EXHIBIT 10.3  



    
      EXECUTION
        COPY

       

    

    INTERCREDITOR
      AND SUBORDINATION AGREEMENT

     

    THIS
      INTERCREDITOR AND SUBORDINATION AGREEMENT, dated as of May 30, 2008 (this
“Agreement”)
      by and
      among NPIL Pharma Inc., a Delaware corporation (together with any successor
      or
      assigns thereof or any subsequent holder of the Subordinated Obligations
      referred to below,
      the
“Subordinated
      Lender”), RXELITE,
      INC., a Delaware corporation (the “Company”),
      each
      subsidiary of the Company listed on the signature pages hereto (each a
      "Guarantor"
      and
      collectively, the "Guarantors";
      together with the Company and their respective successors and assigns (including
      any trustee or debtor-in-possession for or of any such Person), being
      collectively, the “Obligors”
and
      each an “Obligor”),
      and
      CASTLERIGG MASTER INVESTMENTS LTD., a British Virgin Islands company, in its
      capacity as collateral agent (in such capacity, together with any successors
      or
      assigns, the “Senior
      Agent”)
      for
      the Senior Creditors under the Senior Transaction Documents (as such terms
      are
      defined below).

     

    The
      parties hereto hereby agree as follows:

     

    1. Definitions.
      Unless
      otherwise defined herein, terms defined in the Senior Notes or the Securities
      Purchase Agreement (each as defined below) and used herein shall have the
      meanings given to them in the Senior Notes and the Securities Purchase
      Agreement. The words “hereof,” “herein” and “hereunder” and words of similar
      import when used in this Agreement shall refer to this Agreement as a whole
      and
      not to any particular provision of this Agreement, and section references are
      to
      this Agreement unless otherwise specified. The meanings given to terms defined
      herein shall be equally applicable to both the singular and plural forms of
      such
      terms. In addition, the following terms shall have the following
      meanings:

     

    “Bankruptcy
      Code”:
      United
      States Bankruptcy Code (11 U.S.C. § 101 et
      seq.),
      as
      amended from time to time.

     

    “Collateral”:
      collectively, any and all property from time to time subject to security
      interests or liens to secure payment or performance of the Senior Obligations
      or
      the Subordinated Obligations. 

     

    “Company”:
      has
      the meaning set forth in the preamble to this Agreement. 

     

    “Insolvency
      Event”:
      (a)
      any Obligor or any of its Subsidiaries commencing any case, proceeding or other
      action (i) under any existing or future law of any jurisdiction, domestic or
      foreign, relating to bankruptcy, insolvency, reorganization, conservatorship
      or
      relief of debtors, seeking to have an order for relief entered with respect
      to
      it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
      reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
      composition or other relief with respect to it or its debts, or (ii) seeking
      appointment of a receiver, trustee, custodian, conservator or other similar
      official for it or for all or any substantial part of its assets, or any Obligor
      or any of its Subsidiaries making a general assignment for the benefit of its
      creditors; or (b) there being commenced against any Obligor or any of its
      Subsidiaries any case, proceeding or other action of a nature referred to in
      clause (a) above; or (c) there being commenced against any Obligor or any of
      its
      Subsidiaries any case, proceeding or other action seeking issuance of a warrant
      of attachment, execution, distraint or similar process against all or any
      substantial part of its assets; or (d) any Obligor or any of its Subsidiaries
      taking any action in furtherance of, or indicating its consent to, approval
      of,
      or acquiescence in, any of the acts set forth in clause (a), (b) or (c) above;
      or (e) any Obligor or any of its Subsidiaries is generally not paying, or being
      unable to pay, or admitting in writing its inability to pay, its debts as they
      become due.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Insolvency
      Proceeding”
:
      any
      case, proceeding or other action of the type described in the definition of
      Insolvency Event.

     

    “Obligor”
and
      “Obligors”:
      have
      the respective meanings set forth in the preamble to this
      Agreement.

     

    “Postpetition
      Interest”:
      any
      interest or entitlement to fees or expenses that accrues after the commencement
      of any Insolvency Proceeding, whether or not such interest or fees are allowed
      or allowable as a claim in such proceeding.

     

    “Securities
      Purchase Agreement”:
      that
      certain Securities Purchase Agreement, dated as of December 31, 2007 by and
      among the Company and the Buyers, as the same may be amended, restated,
      replaced, modified or supplemented from time to time, including, without
      limitation, amendments, modifications, supplements, restatements and/or
      replacements thereof giving effect to increases, renewals, extensions,
      refundings, deferrals, restructurings, replacements or refinancings of, or
      additions to, the arrangements provided in any such Securities Purchase
      Agreement (whether provided by the original Senior Creditor, successors to
      the
      Senior Creditors or any other buyers). Reference herein to the Securities
      Purchase Agreement shall be deemed to mean and include any and all documentation
      executed and/or delivered in connection with any refinancings or reconstitutions
      of the Securities Purchase Agreement. 

     

    “Senior
      Agent”
has
      the
      meaning set forth in the preamble to this Agreement.

     

    “Senior
      Creditor”
any
      "Buyer" (as such term is defined in the Securities Purchase Agreement) or any
      other holder of the Senior Notes, the Senior Agent, and/or any other provider
      of
      any other financial accommodations under the Senior Transaction Documents,
      in
      each case, together with any successors or assigns thereof, and “Senior
      Creditors”
shall
      mean all such institutions collectively; provided, that references herein to
      Senior Creditors shall mean and include any replacement agents, holders of
      the
      Senior Notes or other providers of other financial accommodations in connection
      with any refinancing or reconstitution of the Senior Obligations.

     

    “Senior
      Default”:
      any
      default or event of default which would result in the Senior Obligations
      becoming, or permit the holders of any of the Senior Obligations to declare
      the
      Senior Obligations (or any of them) to be, due and payable prior to their stated
      maturity date or require the Obligors or any Subsidiary thereof to repurchase
      such Senior Obligations prior to their stated maturity date, or any event or
      condition which with the giving of notice or passage of time would become any
      such default or event of default. 

     

    “Senior
      Notes”:
      means
      the "Notes" as such term is defined in the Securities Purchase Agreement and
      any
      other note from time to time made by the Company in favor of the Senior
      Creditors evidencing the Senior Obligations, in each case, as the same may
      be
      amended, restated or otherwise modified in accordance with the terms hereof
      (together with any extensions, reissuances, increases or renewals thereto or
      thereof). Reference herein to Senior Notes shall be deemed to mean and include
      any promissory notes or similar documents executed and/or delivered in
      connection with any refinancings or reconstitutions of the Senior Transaction
      Documents.

     

    
      
         

      

      
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    “Senior
      Obligations”:
      all
      obligations (including, without limitation, the due performance and observance
      by each Obligor of all of its other obligations from time to time existing
      in
      respect of any of the Transaction Documents) and liabilities of whatever kind
      or
      nature owing by any of the Obligors and/or their Subsidiaries to the Senior
      Agent or any of the other Senior Creditors under or pursuant to
      this
      Agreement and any of the Senior Transaction Documents (including, without
      limitation, in respect of interest accruing at any default rate and any
      Postpetition Interest), whether
      direct or indirect, absolute or contingent, due or to become due, or now
      existing or hereafter incurred, whether arising under, out of, or in connection
      with, the Securities Purchase Agreement, the Senior Notes, this Agreement,
      the
      other Senior Transaction Documents or any other document made, delivered or
      given by any Obligor, in each case whether on account of principal, interest,
      reimbursement obligations, fees, indemnities, costs, expenses or otherwise
      (including, without limitation, all fees and disbursements of counsel to the
      Senior Agent and Senior Creditors that are required to be paid by the Obligors
      pursuant to the terms of the Securities Purchase Agreement, this Agreement
      or
      any other Senior Transaction Document, and all professionals fees in connection
      with the administration of any Insolvency Proceeding involving any Obligor,
      whether or not allowed or allowable as a claim in any such
      proceeding).

