further amended, modified, restated, supplemented or extended from time to time. This
Consent shall constitute a Loan Document for purposes of the Credit Agreement and the other Loan
Documents.
5. Counterparts. This Consent may be executed in two or more counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute one
instrument. Delivery of an executed counterpart of this Consent by facsimile shall be effective as
delivery of an original counterpart.
6. Headings. The headings and captions of this Consent are for the purposes of
reference only and shall not affect the construction of, or be taken into consideration in
interpreting, this Consent.
7. Further Assurances. Each Company agrees to execute and deliver, or cause to be
executed and delivered, in form and substance satisfactory to the Administrative Agent and the
Lenders, such further documents, instruments, amendments and financing statements and to take such
further action, as may be necessary from time to time to perfect and maintain the liens and
security interests created by the Loan Documents.
8. APPLICABLE LAW. THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO ILLINOIS CHOICE OF LAW DOCTRINE.
9. Acknowledgment. Each Company hereby waives, discharges and forever releases the
Administrative Agent and each of the Lenders, and each of said Person’s employees, officers,
directors, attorneys, stockholders and successors and assigns, from and of any and all
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claims,
causes of action, allegations or assertions that either Company has or may have had at any time
through (and including) the date of this Consent, against any or all of the foregoing, regardless
of whether any such claims, causes of action, allegations or assertions are known to either Company
or whether any such claims, causes of action, allegations or assertions arose as a result of the
Administrative Agent’s or any Lender’s actions or omissions in connection with the Credit
Agreement, including any amendments or modifications thereto, or otherwise.
[signature pages follow]
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IN WITNESS WHEREOF, this Consent has been duly executed and delivered as of the day and
year first above written.
| AKORN, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Title: | CFO | |||
| AKORN (NEW JERSEY), INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Title: | CFO | |||
| LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent and Lender |
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| By: | /s/ Xxxxxxx X. X’Xxxxx | |||
| Title: | First Vice President | |||
