by either
9
Company to or on account of the Senior Indebtedness. If either Company fails to
make any payment on account of the Subordinated Indebtedness by reason of any
provision contained herein, such failure shall, notwithstanding such provision
contained herein, constitute a default with respect to the Subordinated
Indebtedness if and to the extent such failure would otherwise constitute such a
default in accordance with the terms of the Subordinated Indebtedness.
23.
Termination of Agreement.
This Agreement shall continue and
shall be irrevocable until the date all of the Senior Indebtedness has been
Finally Paid or otherwise discharged and released in an express writing to such
effect by the Senior Lenders.
24.
Reinstatement.
The obligations of the Subordinated Lender
under the Agreement shall continue to be effective, or be reinstated, as the
case may be, if at any time any payment in respect of any Senior Indebtedness is
rescinded or must otherwise be restored or returned by any Senior Lender by
reason of any bankruptcy, reorganization, arrangement, composition or similar
proceeding or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, either Company, any Obligor
or any substantial part of its property, or otherwise, all as though such
payment had not been made.
25.
Legends.
Until the termination of this Agreement, the
Subordinated Lender will cause to be clearly, conspicuously and prominently
inserted on the face of the Subordinated Note and any other Subordinated
Document, as well as any renewals or replacements thereof, the following legend:
"THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT (THE "SUBORDINATION AGREEMENT") DATED AS OF OCTOBER 7,
2003 AMONG NEOPHARM, INC., A DELAWARE CORPORATION, AKORN, INC., A LOUISIANA
CORPORATION ("AKORN"), AND AKORN (NEW JERSEY), INC., AN ILLINOIS CORPORATION
("AKORN NJ"; TOGETHER WITH AKORN, EACH A "COMPANY" AND COLLECTIVELY THE
"COMPANIES") AND LASALLE BANK NATIONAL ASSOCIATION (TOGETHER WITH ITS SUCCESSORS
AND ASSIGNS, THE "SENIOR AGENT"), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED
BY THE COMPANIES PURSUANT TO THAT CERTAIN CREDIT AGREEMENT DATED AS OF OCTOBER
7, 2003 AMONG THE COMPANIES, THE SENIOR AGENT AND THE LENDERS FROM TIME TO TIME
PARTY THERETO, AND THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE CREDIT AGREEMENT)
AS SUCH CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS MAY BE AMENDED, RESTATED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME AS CONTEMPLATED BY THE
SUBORDINATION AGREEMENT; AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE
HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT."
Each Company's books shall be marked to evidence the subordination of
all of the Subordinated Indebtedness to the holders of Senior Indebtedness, in
accordance with the terms of this Agreement. Each Senior Lender is authorized to
examine such books from time to time in accordance with the terms of the Credit
Agreement and to make any notations required by this Agreement.
26.
Governing Law.
THIS