     

    “Senior
      Security Documents”:
      all
      documents and instruments (including, any guarantees made in favor of the Senior
      Agent), now existing or hereafter arising, which create or purport to create
      a
      security interest in property to secure payment or performance of the Senior
      Obligations, in each case, as amended, restated or otherwise modified from
      time
      to time, together with any similar agreements executed in connection with any
      refinancing of the Senior Obligations. Reference herein to Senior Security
      Documents shall be deemed to mean and include any and all such documentation
      executed and/or delivered in connection with any refinancings or reconstitutions
      of the Senior Transaction Documents.

     

    “Senior
      Termination Date”:
      the
      date on which all Senior Transaction Documents and all obligations of the Senior
      Agent and the other Senior Creditors to make any financial accommodations under
      any and all Senior Transaction Documents are irrevocably terminated and all
      of
      the Senior Obligations are paid in full in cash.

     

    “Senior
      Transaction Documents”:
      the
      Securities Purchase Agreement, the Senior Notes, the Senior Security Documents
      and all other instruments, documents and agreements that from time to time
      evidence the Senior Obligations and/or are executed and/or delivered by the
      Obligors or any of their Subsidiaries in connection therewith, in each case,
      as
      the same may be amended, modified or supplemented from time to time, including,
      without limitation, amendments, modifications, supplements and restatements
      thereof giving effect to increases, renewals, extensions, refundings, deferrals,
      restructurings, replacements or refinancings of, or additions to, the
      arrangements provided in such Senior Transaction Documents (whether provided
      by
      the original Senior Creditors, successors to the Senior Creditors or other
      lenders). Reference herein to Senior Transaction Documents shall be deemed
      to
      mean and include any and all documentation executed and/or delivered in
      connection with any refinancings or reconstitutions of the Senior Transaction
      Documents.

     

    
      
         

      

      
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    “Subordinated
      Credit Agreement”:
      that
      certain Loan and Security Agreement dated as of May 30, 2008 by and between
      the
      Company and the Subordinated Lender, as the same may be amended, restated,
      replaced, modified or supplemented from time to time in accordance with the
      terms hereof. Reference herein to the Subordinated Credit Agreement shall be
      deemed to mean and include any and all documentation executed and/or delivered
      in connection with any refinancings or reconstitutions of the Subordinated
      Credit Agreement. 

     

    “Subordinated
      Guaranty”:
      any
      guaranty, keep well agreement, hypothecation or pledge agreement or other
      agreement to guaranty, pledge assets or otherwise ensure payment of the
      Subordinated Obligations issued or made by and/or binding upon any of the
      Obligors or any of their properties and “Subordinated
      Guaranties”
means
      all such agreements, collectively. References herein to the Subordinated
      Guaranties shall be deemed to mean and include any and all other guaranties
      or
      similar documentation executed and/or delivered in connection with any
      refinancings or reconstitutions of the Subordinated Loan Documents.

     

    “Subordinated
      Lender”:
      has
      the meaning set forth in the preamble to this Agreement.

     

    “Subordinated
      Loan”:
      the
      loans made by the Subordinated Lender to the Company from time to time pursuant
      to the Subordinated Loan Documents.

     

    “Subordinated
      Loan Documents”:
      collectively, the
      Subordinated Credit Agreement, the Subordinated Note, the Subordinated Security
      Documents, the Subordinated Guaranties and any other documents or instruments
      executed or binding upon the Obligors or their properties that from time to
      time
      evidence the Subordinated Obligations or secure or support payment or
      performance thereof, in each case, as amended, restated or otherwise modified
      in
      accordance with the terms hereof. References herein to the Subordinated Loan
      Documents shall be deemed to mean and include any and all documentation executed
      and/or delivered in connection with any refinancings or reconstitutions of
      the
      Subordinated Loan Documents.

     

    “Subordinated
      Note”:
      that
      certain Secured Promissory Note dated May 30, 2008 executed by the Company
      in
      favor of the Subordinated Lender in the original principal amount of $3,000,000,
      and any other promissory note from time to time made by any Obligor in favor
      of
      the Subordinated Lender evidencing the Subordinated Obligations, in each case,
      as the same may be amended, restated or otherwise modified in accordance with
      the terms hereof. Reference herein to Subordinated Note shall be deemed to
      mean
      and include any and all similar documentation executed and/or delivered in
      connection with any refinancings or reconstitutions of the Subordinated Note.
      

     

    “Subordinated
      Obligations”:
      all
      obligations and liabilities of whatever kind or nature owing by any of the
      Obligors and/or their Subsidiaries to the Subordinated Lender under or pursuant
      to any of the Subordinated Loan Documents (including, without limitation,
      interest accruing at the then applicable rate provided in the Subordinated
      Credit Agreement after the maturity of the Subordinated Loans and interest
      accruing at the then applicable rate provided in the Subordinated Note after
      the
      filing of any petition in bankruptcy, or the commencement of any Insolvency
      Proceeding relating to any Obligor or any Subsidiary thereof, whether or not
      a
      claim for Postpetition Interest is allowed in such proceeding), whether direct
      or indirect, absolute or contingent, due or to become due, or now existing
      or
      hereafter incurred, which may arise under, out of, or in connection with, the
      Subordinated Note, this Agreement, or any other Subordinated Loan Document,
      in
      each case whether on account of principal, interest, reimbursement obligations,
      fees, indemnities, costs, expenses or otherwise (including, without limitation,
      all fees and disbursements of counsel to the Subordinated Lender that are
      required to be paid by any Obligor pursuant to the terms of the Subordinated
      Note, this Agreement or any other Subordinated Loan Document). 

     

    
      
         

      

      
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    “Subordinated
      Security Documents”:
      collectively, (a) the Subordinated Credit Agreement and (b) any other documents
      executed by any Obligor or any Subsidiary thereof with the prior written consent
      of the Senior Agent that from time to time secure payment or performance of
      the
      Subordinated Obligations, in each case, as the same may be amended, restated
      or
      otherwise modified in accordance with the terms hereof. References herein to
      the
      Subordinated Security Documents shall be deemed to mean and include any and
      all
      such similar documentation executed and/or delivered in connection with any
      refinancings or reconstitutions of the Subordinated Loan Documents.

     

    2.
      Subordination.

     

    (a) Except
      as
      otherwise expressly permitted pursuant to Section
      3(a)
      hereof,
      each Obligor and the Subordinated Lender hereby agrees, for itself and each
      future holder of the Subordinated Obligations, that (i) other than with respect
      to the accrual and capitalization of interest on the Subordinated Obligations,
      and (y) the funding by the Subordinated Lender of any Loans permitted pursuant
      to the terms of the Subordinated Credit Agreements as in effect in the date
      hereof, no Obligor shall request or accept and the Subordinated Lender shall
      not
      make or extend, any additional loans, advances, letters of credit, bankers
      acceptance or any other extension of credit to or for the benefit of any Obligor
      at any time from and after the date of this Agreement, and (ii) all Subordinated
      Obligations are expressly “subordinate and junior in right of payment” (as that
      phrase is defined in Section
      2(b)
      hereof)
      to all Senior Obligations. This Agreement shall be deemed to constitute a
“subordination agreement” under and within the meaning of Section 510 of the
      Bankruptcy Code. 

