Exhibit 10.1
WAIVER AND CONSENT TO CREDIT
AGREEMENT
THIS WAIVER AND
CONSENT TO CREDIT AGREEMENT (this “ Consent ”)
is executed and delivered as of this 13th day of May, 2005 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 enter into that certain Settlement Agreement dated as of
May 16, 2005 by and between Akorn and NeoPharm, Inc.
(“NeoPharm”) pursuant to which Akorn would be required
to make a payment to NeoPharm in the amount of $2,500,000 (the
“ NeoPharm Settlement Payment ”) as
consideration for, among other things, repayment in full and
termination of the NeoPharm Subordinated Debt.
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 (i) consent to
Akorn’s execution of and performance under the Settlement
Agreement 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 payment of NeoPharm Settlement Payment, (b) Akorn’s
failure to comply with Section 11.7 of the Credit Agreement by
entering into the Settlement Agreement and NeoPharm, and
(c) Akorn’s failure to comply with Section 2,
Section 5 and Section 6 of the NeoPharm Subordination
Agreement resulting from the payment of the NeoPharm Settlement
Payment.
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
