Execution Copy
WAIVER AND CONSENT TO CREDIT AGREEMENT
THIS WAIVER AND CONSENT TO CREDIT
AGREEMENT (this “ Waiver and Consent ”) is
executed and delivered as of this 14th day of November, 2007, by
and 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 intends to
(i) enter into that certain Securities Purchase Agreement
dated as of November 14, 2007 (the “ Purchase
Agreement ”, a copy of which is attached hereto as
Exhibit A ) with the investors named therein pursuant
to which Akorn will issue Capital Securities in Akorn as
contemplated thereunder (the foregoing referred to herein in as the
“ Transaction ”).
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
Transaction with respect to the Credit Agreement, 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 (a) consent to Akorn’s the
issuance of the Capital Securities in accordance with the Purchase
Agreement and (b) waive any Event of Default which, if not for
the execution of this Waiver and Consent, would arise under
Sections 13.1.1, 13.1.5(a) or 13.1.5(b) of the Credit
Agreement resulting solely from (A) the failure or inability
to reduce the Revolving Commitment Amount in violation of
Section 6.1.2 of the Credit Agreement and (B) the
Company’s issuance of Capital Securities in violation of
Sections 11.5(b) and 11.10 of the Credit Agreement;
provided , that the foregoing clauses (a) and
(b) are expressly conditioned upon the satisfaction of the
conditions to effectiveness set forth in Section 3
hereof.
2. Representations and
Warranties . To induce the Administrative Agent and the
Lenders to execute this Waiver and Consent, each Company jointly
and severally represents and warrants to the Administrative Agent
and the Lenders as follows:
(a) Each Company is in good standing
under the laws of its jurisdiction of formation and in each
jurisdiction where, because of the nature of its activities or
properties, such qualification is required, except for such
jurisdictions where the failure to so qualify would not have a
Material Adverse Effect.
(b) Each Company is duly authorized
to execute and deliver this Waiver and Consent and is duly
authorized to perform its obligations hereunder.
(c) The execution, delivery and
performance by the Companies of this Waiver and Consent do not and
will not (i) require any consent or approval of any
governmental agency or authority (other than any consent or
approval which has been obtained and is in full force and effect),
(ii) conflict with (A) any provision of law, (B) the
charter, by-laws or other organizational documents of any Company
or (C) any agreement, indenture, instrument or other document,
or any judgment, order or decree, which is binding upon any Company
or any of its properties or (ii