     

    (b) “Subordinate
      and Junior in Right of Payment”
means
      that (i) no part of the Subordinated Obligations shall have any claim to the
      assets of any Obligor or any of its Subsidiaries (including, without limitation,
      assets purchased with the proceeds of the Subordinated Loan) on a parity with
      or
      prior to the claim of the Senior Obligations regardless of how any such claim
      arises, whether by grant, statute, operation of law, subrogation or otherwise,
      and (ii) unless and until the Senior Termination Date shall have occurred,
      without the express prior written consent of the Senior Agent: (A) no
      Subordinated Lender will take, demand or receive from any Obligor or any
      Subsidiary of any Obligor, and no Obligor shall or shall permit any of its
      Subsidiaries to, make, give or permit, directly or indirectly, by set-off,
      redemption, purchase or in any other manner, any payment of (of whatever kind
      or
      nature, whether in cash, property, securities or otherwise) or give any security
      for (except such security as granted under the Subordinated Credit Agreement
      as
      of the date hereof) the whole or any part of the Subordinated Obligations,
      including, without limitation, any letter of credit or similar credit support
      facility to support payment of the Subordinated Obligations; (B) no Subordinated
      Lender will accelerate for any reason the scheduled maturities of any amount
      owing under the Subordinated Obligations; it being agreed however that the
      Subordinated Lender may accelerate the Subordinate Obligations if and to the
      extent the Senior Creditors shall have accelerated the Senior Obligations;
      or
      (C) exercise any rights with respect to the Collateral securing the Subordinated
      Obligations or any other assets or properties of any Obligor, commence or
      prosecute any enforcement of any rights or remedies under the Subordinated
      Loan
      Documents, including the rights of set-off or recoupment, or exercise any rights
      or remedies of a secured creditor under the Uniform Commercial Code of any
      applicable jurisdiction or the Bankruptcy Code. 

     

    (c) The
      expressions “prior payment in full,” “payment in full,” “paid in full” and any
      other similar terms or phrases when used in this Agreement with respect to
      the
      Senior Obligations shall mean the termination of all commitments of the Senior
      Creditors to extend credit to the Obligors thereunder and the payment in full,
      in immediately available funds, of all of the Senior Obligations.

     

    
      
         

      

      
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    3. Permitted
      Payments.
      

     

    (a)The
      Subordinated Lender shall not accept from Obligors any payments of principal,
      interest, fees on the Subordinated Obligations or any other amount owed by
      any
      Obligor to the Subordinated Lender, but may accrue and capitalize interest,
      fees
      and expenses on the Subordinated Obligations in accordance with the provisions
      of the Subordinated Credit Agreement as in effect on the date hereof, provided
      that upon the payment in full of all the Senior Obligations, the Obligors may
      make regularly scheduled interest payments in cash to the Subordinated Lender.
      Other than as expressly set forth immediately above in this Section
      3(a),
      no
      payments, proceeds or distributions shall be made by any Obligor or any
      Subsidiary thereof or accepted by the Subordinated Lender on the Subordinated
      Obligations until after the date that is 181 days after the Senior Termination
      Date, and any payment, proceeds or distributions made by an Obligor or received
      (including by set-off, recoupment, as the proceeds of any Collateral or any
      other manner) by the Subordinated Lender other than as expressly permitted
      above
      shall be deemed the property of the Senior Agent and the other Senior Creditors,
      shall be segregated by the Subordinated Lender and be deemed to have been
      received by and held by the Subordinated Lender in trust for the Senior Agent
      and the other Senior Creditors, and shall be turned over by the Subordinated
      Lender as soon as practical to the Senior Agent in the identical form received
      (with any necessary endorsements) for distribution to the Senior Creditors
      in
      accordance with the Senior Transaction Documents.

     

    (b)No
      Senior
      Default shall be deemed to have been waived for purposes of this Section
      3
      unless
      and until the Obligors and the Subordinated Lender shall have received a written
      notice of the waiver of such Senior Default from the Senior Agent.

     

    (c)If
      the
      Subordinated Lender receives payment pursuant to clause
      (a)
      of this
Section
      3,
      such
      payment shall be deemed to constitute a representation by the Obligors to the
      Senior Agent and the other Senior Creditors that each of the conditions set
      forth in subclause
      3(a)
      are
      satisfied and that such payment is otherwise permitted by such clause
      (a)
      and the
      Senior Transaction Documents.

     

    (d)The
      provisions of Section
      3(a)
      shall
      not be applicable to the extent that the provisions of Section
      4
      are
      applicable.

     

    4. Additional
      Provisions Concerning Subordination.
      The
      Subordinated Lender and the Obligors further hereby agree that upon the
      occurrence of any Insolvency Event:

     

    (i) all
      Senior Obligations shall be paid in full before any payment or distribution
      of
      whatever kind or nature is made by or with the assets of any of the Obligors
      with respect to the Subordinated Obligations; and 

     

    (ii) any
      payment or distribution of assets of any Obligor, whether in cash, property
      or
      securities, to which the Subordinated Lender would be entitled except for the
      provisions hereof, shall be paid or delivered by the Obligors, or any receiver,
      trustee in bankruptcy, liquidating trustee, disbursing agent or other Person
      making such payment or distribution, directly to the Senior Agent, for its
      benefit and the benefit of the Senior Creditors,
      to the
      extent necessary to pay in full all Senior Obligations, before any payment
      or
      distribution of any kind or nature shall be made to the Subordinated
      Lender.

     

    
      
         

      

      
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    5. Rights
      in Collateral.

     

    (a) Notwithstanding
      anything to the contrary contained in the Securities Purchase Agreement, any
      Senior Security Document, any other Senior Transaction Document or the
      Subordinated Credit Agreement, any Subordinated Security Document or other
      Subordinated Loan Document and irrespective of:

     

    (i) the
      time,
      order or method of attachment or perfection of the security interests created
      by
      any Senior Security Document or any Subordinated Security Document,

    


    (ii) the
      time
      or order of filing or recording of financing statements or other documents
      filed
      or recorded to perfect security interests in any Collateral,

    


    (iii) anything
      contained in any filing or agreement to which the Senior Agent, any Senior
      Creditor
      or the
      Subordinated Lender now or hereafter may be a party; 

    


    (iv) the
      avoidance, subordination, invalidity or lapse of any Liens granted by any of
      the
      Obligors or any of their Subsidiaries in favor of the Senior Agent or any of
      the
      Senior Creditors pursuant to the Senior Transaction Documents; or

    


    (v) the
      rules
      for determining perfection or priority under the Uniform Commercial Code or
      any
      other law governing the relative priorities of secured creditors,

    


    any
      security interest in any Collateral pursuant to any Senior Security Documents
      has and shall have priority over any security interest in such Collateral
      pursuant to any Subordinated Security Document. Upon the request of the Senior
      Agent and at the Company’s expense, the Subordinated Lender agrees to file
      amendments to each of its UCC financing statements and any other publicly filed
      instruments to expressly acknowledge that the liens evidenced thereby are junior
      and subordinate to those securing the Senior Obligations, such amendments to
      be
      in form and substance reasonably satisfactory to the Senior Agent.

    


    (b) The
      Subordinated Lender acknowledges and agrees that the Senior Obligations may
      be
      increased or reduced and that the terms of the Senior Transaction Documents
      may
      be modified, extended or amended from time to time, and that the aggregate
      amount of the Senior Obligations may be replaced or refinanced, in each event,
      without the consent of or notice to the Subordinated Lender and without
      affecting the provisions hereof.

    


    (c)
      So
      long
      as the Senior Termination Date shall not have occurred, whether or not any
      Insolvency Event has occurred,

     

    (i) the
      Subordinated Lender will not (A) exercise or seek to exercise any rights or
      exercise any remedies with respect to any Collateral or (B) institute any action
      or proceeding with respect to such rights or remedies, including without
      limitation, any action of foreclosure or (C) contest, protest or, except as
      set
      forth in Section
      12(g)
      hereof,
      object to any foreclosure proceeding or action brought by the Senior Agent
      or
      any of the Senior Creditors or any other exercise by the Senior Agent or any
      of
      the Senior Creditors of any rights and remedies under any Senior Transaction
      Documents; or

    


    (ii) the
      Senior Agent
      and the
      other Senior Creditors
      shall
      each have the exclusive right to enforce rights and exercise remedies with
      respect to the Senior Obligations and neither
      the Senior Agent nor
      the
      other Senior Creditors shall
      be
      required to marshal any Collateral.

     

    
      
         

      

      
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    (d) In
      exercising rights and remedies with respect to the Collateral, the Senior Agent
      and
      the
      other Senior Creditors
      may
      enforce the provisions of the Senior Security Documents and exercise remedies
      thereunder and under any other Senior Transaction Documents, all in such order
      and in such manner as they may
      determine in the exercise of their
      sole
      discretion. Such exercise and enforcement shall include, without limitation,
      the
      rights to sell or otherwise dispose of Collateral, to incur expenses in
      connection with such sale or disposition and to exercise all the rights and
      remedies of a secured lender under the Uniform Commercial Code of any applicable
      jurisdiction.

     

    (e) From
      and
      after the Senior Termination Date, the Subordinated Lender shall have the right
      to enforce the provisions of the Subordinated Security Documents and exercise
      remedies thereunder.

     

    (f) Any
      money, property or securities realized upon the sale, disposition or other
      realization by the Senior Agent and/or
      the other Senior Creditors
      upon all
      or any part of the Collateral, shall be applied by the Senior Agent
      and the
      other Senior Creditors
      to the
      Senior Obligations in such order as the Senior Agent and the other Senior
      Creditors deem appropriate in their sole discretion (subject to any limitations
      thereon in the Senior Transaction Documents).

     

    (g) Whether
      or not any Insolvency Proceeding has been commenced by or against any Obligor,
      any Collateral or proceeds thereof received in connection with any exercise
      of
      any rights and remedies with respect to the Collateral shall (at such time
      as
      such Collateral or proceeds has been monetized) be applied: (i) first,
      to the
      payment of costs and expenses of the Senior Agent in connection with
      such exercise of rights and remedies, (ii) second,
      to the
      payment or collateralization of the Senior Obligations in accordance with
      the Senior Transaction Documents, (iii) third,
      to the
      payment of costs and expenses of the Subordinated Lender in connection
      with such exercise of rights and remedies (to the extent Subordinated
      Lender’s exercise of rights and remedies is permitted under this
      Agreement), and (iv) fourth,
      to the
      payment of the Subordinated Obligations in accordance with
      the Subordinated Loan Documents.

     

    (h) The
      Senior Agent's rights with respect to the Collateral include the right to
      release any or all of the Collateral from the Lien of any Senior Security
      Document or Subordinated Security Document in connection with the sale of such
      Collateral, notwithstanding that the net proceeds of any such sale may not
      be
      used to permanently prepay any Senior Obligations or Subordinated Obligations.
      In the event Senior Agent releases any of its Liens on all or any part of the
      Collateral as permitted under this Section 5(h), Senior Agent agrees to use
      commercially reasonable efforts to notify Subordinated Lender in writing at
      least 5 days in advance thereof with such notice describing in reasonable
      details the portion of the Collateral to be released. If the Senior Agent shall
      determine, in connection with any sale of Collateral, that the release of the
      Lien of any Subordinated Security Document on such Collateral in connection
      with
      such sale is necessary or advisable, the Subordinated Lender shall execute
      such
      release documents and instruments and shall take such further actions as the
      Senior Agent shall reasonably request. The Subordinated Lender hereby
      irrevocably constitutes and appoints the Senior Agent and any officer of the
      Senior Agent, with full power of substitution, as its true and lawful
      attorney-in-fact with full irrevocable power and authority in the place and
      stead of the Subordinated Lender and in the name of the Subordinated Lender
      or
      in the Senior Agent's own names, from time to time in the Senior Agent's
      discretion, for the purpose of carrying out the terms of this Agreement if
      and
      to the extent the Subordinated Lender fails to take any such action promptly
      after the Senior Agent's demand therefor, to take any and all appropriate action
      and to execute any and all documents and instruments that may be necessary
      or
      desirable to accomplish the purposes of this Agreement, including, without
      limitation, executing and/or filing any financing statements, endorsements,
      assignments or other instruments of transfer or release. The Subordinated Lender
      hereby ratifies all that said attorneys shall lawfully do or cause to be done
      pursuant to the power of attorney granted in this paragraph. Notwithstanding
      the
      foregoing, in the event the Senior Agent releases its Liens on behalf of itself
      and the other Senior Creditors on the Collateral in connection with the payment
      in full of the Senior Obligations, Subordinated Lender shall not be obligated
      to
      release its liens (nor be deemed to release its Liens hereunder) or any
      Collateral remaining after giving effect to payment in full of the Senior
      Obligations.

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

     

    6. Consent
      of the Subordinated Lender.

     

    (a) The
      Subordinated Lender hereby consents and agrees that, without the necessity
      of
      any reservation of rights against the Subordinated Lender, and without notice
      to
      or further assent by the Subordinated Lender:

     

    (i) any
      demand for payment of any Senior Obligations made by the Senior Agent
or
      any
      other Senior Creditor
      may be
      rescinded in whole or in part by the Senior Agent
      or such
      Senior Creditor,
      and any
      Senior Obligation may be continued, and the Senior Obligations, or the liability
      of the Obligors or any other party upon or for any part thereof, or any
      collateral security or guarantee therefor or right of offset with respect
      thereto, or any obligation or liability of Obligor or any other party under
      any
      of the Senior Transaction Documents, may, from time to time, in whole or in
      part, be renewed, extended, modified, accelerated, compromised, waived,
      surrendered, or released by the Senior Agent
      or the
      other Senior Creditors;
      and

     

    (ii) any
      of
      the Senior Transaction Documents may be amended, modified, supplemented or
      terminated, in whole or in part, as the Senior Agent and/or the other Senior
      Creditors may deem advisable from time to time, and any collateral security
      at
      any time held by the Senior Agent for the payment of any of the Senior
      Obligations may be sold, exchanged, waived, surrendered or
      released,

     

    in
      each
      case all without notice to or further assent by the Subordinated Lender, which
      will remain bound under this Agreement, and all without impairing, abridging,
      releasing or affecting the subordination provided for herein.

     

    (b) The
      Subordinated Lender hereby waives any and all notice of the creation, renewal,
      extension or accrual of any of the Senior Obligations, notice of or proof of
      reliance by the Senior Agent
      or the
      other Senior Creditors
      upon
      this Agreement, notice of any adverse change in the financial condition of
      any
      Obligor or of any other fact that might increase the Subordinated Lender’s risk
      hereunder, notice of presentment for payment, demand, protest, and notice
      thereof as to any instrument among the Senior Transaction Documents, notice
      of
      any Event of Default under the Senior Transaction Documents, and all other
      notices and demands to which the Subordinated Lender might otherwise be
      entitled. The Senior Obligations, and any of them, shall be deemed conclusively
      to have been created, contracted or incurred in reliance upon this Agreement,
      and all dealings among the Obligors (or any of them), the Senior Agent and
      the
      other Senior Creditors shall be deemed to have been consummated in reliance
      upon
      this Agreement. The Subordinated Lender acknowledges and agrees that the Senior
      Agent and the Senior Creditors have
      relied upon the subordination provided for herein in consenting to the
      transactions contemplated under the Subordinate Loan Documents. The Subordinated
      Lender waives notice of or proof of reliance on this Agreement and protest,
      demand for payment and notice of default.

     

    (c) The
      Subordinated Lender hereby waives any right that the Subordinated Lender may
      have whether such right arises under the Uniform Commercial Code of any
      applicable jurisdiction or other applicable law, to receive notice of the Senior
      Agent’s or other Senior Creditors’ intended disposition of any Collateral or the
      Senior Agent’s or other Senior Creditors’ proposed retention of any Collateral
      in satisfaction of the Senior Obligations (or any portion thereof). The
      Subordinated Lender further agrees that in the event any Obligor or any its
      Subsidiaries consents or fails to object to a proposed retention of any
      Collateral by the Senior Agent or the other Senior Creditors in satisfaction
      of
      the Senior Obligations (or a portion thereof), the Subordinated Lender hereby
      consents to such proposed retention regardless of whether the Subordinated
      Lender is provided with notice of such proposed retention.

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

     

    7. Negative
      Covenants of the Subordinated Lender.
      Until
      such time as the Senior Termination Date shall have occurred, the Subordinated
      Lender shall not, without the prior written consent of the Senior
      Agent:

     

    (a) sell,
      assign, or otherwise transfer, in whole or in part, the Subordinated Obligations
      or any interest therein to any other Person (a ”Transferee”)
      or
      create, incur or suffer to exist any security interest, lien, charge or other
      encumbrance whatsoever upon the Subordinated Obligations in favor of any
      Transferee unless (i) such assignment or transfer is to a Transferee which
      is a
      fund or account managed by or under common management with the Subordinated
      Lender and the Transferee of which shall be bound by all terms and provisions
      hereof (and any transfer to any such Transferee in violation of this provision
      shall be deemed void and of no force or effect) or (ii) such assignment or
      transfer is to any other Transferee and (A) such action is made expressly
      subject to this Agreement and (B) such Transferee expressly acknowledges to
      the
      Senior Agent, by a writing in form and substance satisfactory to the Senior
      Agent, the subordination provided for herein and agrees to be bound by all
      of
      the terms hereof;

     

    (b) permit
      any of the Subordinated Loan Documents to be amended, modified or otherwise
      supplemented;

     

    (c)commence,
      or join with any creditors other than the Senior Agent and the other Senior
      Creditors,
      collectively, in commencing any Insolvency Proceeding or seeking to have a
      trustee, receiver, liquidator or similar official appointed for any Obligor,
      or
      take or attempt to take any action to take possession, foreclose upon, liquidate
      or otherwise proceed against any Collateral, exercise any right, remedy or
      power
      with respect to, or otherwise take any action to enforce their interest in
      or
      realize upon the Collateral;

     

    (d) assert,
      collect, take any action or institute any proceeding to collect, or enforce
      all
      or any part of the Subordinated Obligations or any claims in respect thereof,
      except as specifically provided for herein; 

     

    (e) take
      or
      cause to be taken any action, the purpose or effect of which is to make any
      Lien
      in respect of any Subordinated Obligations pari
      passu
      with or
      senior to the Liens under the Senior Transaction Documents; 

     

    (f) except
      as
      permitted pursuant to Section
      12(g)
      of this
      Agreement, oppose, object to, interfere with, hinder or delay, in any manner,
      whether by judicial proceedings (including, without limitation, any Insolvency
      Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer
      or
      other disposition of the Collateral by the Senior Agent or the other Senior
      Creditors or the taking or enforcing of any other action, rights or proceeding
      by the Senior Agent or the other Senior Creditors in respect of the Collateral
      or the Senior Obligations; or

     

    (g) initiate
      or prosecute or join with any other Person to initiate or prosecute any claim,
      action, objection or other proceeding (w) challenging the enforceability of
      the
      Senior Agent’s or any Senior Creditor’s claim in any Insolvency Proceeding, (x)
      challenging the enforceability of any liens or security interests in assets
      securing the Senior Obligations, (y) asserting any claims which Obligors may
      hold with respect to the Senior Agent or any other Senior Creditor, or (z)
      except as permitted pursuant to Section
      12(g)
      of this
      Agreement, objecting to any sale or other disposition of Obligors’ assets
      consented to by the Senior Agent and/or the other Senior Creditors in any
      Insolvency Proceeding.

     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

     

    8. Senior
      Obligations Unconditional.
      All
      rights and interests of the Senior Agent and the other Senior
      Creditors
      hereunder, and all agreements and obligations of the Subordinated Lender and
      Obligors hereunder, shall remain in full force and effect irrespective
      of:

     

    (a) any
      lack
      of validity or enforceability of any Senior Security Documents or any other
      Senior Transaction Documents;

     

    (b) any
      change in the time, manner or place of payment of, or in any other term of,
      all
      or any of the Senior Obligations, or any amendment or waiver or other
      modification, whether by course of conduct or otherwise, of the terms of the
      Securities Purchase Agreement, the Senior Notes, or any other Senior Security
      Document;

     

    (c) any
      exchange, release or non-perfection of any security interest in any Collateral,
      or any release, amendment, waiver or other modification, whether in writing
      or
      by course of conduct or otherwise, of all or any of the Senior Obligations
      or
      any guarantee thereof; or

     

    (d) any
      other
      circumstances which otherwise might constitute a defense available to, or a
      discharge of, Obligor in respect of the Senior Obligations, or of either the
      Subordinated Lender or any Obligor in respect of this Agreement.

     

    9. Representations
      and Warranties.
      The
      Subordinated Lender represents and warrants to the Senior Agent and the other
      Senior Creditors that on the date hereof:

     

    (a) (i)
      the
      Subordinated Loan Documents, including the Subordinated Credit Agreement and
      the
      Subordinated Note, have been issued to it for good and valuable consideration,
      (ii) the Subordinated Obligations are owned by the Subordinated Lender free
      and
      clear of any security interests, liens, charges or encumbrances whatsoever
      arising from, through or under the Subordinated Lender, (iii) the Subordinated
      Obligations are payable solely and exclusively to the Subordinated Lender and
      to
      no other Person and are payable without deduction for any defense, offset or
      counterclaim, and (iv) the Subordinated Note and the Subordinated Credit
      Agreement constitute the only evidence of the Subordinated
      Obligations;

     

    (b) the
      Subordinated Lender has the corporate power and authority and the legal right
      to
      execute and deliver and to perform its obligations under this Agreement and
      has
      taken all necessary corporate action to authorize its execution, delivery and
      performance of this Agreement;

     

    (c) this
      Agreement constitutes a legal, valid and binding obligation of the Subordinated
      Lender enforceable against the Subordinated Lender in accordance with its terms,
      except as such enforceability may be limited by bankruptcy, insolvency,
      fraudulent conveyance, moratorium or other similar laws affecting creditors’
rights generally or by general principles of equity (whether determined in
      a
      case in equity or at law);

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

     

    (d) the
      execution, delivery and performance of this Agreement will not violate any
      provision of any law, rule, regulation, writ, order, judgment or decree binding
      upon the Subordinated Lender or any term of any indenture, loan agreement,
      security agreement or other material contract (including, without limitation,
      this Agreement or the Transaction Documents) to which the Subordinated Lender
      is
      a party or by which it is bound and will not result in the creation or
      imposition of any Lien on any of the properties or revenues of the Subordinated
      Lender pursuant to any requirement of law affecting or any contractual
      obligation of the Subordinated Lender, except the interests of the Senior Agent
      under this Agreement; and

     

    (e) no
      consent or authorization of, filing with, or other act by or in respect of,
      any
      arbitrator or governmental authority and no consent of any other Person
      (including, without limitation, any stockholder or creditor of the Subordinated
      Lender), is required in connection with the execution, delivery, performance,
      validity or enforceability of this Agreement.

     

    10. No
      Representation by the Senior Agent or
      the
      other Senior Creditors.
      (a)
      Except as set forth in clause (b) below, none of the Senior Agent or any other
      Senior Creditor has made or otherwise makes to the Subordinated Lender, any
      representations or warranties, express, or implied, nor do the Senior Agent
      or
      any Senior Creditor assume any liability to the Subordinated Lender with respect
      to: (i) the financial or other condition of Obligors or any other obligor under
      any instruments of guarantee with respect to the Senior Obligations, (ii) the
      enforceability, validity, value or collectibility of the Senior Obligations
      or
      the Subordinated Obligations, any collateral therefor, or any guarantee or
      security which may have been granted in connection with any of the Senior
      Obligations or the Subordinated Obligations or (iii) Obligors’ title or right to
      transfer any collateral or security.

     

    (b) Senior
      Agent represents and warrants that, to its knowledge, no Event of Default (i)
      is
      currently outstanding under the Senior Transaction Documents and (ii) has
      occurred under the Senior Transaction Documents that has not, on or prior to
      the
      date hereof, been waived by the Senior Lenders.

     

    11. Waiver
      of Claims.
      To the
      maximum extent permitted by law, the Subordinated Lender waives any claim it
      might have against the Senior Agent or any other Senior Creditor with respect
      to, or arising out of, any action or failure to act or any error of judgment,
      negligence, or mistake or oversight whatsoever on the part of the Senior Agent
      or any other Senior Creditor,
      or
      their respective directors, officers, employees or agents with respect to any
      exercise of rights or remedies under the Senior Transaction Documents or any
      transaction relating to the Collateral. Neither of the Senior Agent, any other
      Senior Creditor
      nor any
      of their respective directors, officers, employees or agents shall be liable
      for
      failure to demand, collect or realize upon any of the Collateral or for any
      delay in doing so or shall be under any obligation to sell or otherwise dispose
      of any Collateral upon the request of any Obligor or the Subordinated Lender
      or
      any other Person or to take any other action whatsoever with regard to the
      Collateral or any part thereof.

     

    12. Provisions
      Applicable After Bankruptcy. No Turnover.
      

     

    (a) The
      provisions of this Agreement shall continue in full force and effect
      notwithstanding the occurrence of any Insolvency Event. All references in this
      Agreement to the Obligors shall be deemed to include such Obligor as a
      debtor-in-possession and any receiver or trustee for such Obligor in any
      Insolvency Proceeding.

     

    
      
         

      

      
        12

        
          

        

      

      
         

      

    

     

    (b) The
      Subordinated Lender agrees not to support or vote in favor of any plan of
      reorganization (and shall be deemed to have voted to reject any plan of
      reorganization) unless such plan (i) pays off, in cash in full, all Senior
      Obligations, (ii) is accepted by the class of
      Senior
      Creditors voting thereon and is supported by the Senior Agent or (iii)
      incorporates this Agreement by reference and continues the rights and priorities
      set forth herein with respect to the Senior Obligations and the Subordinated
      Obligations and the Collateral in a manner which is not adverse to the Senior
      Agent and the other Senior Creditors subsequent to the date of any such plan
      of
      reorganization.

     

    (c) Until
      the
      Senior Termination Date shall have occurred, the Subordinated Lender hereby
      agrees that it shall not file any pleadings or motions, take any position at
      any
      hearing or proceeding of any nature, or otherwise take any action whatsoever,
      in
      each case, in respect of any of the Collateral, including, without limitation,
      with respect to the determination of any Liens or claims held by the Senior
      Agent and the other Senior Creditors (including the validity and enforceability
      thereof) or the value of any claims of such parties under Section 506(a) of
      the
      Bankruptcy Code or otherwise; provided
      that the
      Subordinated Lender may file a proof of claim in any Insolvency Proceeding
      subject to the limitations of this Agreement with respect thereto.

     

    (d) If
      any
      Obligor or any Subsidiary thereof becomes the subject of an Insolvency
      Proceeding, and if the Senior Agent or any of the other Senior Creditors desire
      to consent to the use of cash collateral under the Bankruptcy Code or to provide
      financing to any Obligor under the Bankruptcy Code (“DIP
      Financing”),
      then
      the Subordinated Lender agrees that it (w) will be deemed to have consented
      to,
      will raise no objection to, nor support any other Person objecting to, the
      use
      of such cash collateral or to such DIP Financing, (x) will not request or accept
      adequate protection or any other relief in connection with the use of such
      cash
      collateral or such DIP Financing; provided that if all of the Senior Creditors
      shall have been provided adequate protection, then the Subordinated Lender
      may
      also request and accept adequate protection to the extent such protections
      do
      not entitle the Subordinated Lender priority to any assets or payments senior
      to, or pari
      passu
      with,
      the Senior Obligations or otherwise contravening the terms of this Agreement,
      (y) will subordinate (and will be deemed hereunder to have subordinated) the
      Liens under the Subordinated Loan Documents (1) to such DIP Financing on the
      same terms as such Liens are subordinated to the Liens relating to the Senior
      Transaction Documents (and such subordination will not alter in any manner
      the
      terms of this Agreement) and (2) to any adequate protections provided to the
      Senior Agent and the other Senior Creditors, and (z) agrees that notice received
      five days prior to the entry of an order approving such usage of cash collateral
      or approving such financing shall be adequate notice.

     

    (e) The
      Subordinated Lender agrees that it will not (x) seek relief from the automatic
      stay or from any other stay in any Insolvency Proceeding or take any action
      in
      derogation thereof, in each case in respect of any Collateral without the
      consent of the Senior Agent or (y) seek or offer to provide financing to any
      Obligor under any DIP Financing unless consented to by the Senior
      Agent.

     

    (f) The
      Subordinated Lender agrees that it shall not object, contest or support any
      other Person objecting to or contesting (i) any request by the Senior Agent
      or
      the other Senior Creditors for adequate protection or (ii) any objection by
      the
      Senior Agent or the other Senior Creditors to any motion, relief, action or
      proceeding based on a claim of a lack of adequate protection or (iii) the
      payment of interest, fees, expenses or other amounts to the Senior Agent or
      the
      other Senior Creditors under Section 506(b) or 506(c) of the Bankruptcy Code
      or
      otherwise. 

     

    (g) Except
      as
      set forth in the following proviso, the Subordinated Lender shall not oppose
      any
      sale or disposition of any assets of any Obligor that is supported by the Senior
      Agent and, to the extent not objected to in accordance with the following
      proviso, the Subordinated Lender shall be deemed to have consented to any such
      sale or disposition pursuant to Section 363 of the Bankruptcy Code and to have
      its Lien released in such asset; provided that notwithstanding the foregoing,
      the Subordinated Lender shall retain such rights to object to any such sale
      or
      disposition as any unsecured creditor would possess.

     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

     

    (h) Nothing
      contained herein shall prohibit or any way limit any of the Senior Agent or
      the
      other Senior Creditors from objecting in any Insolvency Proceeding or otherwise
      to any action taken by the Subordinated Lender, including the seeking by the
      Subordinated Lender or adequate protection or the asserting the Subordinated
      Lender of its rights and remedies under the Subordinated Loan Documents or
      otherwise.

     

    (i) In
      the
      event that Subordinated Lender shall not have filed a claim permitted hereunder
      in any Insolvency Proceeding with respect to any Obligor at least 60 days prior
      to the expiration of the time to file such claims, then Senior Agent , on behalf
      of Subordinated Lender, shall be authorized to file a claim with respect to
      the
      Subordinated Debt.

     

    (j) Notwithstanding
      anything herein to the contrary, in the event that any part of a claim of the
      Subordinated Lender is deemed to be unsecured, the Subordinated Lender shall
      retain such rights as any unsecured creditor would possess.

     

    13. Invalidated
      Payments.
      To the
      extent that the Senior Agent or any other Senior Creditor receives
      payments on, or proceeds of Collateral for, the Senior Obligations which are
      subsequently invalidated, declared to be fraudulent or preferential, set aside
      and/or required to be repaid to any Obligor or any Subsidiary thereof, a
      trustee, receiver or any other party under any bankruptcy law, state or federal
      law, common law, or equitable cause, then to the extent of such payment or
      proceeds received, the Senior Obligations, or part thereof, intended to be
      satisfied shall be revived and continue in full force and effect as if such
      payments or proceeds had not been received by the Senior Agent or such other
      Senior Creditor.

     

    14. Further
      Assurances.
      The
      Subordinated Lender and Obligors may, and at any time from time to time upon
      the
      written request of the Senior Agent shall, in each case, at their own expense,
      promptly and duly execute and deliver such further instruments and documents
      and
      take such further actions as the Senior Agent may reasonably request for the
      purposes of obtaining or preserving the full benefits of this Agreement and
      of
      the rights and powers herein granted.

     

    15. Turnover.
      Whether
      or not any Insolvency Proceeding has been commenced by or against any Obligor,
      any Collateral or proceeds thereof received by
      the Subordinated Lender (a) in connection with the exercise of
      any rights and remedies with respect to the Collateral or otherwise, or (b)
      as a
      result of the Subordinated Lender’s collusion with any Obligor in
      violating the rights of the Senior Agent or any other Senior
      Creditor (within the meaning of Section 9-332 of the Uniform Commercial Code
      of
      any applicable jurisdiction), shall be segregated and held in trust and
      forthwith paid over to the Senior Agent in the same form as received, with
      any necessary endorsements or as a court of competent jurisdiction may otherwise
      direct. The Senior Agent is hereby authorized to make any such endorsements
      as agent for the Subordinated Lender. This authorization is coupled with an
      interest and is irrevocable until the Senior Termination Date.


     

    16. Provisions
      Define Relative Rights.
      This
      Agreement is intended solely for the purpose of defining the relative rights
      of
      the Senior Agent and the other Senior Creditors, collectively, on the one hand,
      and the Subordinated Lender, on the other hand, and no other Person shall have
      any right, benefit or other interest under this Agreement.

     

    17. Legend.
      The
      Subordinated Lender and each Obligor will cause each of the Subordinated Note
      and each Subordinated Loan Document to bear upon its face a legend referring
      to
      this Agreement and indicating that such documents are subordinated as provided
      herein.

     

    18. Specific
      Performance.
      The
      Senior Agent is hereby authorized to demand specific performance of this
      Agreement at any time when the Subordinated Lender shall have failed to comply
      with any of the provisions of this Agreement applicable to the Subordinated
      Lender whether or not the Obligors shall have complied with any of the
      provisions hereof applicable to the Obligors, and the Subordinated Lender hereby
      irrevocably waives any defense based on the adequacy of a remedy at law which
      might be asserted as a bar to such remedy of specific performance.

     

    19. Powers
      Coupled With An Interest.
      All
      powers, authorizations and agencies contained in this Agreement are coupled
      with
      an interest and are irrevocable until the Senior Termination Date shall have
      occurred.

     

    
      
         

      

      
        14

        
          

        

      

      
         

      

    

     

    20. Notices;
      Appointment as Agent.
      All
      notices, requests and demands to or upon the Senior Agent, the other Senior
      Creditors, the Obligors or the Subordinated Lender to be effective shall be
      in
      writing (or by telex, fax or similar electronic transfer confirmed in writing)
      and shall be deemed to have been duly given or made (a) when delivered by hand
      or (b) if given by mail, when deposited in the mails by certified mail, return
      receipt requested, or (c) if by telex, fax or similar electronic transfer,
      when
      sent and receipt has been confirmed, addressed as follows:

     

    
      	
              If
                to the Senior Agent or to any other Senior Creditor:

               

              c/o
                Sandell Asset Management

              40
                West 57th St

              26th
                Floor

              New
                York, NY 10019

              Telephone:
                212-603-5700

              Facsimile:
                212-603-5710

              Attention:
                Cem Hacioglu/Matthew Pliskin

            
	 
	
              If
                to any Obligor:

               

              RxElite,
                Inc.

              1404
                North Main

              Suite
                200

              Meridian,
                Idaho 83642

              Telephone: 208-288-5550

              Facsimile: 208-288-1191

              Attention: Jonathan
                Houssian

               

              With
                a copy to:

               

              Haynes
                and Boone, LLP

              153
                East 53rd
                Street, Suite 4900 

              New
                York, NY 10022

              Telephone: 212-659-7300

              Facsimile: 212-918-8989
                

              Attention: Harvey
                J. Kesner, Esq

            
	 
	
              If
                to the Subordinated Lender:

               

              NPIL
                Pharma Inc.

              379
                Thornall Street, 1st Floor

              Alfeiri
                Building

              Edison,
                NJ 08837

              Attention:
                R
                Ananthanarayanan, President

              Telephone:
                732-549-9451

              Telecopier:
                732 388 4013

               

              with
                copies to:

               

              Waller
                Lansden Dortch & Davis

              511
                Union Street, Suite 2700

              Nashville,
                TN 37212

              Attention:
                Robert
                L. Harris, Esq.: Jessica Green Gichner

              Telephone:
                615-850-8467,
                615-850-8675

              Telecopier:
                615-244-6804

            
	 


    

    The
      Senior Agent, the Obligors and the Subordinated Lender may change their
      respective addresses and transmission numbers for notices by notice in the
      manner provided in this Section.

     

    
      
         

      

      
        15

        
          

        

      

      
         

      

    

     

    Each
      Senior Creditor hereby appoints the Senior Agent, as its agent and
      representative hereunder to take such actions, receive and
      give
      all
      notices and grant all acquittance in accordance with the terms of this
      Agreement. 

     

    21. Counterparts.
      This
      Agreement may be executed by one or more of the parties on any number of
      separate counterparts, and all of said counterparts taken together shall be
      deemed to constitute one and the same instrument. A set of the counterparts
      of
      this Agreement signed by all the parties shall be lodged with the Senior Agent.
      Execution and delivery may be effected by the transmission of facsimile
      signatures pages. The parties shall thereafter exchange original signature
      pages.

     

    22. Severability.
      Any
      provision of this Agreement which is prohibited or unenforceable in any
      jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
      such prohibition or unenforceability without invalidating the remaining
      provisions hereof, and any such prohibition or unenforceability in any
      jurisdiction shall not invalidate or render unenforceable such provision in
      any
      other jurisdiction.

     

    23. Integration.
      This
      Agreement represents the agreement of the Senior Agent and the Subordinated
      Lender with respect to the subject matter hereof and there are no promises
      or
      representations by the Senior Agent or by the Subordinated Lender relative
      to
      the subject matter hereof not reflected herein.

     

    24. Amendments
      in Writing; No Waiver: Cumulative Remedies.

     

    (a) None
      of
      the terms or provisions of this Agreement may be waived, amended, supplemented
      or otherwise modified except by a written instrument executed by the Senior
      Agent
      and the
      Subordinated Lender; provided that if
      any
      such amendment or supplement hereto modifies the obligations of any of the
      Obligors hereunder or under the
      Senior Transaction Documents
      or the
      Subordinated Loan Documents in any material adverse respect, the consent of
      such
      Obligor being so impacted shall also be required, otherwise the consent of
      the
      Obligors is not required.

     

    (b) No
      failure to exercise, nor any delay in exercising, on the part of the Senior
      Agent
      or any
      other Senior Creditor,
      of any
      right, power or privilege hereunder shall operate as a waiver thereof. No single
      or partial exercise of any right, power or privilege hereunder shall preclude
      any other or further exercise thereof or the exercise of any other right, power
      or privilege.

     

    (c) The
      rights and remedies herein provided are cumulative, may be exercised singly
      or
      concurrently and are not exclusive of any other rights or remedies provided
      by
      law.

     

    25. Section
      Headings.
      The
      section headings used in this Agreement are for convenience of reference only
      and are not to affect the construction hereof or be taken into consideration
      in
      the interpretation hereof.

     

    26. Successors
      and Assigns.
      This
      Agreement shall be binding upon the successors, heirs, administrators, executors
      and assigns of each of the Obligors and the Subordinated Lender and shall inure
      to the benefit of each of the Senior Agent, the other Senior Creditors and
      their
      respective successors and assigns.

     

    
      
         

      

      
        16

        
          

        

      

      
         

      

    

     

    27. GOVERNING
      LAW: CONSENT TO JURISDICTION AND VENUE.
      EXCEPT
      AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE SENIOR TRANSACTION DOCUMENTS,
      IN
      ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
      THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY,
      AND
      CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
      APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE
      LAWS OF THE UNITED STATES OF AMERICA. EACH OF OBLIGORS, SUBORDINATED LENDER,
      SENIOR CREDITORS AND SENIOR AGENT HEREBY CONSENTS AND AGREES THAT THE STATE
      OR
      FEDERAL COURTS LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK OR NEW YORK, NEW
      YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
      DISPUTES AMONG OBLIGORS, SUBORDINATED LENDER, SENIOR CREDITORS AND SENIOR AGENT
      (OR ANY OF THEM) PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT
      OF OR
      RELATING TO THIS AGREEMENT, PROVIDED, THAT THE PARTIES HERETO ACKNOWLEDGE THAT
      ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
      OF
      SUCH LOCATIONS AND, PROVIDED, FURTHER THAT NOTHING IN THIS AGREEMENT SHALL
      BE
      DEEMED OR OPERATE TO PRECLUDE THE SENIOR AGENT FROM BRINGING SUIT OR TAKING
      OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR
      ANY
      OTHER SECURITY FOR THE SENIOR OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
      COURT ORDER IN FAVOR OF THE SENIOR AGENT. THE OBLIGORS AND SUBORDINATED LENDER
      EACH EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
      ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE OBLIGORS AND SUBORDINATED
      LENDER EACH HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
      PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. OBLIGORS AND
      SUBORDINATED LENDER EACH HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
      COMPLAINTS AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
      SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED
      OR CERTIFIED MAIL ADDRESSED TO IT AT THE ADDRESS SET FORTH IN THE CREDIT
      AGREEMENT OR BENEATH ITS SIGNATURE LINE BELOW, AS THE CASE MAY BE, AND THAT
      SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH OBLIGOR’S OR
      SUBORDINATED LENDER’S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN
      THE U.S. MAILS, PROPER POSTAGE PREPAID.

     

    28. MUTUAL
      WAIVER OF JURY TRIAL.
      THE
      PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
      PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
      OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO,
      OR
      INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
      THIS
      AGREEMENT OR ANY OF THE SENIOR TRANSACTION DOCUMENTS OR THE TRANSACTIONS RELATED
      THERETO.

     

    
      
         

      

      
        17

        
          

        

      

      
         

      

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
      executed and delivered as of the day and year first above written.

     

    
      	 	
              SUBORDINATED
                LENDER:

               

              NPIL
                PHARMA INC.

               

              


              By:________________________

              Title:

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

      
        	 	
                
                  SENIOR
                    AGENT:

                   

                  CASTLERIGG
                    MASTER INVESTMENTS LTD.,

                  AS
                    THE SENIOR AGENT

                  


                   

                  By:________________________

                  Title:

                

              


      

    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	 	
              OBLIGORS:

               

              RXELITE,
                INC.

              


               

              By:________________________

              Title:

            
	 	 
	 	
              RXELITE
                HOLDINGS INC.

               

               

              By: 
                ________________________

              Name:

              Title:

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    OBLIGORS’
      ACKNOWLEDGEMENT AND CONSENT

     

    Each
      of
      the undersigned hereby consents to the foregoing Intercreditor and Subordination
      Agreement dated as of May 30, 2008 (the “Intercreditor
      Agreement”)
      to
      which this Acknowledgement and Consent (this “Acknowledgement”)
      is
      attached. By executing this Acknowledgement, each of the undersigned hereby
      acknowledges the provisions of the Intercreditor Agreement as they relate to
      the
      relative rights of the Senior Agent, the other Senior Creditors and the
      Subordinated Lender as between such creditors (collectively, the “Creditors”).
      The
      undersigned each further agrees that, except as expressly otherwise provided
      in
      the Intercreditor Agreement, the terms of the Intercreditor Agreement shall
      not
      give the undersigned any, nor modify any, substantive rights vis-à-vis any
      Creditor, or any obligations or liabilities owing to such parties, under any
      instrument, document, agreement or arrangement. If any Creditor shall enforce
      its rights or remedies in violation of the terms of the Intercreditor Agreement,
      each Obligor agrees that it shall not use such violation as a defense to any
      future enforcement by any Creditor under the Intercreditor Agreement, or the
      enforcement by any such Creditor of any other instrument, document or agreement
      under which such Obligor is bound or assert such violation as a counterclaim
      or
      basis for set-off or recoupment against any such Creditor. and agrees to abide
      thereby and to keep, observe and perform the several matters and things therein
      intended to be kept, observed and performed by it, and specifically agrees
      not
      to make any payments contrary to the terms of said Agreement.

     

    A
      breach
      of any of the terms and conditions of this consent by any Obligor or any
      Subsidiary thereof shall constitute an "Event of Default" under the Senior
      Transaction Documents.

     

    
      	 	
              
                RXELITE,
                  INC.

                 

                


                 

                By:________________________

                Title:

              

            
	 	 
	 	
              RXELITE
                HOLDINGS INC.

               

               

              By: 
                ________________________

              Name:

              Title: