8-K

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act

Date of Report: August 17, 2009
(Date of Earliest Event Reported)

Akorn, Inc.

(Exact Name of Registrant as Specified in its Charter)

Louisiana
(State or other
Jurisdiction of
Incorporation) 001-32360
(Commission
File Number) 72-0717400
(I.R.S. Employer
Identification No.)

1925 W. Field Court, Suite 300
Lake Forest, Illinois 60045
(Address of principal executive offices)

(847) 279-6100
(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (See General Instruction A.2. below):

o      Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o      Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o      Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240. 13e-4(c))

Item 1.01 Entry into a Definitive Material Agreement

On August 17, 2009, Akorn, Inc. (the “Company”) entered into an Amended and Restated Credit Agreement by and among the Company, Akorn (New Jersey), Inc., a wholly owned subsidiary of the Company (collectively with the Company, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”) and EJ Funds, LP (“EJ Funds”), assignee of General Electric Capital Corporation, which replaces and supersedes the prior credit agreement among the above mentioned parties. The Amended and Restated Credit Agreement increased the borrowing availability from $5,650,000 to $10,000,000 and revised the interest payable under the agreement to 10% fixed per annum, eliminating the prime rate and LIBOR options. The Amended and Restated Credit Agreement is secured by the assets of the Company and is not subject to debt covenants until April 1, 2010. The foregoing summary of the Amended and Restated Credit Agreement is qualified in its entirety by reference to the Amended and Restated Credit Agreement, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.

In connection with this Amended and Restated Credit Agreement, the Company issued EJ Funds warrants to purchase 1,650,806 shares of its common stock at an exercise price of $1.16 (the “Restatement Warrants”), the closing price of the Company’s stock on August 14, 2009, which was the last full trading day prior to execution of the Amended and Restated Credit Agreement. The Restatement Warrants are exercisable beginning August 17, 2009 and expire August 17, 2014. The foregoing description of the Restatement Warrants is qualified in its entirety by reference to the warrant, which is attached hereto as Exhibit 10.2 and incorporated herein by reference.

In addition, on August 17, 2009, the Company entered into an Amended and Restated Subordinated Note in favor of The John N. Kapoor Trust Dated September 20, 1989 (the “Kapoor Trust”), which replaces and supersedes the prior subordinated note which had matured and not been paid off on July 28, 2009. Pursuant to the Amended and Restated Subordinated Note, the Company refinanced its $5,000,000 subordinated debt payable to the Kapoor Trust. The principal amount of $5,000,000 has been increased to $5,853,267 to include all accrued but unpaid interest owing under the prior subordinated note through August 16, 2009 and the annual interest rate of 15% remained unchanged. The Amended and Restated Subordinated Note is due and payable on August 17, 2014. The foregoing summary of the Amended and Restated Subordinated Note is qualified in its entirety by reference to the Amended and Restated Subordinated Note, which is attached hereto as Exhibit 10.3 and incorporated herein by reference.

In connection with this Amended and Restated Subordinated Note, the Company issued the Kapoor Trust warrants to purchase 2,099,935 shares of its common stock at an exercise price of $1.16 (the “Subordinated Note Warrants”), the closing price of the Company’s stock on August 14, 2009, which was the last full trading day prior to execution of the Amended and Restated Subordinated Note. The Subordinated Note Warrants are exercisable beginning August 17, 2009 and expire August 17, 2014. The foregoing description of the Subordinated Note Warrants

is qualified in its entirety by reference to the warrant, which is attached hereto as Exhibit 10.4 and incorporated herein by reference.

In connection with the Restatement Warrants and the Subordinated Note Warrants, the Company entered into a Registration Rights Agreement with EJ Funds and the Kapoor Trust pursuant to which the Company granted EJ Funds and the Kapoor Trust certain rights to cause the Company to register the shares of common stock underlying the Restatement Warrants and the Subordinated Note Warrants. The foregoing description is qualified in its entirety by reference to the Registration Rights Agreement which is attached hereto as Exhibit 10.5 and incorporated herein by reference.

On August 17, 2009, the Borrowers, the Lenders, EJ Funds and the Kapoor Trust entered into an Amended and Restated Subordination Agreement setting forth the relative rights and priorities of EJ Funds, the Lenders and the Kapoor Trust under the Amended and Restated Credit Agreement and the Amended and Restated Subordinated Note. The foregoing description of the Amended and Restated Subordination Agreement is qualified in its entirety by reference to the Amended and Restated Subordination Agreement, which is attached hereto as Exhibit 10.6 and incorporated herein by reference.

Dr. John N. Kapoor, Akorn’s Chairman, largest shareholder and lender under the Amended and Restated Credit Agreement and the Amended and Restated Subordinated Note, is the President of EJ Financial Enterprises, Inc., which is the general partner of EJ Funds. Dr. Kapoor is also the beneficiary and sole trustee of the Kapoor Trust.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information provided in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 3.02 Unregistered Sales of Equity Securities

The information provided in Item 1.01 as it relates to the Restatement Warrants and the Subordinated Debt Warrants is incorporated herein by reference. In issuing the Restatement Warrants and the Subordinated Debt Warrants, the Company relied on the exemption from registration provided under Section 4(2) of the Securities Act of 1933 and/or Rule 506 of Regulation D thereunder. There were no commissions paid in connection with the issuance of the Restatement Warrants or the Subordinated Debt Warrants.

Item 9.01 Financial Statements and Exhibits

10.1	Amended and Restated Credit Agreement
10.2	Restatement Warrants
10.3	Amended and Restated Subordinated Note

10.4	Subordinated Note Warrants
10.5	Registration Rights Agreement
10.6	Amended and Restated Subordination Agreement

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.

Akorn, Inc.
By:	/s/ Timothy A. Dick
	Timothy A. Dick
	Chief Financial Officer

Date: August 21, 2009

EX-10.1

Exhibit 10.1

EXECUTION COPY

$10,000,000 CREDIT FACILITY

AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of August 17, 2009

by and among

AKORN, INC. and AKORN (NEW JERSEY), INC.,

as Borrowers,

THE OTHER PERSONS PARTY HERETO THAT ARE
DESIGNATED AS CREDIT PARTIES

EJ FUNDS LP
for itself, as a Lender and as the Agent for all Lenders,

THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO

as Lenders

(amending and restating the Credit Agreement
dated as of January 7, 2009)

Table of Contents

		Page
ARTICLE I. THE CREDITS			2
1.1	Amounts and Terms of Commitments		2
1.2	Notes		3
1.3	Interest		4
1.4	Loan Accounts		4
1.5	Procedure for Revolving Credit Borrowing		5
1.6	Reserved		6
1.7	Optional Prepayments and Revolving Loan Commitment Reductions		6
1.8	Mandatory Prepayments of Loans		6
1.9	Fees		7
1.10	Payments by the Borrowers		8
1.11	Payments by the Lenders to the Agent; Settlement		9
1.12	Eligible Accounts		11
1.13	Eligible Inventory		11
1.14	Eligible Equipment		11
1.15	Eligible Real Estate		12
1.16	Incremental Commitments		12
1.17	Borrower Representative		13
ARTICLE II. CONDITIONS PRECEDENT			14
2.1	Conditions of Initial Loans		14
2.2	Conditions to All Borrowings		14
ARTICLE III. REPRESENTATIONS AND WARRANTIES			15
3.1	Corporate Existence and Power		15
3.2	Corporate Authorization; No Contravention		16
3.3	Governmental Authorization		16
3.4	Binding Effect		16
3.5	Litigation		17
3.6	No Default		17
3.7	ERISA Compliance		17
3.8	Use of Proceeds; Margin Regulations		18
3.9	Title to Properties		18
3.10	Taxes		18
3.11	Financial Condition		18
3.12	Environmental Matters		19
3.13	Regulated Entities		20
3.14	Solvency		20
3.15	Labor Relations		20
3.16	Intellectual Property		20
3.17	Subsidiaries		21
3.18	Brokers’ Fees; Transaction Fees		21
3.19	Insurance		21

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		Page
3.20	Full Disclosure		21
3.21	Foreign Assets Control Regulations and Anti-Money Laundering		21
3.22	FDA Regulatory Compliance		22
3.23	Healthcare Regulatory Compliance		23
3.24	Reimbursement Coding		24
3.25	HIPAA		24
3.26	Subordinated Indebtedness		24
ARTICLE IV. AFFIRMATIVE COVENANTS			24
4.1	Financial Statements		25
4.2	Certificates; Other Information		25
4.3	Notices		28
4.4	Preservation of Corporate Existence, Etc.		31
4.5	Maintenance of Property		31
4.6	Insurance		31
4.7	Payment of Obligations		32
4.8	Compliance with Laws		33
4.9	Inspection of Property and Books and Records		33
4.10	Use of Proceeds		34
4.11	Cash Management Systems		34
4.12	Landlord Agreements		34
4.13	Further Assurances		34
4.14	Reserved		35
4.15	Licensor Consents		36
4.16	Post-Closing Covenants		36
4.17	Board Representation		36
ARTICLE V. NEGATIVE COVENANTS			37
5.1	Limitation on Liens		37
5.2	Disposition of Assets		38
5.3	Consolidations and Mergers		39
5.4	Loans and Investments		39
5.5	Limitation on Indebtedness		40
5.6	Transactions with Affiliates		40
5.7	Reserved		41
5.8	Use of Proceeds		41
5.9	Contingent Obligations		41
5.10	Compliance with ERISA		42
5.11	Restricted Payments		42
5.12	Change in Business		42
5.13	Change in Structure		42
5.14	Accounting Changes		42
5.15	Amendments to Material Agreements and Subordinated Indebtedness		43
5.16	No Negative Pledges		43
5.17	OFAC		43
5.18	Reserved		44
5.19	Sale-Leasebacks		44

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		Page
5.20	Hazardous Materials		44
ARTICLE VI. FINANCIAL COVENANTS			44
6.1	Fixed Charge Coverage Ratio		44
6.2	Minimum EBITDA		44
6.3	Minimum Liquidity		45
6.4	Capital Expenditures		45
ARTICLE VII. EVENTS OF DEFAULT			45
7.1	Event of Default		45
7.2	Remedies		48
7.3	Rights Not Exclusive		48
ARTICLE VIII. THE AGENT			49
8.1	Appointment and Duties		49
8.2	Binding Effect		50
8.3	Use of Discretion		50
8.4	Delegation of Rights and Duties		50
8.5	Reliance and Liability		50
8.6	Agent Individually		52
8.7	Lender Credit Decision		52
8.8	Expenses; Indemnities		52
8.9	Resignation of Agent		53
8.10	Release of Collateral or Guarantors		53
8.11	Additional Secured Parties		54
ARTICLE IX. MISCELLANEOUS			54
9.1	Amendments and Waivers		54
9.2	Notices		55
9.3	Electronic Transmissions		56
9.4	No Waiver; Cumulative Remedies		57
9.5	Costs and Expenses		58
9.6	Indemnity		58
9.7	Marshaling; Payments Set Aside		59
9.8	Successors and Assigns		59
9.9	Assignments and Participations; Binding Effect		60
9.10	Confidentiality		62
9.11	Set-off; Sharing of Payments		63
9.12	Counterparts		63
9.13	Severability; Facsimile Signature		64
9.14	Captions		64
9.15	Independence of Provisions		64
9.16	Interpretation		64
9.17	No Third Parties Benefited		64
9.18	Governing Law and Jurisdiction		64
9.19	Waiver of Jury Trial		65
9.20	Entire Agreement; Release; Survival		65

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		Page
9.21	Patriot Act		66
9.22	Replacement of Lender		66
9.23	Joint and Several		67
9.24	Creditor-Debtor Relationship		67
9.25	Location of Closing		67
ARTICLE X. TAXES, YIELD PROTECTION AND ILLEGALITY			67
10.1	Taxes		67
10.2	Certificates of Lenders		69
ARTICLE XI. DEFINITIONS			70
11.1	Defined Terms		70
11.2	Other Interpretive Provisions		87
11.3	Accounting Terms and Principles		88
11.4	Payments		88
ARTICLE XII. CROSS-GUARANTY			89
12.1	Cross-Guaranty		89
12.2	Waivers by Borrowers		89
12.3	Benefit of Guaranty		90
12.4	Subordination of Subrogation, Etc.		90
12.5	Election of Remedies		90
12.6	Limitation		91
12.7	Contribution with Respect to Guaranty Obligations		91
12.8	Liability Cumulative		92
12.9	Reaffirmation of Collateral Documents		92

SCHEDULES

Schedule 1.1(b)	Revolving Loan Commitments
Schedule 3.2	Capitalization
Schedule 3.5	Litigation
Schedule 3.7	ERISA
Schedule 3.12	Environmental
Schedule 3.15	Labor Relations
Schedule 3.18	Brokers’ and Transaction Fees
Schedule 3.22	Recalls
Schedule 5.1	Liens
Schedule 5.4	Investments
Schedule 5.5	Indebtedness
Schedule 5.9	Contingent Obligations
Schedule 11.1	Prior Indebtedness

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EXHIBITS

Exhibit 2.1	Closing Checklist
Exhibit 4.2(b)	Compliance Certificate
Exhibit 4.11	Cash Management System
Exhibit 11.1(a)	Form of Assignment
Exhibit 11.1(b)	Borrowing Base Certificate
Exhibit 11.1(c)	Notice of Borrowing
Exhibit 11.1(d)	Revolving Note
Exhibit 11.1(f)	Eligible Accounts
Exhibit 11.1(g)	Eligible Inventory

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AMENDED AND RESTATED CREDIT AGREEMENT

     This AMENDED AND RESTATED CREDIT AGREEMENT (including all exhibits and schedules hereto, as the same may be amended, modified and/or restated from time to time, this “Agreement”) is entered into as of August 17, 2009, by and among Akorn, Inc., a Louisiana corporation (“Akorn”), Akorn (New Jersey), Inc., an Illinois corporation (“Akorn NJ”; together with Akorn, each a “Borrower” and together the “Borrowers”), the other Persons party hereto that are now or hereafter designated as a “Credit Party”, EJ Funds LP, a Delaware limited partnership (successor to General Electric Capital Corporation, a Delaware corporation (“GE Capital”) and herein, in its individual capacity, “EJ Funds”) as Agent for the several financial institutions from time to time party to this Agreement (collectively, the “Lenders” and individually each a “Lender”) and for itself as a Lender, and such Lenders.

WITNESSETH:

     WHEREAS, Borrowers and GE Capital, as agent and a lender, entered into a Credit Agreement dated as of January 7, 2009 (as amended by the Modification Agreement, the “Original Credit Agreement”), pursuant to which, (a) the Borrowers requested, and the lenders agreed to make available to the Borrowers, a revolving credit facility (including a letter of credit subfacility) upon and subject to the terms and conditions set forth in the Original Credit Agreement to (i) refinance Prior Indebtedness (as defined in the Original Credit Agreement), (ii) provide for working capital and other general corporate purpose of the Borrowers and (iii) fund certain fees and expenses associated with the Loans (as defined in the Original Credit Agreement), (b) the Borrowers secured all of their Obligations (as defined in the Original Credit Agreement) by granting a security interest in and lien upon substantially all of their personal and real property to the agent for the benefit of the lenders and (c) each of the Borrowers’ Subsidiaries guaranteed all of the Obligations (as defined in the Original Credit Agreement) of the Borrowers and granted a security interest in and lien upon substantially all of their personal and real property to the agent for the benefit of the lenders;

     WHEREAS, pursuant to an Assignment Agreement dated as of March 31, 2009 between GE Capital and EJ Funds, EJ Funds became the agent and lender to Borrowers under the Original Credit Agreement;

     WHEREAS, on April 13, 2009, Borrower entered into a Modification, Warrant and Investor Rights Agreement (the “Modification Agreement”) with EJ Funds that, among other things, modified certain provisions of the Original Credit Agreement and reduced the Aggregate Revolving Loan Commitment from $25,000,000 to $5,650,000 and provided EJ Funds with certain other rights as set forth therein;

     WHEREAS, on April 13, 2009, pursuant to the Modification Agreement, Akorn issued to EJ Funds a common stock purchase warrant (the “Modification Warrant”) to purchase 1,939,639 shares of Common Stock of Akorn, subject to certain registration rights set forth in the Modification Agreement;

     WHEREAS, the Agent and each of the Lenders have agreed to renew, amend and restate the credit facilities set forth in the Original Credit Agreement, in the manner set forth in this

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Agreement to, among other things, increase the Aggregate Revolving Loan Commitment from $5,650,000 to $10,000,000, eliminate the letter of credit subfacility, temporarily suspend the financial covenants to the extent reflected herein and to otherwise reflect that EJ Funds is currently the sole lender and agent, and it has been agreed by the parties that the Revolving Loan Exposure as of the Restatement Effective Date, the accrued but unpaid balance thereon and any and all other “Obligations” under (and as defined in) the Original Credit Agreement as of the Restatement Effective Date shall be governed by and deemed to be outstanding under this Agreement, with the intent that the terms of this Agreement shall supersede the terms of the Original Credit Agreement as of the Restatement Effective Date, provided that (a) the grants of security interests, Mortgages and Liens under and pursuant to the Loan Documents (as such term is defined in the Original Credit Agreement) shall continue unaltered and remain in full force and effect with no novation of any obligations secured thereby or arising thereunder, (b) each Loan Document (as such term is defined in the Original Credit Agreement) other than the Original Credit Agreement shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby, and the parties hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement, and (c) this Agreement does not constitute a novation, satisfaction, payment or reborrowing of the Revolving Loan Exposure as of the Restatement Effective Date, all accrued but unpaid interest thereon or any other obligation under any the Original Credit Agreement or any other Loan Document (as such term is defined in the Original Credit Agreement), nor does it operate as a waiver of any right, power or remedy of any Lender, any Agent or any other Person under any Loan Document (as such term is defined in the Original Credit Agreement)other than the Original Credit Agreement; and

     WHEREAS, in connection with this Agreement, Akorn is issuing to EJ Funds a common stock purchase warrant (the “Restatement Warrant”) to purchase an aggregate of 1,650,806 shares of Common Stock of Akorn, subject to registration and other rights set forth in a Registration Rights Agreement dated as of the date hereof between Akorn and EJ Funds (the “Registration Rights Agreement”).

     NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto agree as follows:

ARTICLE I.
THE CREDITS

     1.1 Amounts and Terms of Commitments.

          (a) Reserved.

          (b) The Revolving Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Credit Parties contained herein, each Revolving Lender severally and not jointly agrees to make Loans to the Borrowers (each such Loan, a “Revolving Loan”) from time to time on any Business Day during the period from the Restatement Effective Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the amount set forth opposite such Lender’s name in Schedule 1.1(b) under the heading “Revolving Loan Commitment” (such amount as the same may be reduced or increased from time to time pursuant to Section 1.16 or as

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a result of one or more assignments pursuant to Section 9.9, being referred to herein as such Lender’s “Revolving Loan Commitment”); provided, however, that, after giving effect to any Borrowing of Revolving Loans, the aggregate principal amount of the outstanding Revolving Credit Exposure shall not exceed the Maximum Revolving Loan Balance. Subject to the other terms and conditions hereof, amounts borrowed under this subsection 1.1(b) may be repaid and reborrowed from time to time. The “Maximum Revolving Loan Balance” from time to time will be the lesser of:

          (i) the (y) Borrowing Base in effect from time to time minus (z) such Reserves as may be imposed by Agent in its reasonable credit judgment but not reflected in such Borrowing Base Certificate, or

          (ii) the Aggregate Revolving Loan Commitment then in effect.

If at any time the then outstanding principal balance of Revolving Credit Exposure exceeds the Maximum Revolving Loan Balance, then the Borrowers shall immediately prepay then outstanding Revolving Loans, in an amount sufficient to eliminate such excess.

          (iii) If the Borrowers request that Revolving Lenders make, or permit to remain outstanding Revolving Loans in excess of the Borrowing Base (any such excess Revolving Loan is herein referred to as an “Overadvance”), Agent may, in its sole discretion, elect to make, or permit to remain outstanding such Overadvance; provided, however, that Agent may not cause Revolving Lenders to make, or permit to remain outstanding, (A) aggregate Revolving Loans in excess of the Aggregate Revolving Loan Commitment or (B) an Overadvance in an aggregate amount in excess of 10% of the Aggregate Revolving Loan Commitment. If an Overadvance is made, or permitted to remain outstanding, pursuant to the preceding sentence, then all Revolving Lenders shall be bound to make, or permit to remain outstanding, such Overadvance based upon their respective Commitment Percentages of the Aggregate Revolving Loan Commitment in accordance with the terms of this Agreement. If an Overadvance remains outstanding for more than ninety (90) days during any one hundred eighty (180) day period, Revolving Loans must be repaid immediately in an amount sufficient to eliminate all of such Overadvance. Furthermore, Required Lenders may prospectively revoke Agent’s ability to make or permit Overadvances by written notice to Agent. All Overadvances shall bear interest at the Interest Rate; provided, however that if not repaid within five (5) Business Days such Overadvances shall, commencing on the following day, bear interest at the default rate under Section 1.3(c).

          (c) Reserved.

          (d) Reserved.

     1.2 Notes. The Revolving Loans made by each Revolving Lender shall be evidenced by this Agreement and, if requested by such Lender, a Revolving Note payable to the order of such Lender in an amount equal to such Lender’s Revolving Loan Commitment.

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     1.3 Interest.

          (a) Each Loan shall bear interest on the outstanding principal amount thereof from the date when made at a rate per annum equal to ten percent (10%) (the “Interest Rate”). Each calculation of interest by the Agent shall be conclusive and binding on each Borrower and the Lenders in the absence of manifest error. All computations of fees and interest payable under this Agreement shall be made on the basis of a 360-day year and actual days elapsed. Interest and fees shall accrue during each period during which interest or such fees are computed from the first day thereof to the last day thereof.

          (b) Interest on each Loan shall be paid in arrears on each Interest Payment Date. Interest shall also be paid on the date of any payment or prepayment of Loans in full.

          (c) At the election of the Agent or the Required Lenders while any Event of Default exists (or automatically while any Event of Default under subsection 7.1(f) or 7.1(g) exists), the Borrowers shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the Obligations under the Loan Documents from and after the date of occurrence of such Event of Default, at a rate per annum which is determined by adding two percent (2.0%) per annum to the rate per annum applicable to Revolving Loans. All such interest shall be payable on demand of the Agent or the Required Lenders.

          (d) Anything herein to the contrary notwithstanding, the obligations of the Borrowers hereunder shall be subject to the limitation that payments of interest shall not be required for any period for which interest is computed hereunder, to the extent (but only to the extent) that contracting for or receiving such payment by the respective Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest which may be lawfully contracted for, charged or received by such Lender, and in such event the Borrowers shall pay such Lender interest at the highest rate permitted by applicable law (“Maximum Lawful Rate”); provided, however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrowers shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Original Closing Date as otherwise provided in this Agreement.

     1.4 Loan Accounts.

          (a) The Agent, on behalf of the Lenders, shall record on its books and records the amount of each Loan made, the interest rate applicable, all payments of principal and interest thereon and the principal balance thereof from time to time outstanding. The Agent shall deliver to the Borrower Representative on a monthly basis a loan statement setting forth such record for the immediately preceding month. Such record shall, absent manifest error, be conclusive evidence of the amount of the Loans made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so, or any failure to deliver such loan statement shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder (and under any Note) to pay any amount owing with respect to the Loans or provide the basis for any claim against the Agent.

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          (b) The Agent, acting as agent of the Borrowers solely for tax purposes and solely with respect to the actions described in this subsection 1.4(b), shall, if there is more than one Lender or if the sole Lender is not the Agent, establish and maintain at its address referred to in Section 9.2 (or at such other address as the Agent may notify the Borrower Representative) (A) a record of ownership (the “Register”) in which the Agent agrees to register by book entry the interests (including any rights to receive payment hereunder) of the Agent, each Lender and in the Revolving Loans, each of their obligations under this Agreement to participate in each Loan and any assignment of any such interest, obligation or right and (B) accounts in the Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Lenders (and each change thereto pursuant to Sections 9.9 and 9.22), (2) the Commitment of each Lender, (3) the amount of each Loan and each funding of any participation described in clause (A) above, (4) the amount of any principal or interest due and payable or paid, (5) any other payment received by the Agent from a Borrower and its application to the Obligations.

          (c) Notwithstanding anything to the contrary contained in this Agreement, the Loans (including any Notes evidencing such Loans) are registered obligations, and the right, title and interest of the Lenders and their assignees in and to such Loans, as the case may be, shall be transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded therein. This Section 1.4 and Section 9.9 shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code.

          (d) The Credit Parties, the Agent, the Lenders shall treat each Person whose name is recorded in the Register as a Lender, as applicable, for all purposes of this Agreement. Information contained in the Register with respect to any Lender shall be available for access by the Borrowers, the Borrower Representative, the Agent or such Lender at any reasonable time and from time to time upon reasonable prior notice. No Lender shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Lender unless otherwise agreed by the Agent.

     1.5 Procedure for Revolving Credit Borrowing.

          (a) Each Borrowing of a Revolving Loan shall be made upon the Borrower Representative’s irrevocable written notice delivered to the Agent in the form of a Notice of Borrowing, which notice must be received by the Agent prior to 1:00 p.m. (New York time) no later than the third Business Day prior to the requested Borrowing date. Such Notice of Borrowing shall specify:

          (i) the amount of the Borrowing (which shall be in an aggregate minimum principal amount of $100,000 and multiples of $50,000 in excess thereof); and

          (ii) the requested Borrowing date, which shall be a Business Day.

          (b) Upon receipt of a Notice of Borrowing, the Agent will promptly notify each Revolving Lender of such Notice of Borrowing and of the amount of such Lender’s Commitment Percentage of the Borrowing.

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          (c) Unless the Agent is otherwise directed in writing by the Borrower Representative, the proceeds of each requested Borrowing after the Restatement Effective Date will be made available to the Borrowers by the Agent by wire transfer of such amount to the Borrowers pursuant to the wire transfer instructions specified on the signature page hereto.

     1.6 Reserved.

     1.7 Optional Prepayments and Revolving Loan Commitment Reductions.

          (a) The Borrowers may at any time upon at least two (2) Business Days’ prior written notice by Borrower Representative to the Agent, prepay the Loans in whole or in part in an amount greater than or equal to $100,000 in each instance, without penalty or premium.

          (b) The notice of any prepayment shall not thereafter be revocable by the Borrowers or Borrower Representative and the Agent will promptly notify each Lender thereof and of such Lender’s Commitment Percentage of such prepayment. The payment amount specified in such notice shall be due and payable on the date specified therein.

          (c) The Borrowers may at any time upon at least five (5) Business Days’ prior written notice by Borrower Representative to the Agent, permanently reduce or terminate the Revolving Loan Commitments; provided that the Revolving Loan Commitments shall not be reduced to an amount less than the Revolving Credit Exposure then outstanding, unless (A) the Revolving Loan Commitments are being terminated, (B) all Loans and other Obligations are immediately paid in full and (C) Borrower complies with Section 1.9(d). Any such reduction or termination of the Revolving Loan Commitments must be accompanied by the payment of the Fee required by Section 1.9(d), if any. Upon any such reduction or termination of the Revolving Loan Commitments, Borrower’s right to request Loans shall simultaneously be permanently reduced or terminated, as the case may be.

     1.8 Mandatory Prepayments of Loans.

          (a) Reserved.

          (b) Revolving Loan. The Borrowers shall repay to the Lenders in full on the date specified in clause (a) of the definition of “Revolving Termination Date” the aggregate principal amount of the Revolving Loans outstanding on the Revolving Termination Date.

          (c) Asset Dispositions. If a Borrower or any Subsidiaries of a Borrower shall at any time or from time to time:

          (i) make or agree to make a Disposition; or

          (ii) suffer an Event of Loss;

and the aggregate amount of the Net Proceeds received by the Borrowers and their Subsidiaries in connection with such Disposition or Event of Loss and all other Dispositions and Events of Loss occurring during the fiscal year exceeds $100,000, then (A) the Borrower Representative shall promptly notify the Agent of such proposed Disposition or Event of Loss (including the

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amount of the estimated Net Proceeds to be received by a Borrower and/or such Subsidiary in respect thereof) and (B) promptly upon receipt by a Borrower and/or such Subsidiary of the Net Proceeds of such Disposition or Event of Loss, the Borrowers shall deliver, or cause to be delivered, such Net Proceeds to the Agent for distribution to the Lenders as a prepayment of the Loans, which prepayment shall be applied in accordance with subsection 1.8(e) hereof.

          (d) Issuance of Securities. Immediately upon the receipt by any Credit Party or any Subsidiary of any Credit Party of the Net Issuance Proceeds of the issuance of Stock or Stock Equivalents (including any capital contribution other than a capital contribution to a Wholly-Owned Subsidiary which is, or within 15 Business Days after such capital contribution becomes, a Credit Party) or debt securities (other than Net Issuance Proceeds from the issuance of (i) debt securities in respect of Indebtedness permitted hereunder, and (ii) Excluded Equity Issuances), the Borrowers shall deliver, or cause to be delivered, to the Agent for application to the Loans in accordance with subsection 1.8(e) an amount equal to (y) one hundred percent (100%) of such Net Issuance Proceeds with respect to the issuance of any debt securities and (z) fifty percent (50%) of such Net Issuance Proceeds with respect to the issuance of any Stock or Stock Equivalents (including any capital contribution).

          (e) Application of Prepayments. Any prepayments pursuant to Subsection 1.8(c) or 1.8(d) shall be applied to prepay outstanding Revolving Loans, effective as of the date that such prepayment is made, without permanent reduction of the Revolving Loan Commitments. Together with each prepayment under this Section 1.8, the Borrowers shall pay any amounts required pursuant to Section 10.4 hereof.

     1.9 Fees.

          (a) Agent’s Fees. Except during any period during which EJ Funds and/or any of its Affiliates is/are the sole Lender or Lenders under this Agreement, the Borrowers shall pay to the Agent, for the Agent’s own account, fees in the amounts and at the times set forth in that certain letter agreement among the Borrowers and the Agent dated as of the date of the Original Credit Agreement (as amended from time to time, the “Fee Letter”).

          (b) Unused Commitment Fee. Except during any period during which EJ Funds and/or any of its Affiliates is/are the sole Lender or Lenders under this Agreement, the Borrowers shall pay to the Agent, for the ratable benefit of the Revolving Lenders, a fee (the “Unused Commitment Fee”) per annum in an amount equal to

          (i) the Aggregate Revolving Loan Commitment, less

          (ii) the average daily balance of all Revolving Loans outstanding during the preceding month,

multiplied by one-half of one percent (0.50%). Such fee shall be payable monthly in arrears on the first day of the month following the date hereof and the first day of each month thereafter. The Unused Commitment Fee provided in this subsection 1.9(b) shall accrue at all times from and after the date on which any Person other than EJ Funds and/or any of its Affiliates becomes a Lender under this Agreement until the Revolving Termination Date.

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          (c) Reserved.

          (d) Revolver Reduction Fee. If the Borrowers reduce or terminate the Revolving Loan Commitments, whether voluntarily or involuntarily and whether before or after acceleration of the Obligations, the Borrowers agree to pay to the Agent for the ratable benefit of the Revolving Lenders as liquidated damages and compensation for the costs of being prepared to make funds available hereunder an amount equal to the Applicable Percentage (as defined below) multiplied by the sum of the amount of the reduction of the Revolving Loan Commitments. As used herein, the term “Applicable Percentage” shall mean (x) one-half of one percent (0.50%), in the case of any reduction or termination of the Revolving Loan Commitments made after the Restatement Effective Date but on or prior to January 7, 2010, and (y) zero percent (0%), in the case of any reduction or termination of the Revolving Loan Commitments after January 7, 2010. The Borrowers agree that the Applicable Percentages are a reasonable calculation of the lost profits of the Lenders in view of the difficulties and impracticality of determining actual damages from an early termination of the Revolving Loan Commitments.

     1.10 Payments by the Borrowers.

          (a) All payments (including prepayments) to be made by each Credit Party on account of principal, interest, fees and other amounts required hereunder shall be made without set off, recoupment, counterclaim or deduction of any kind, shall, except as otherwise expressly provided herein, be made to the Agent (for the ratable account of the Persons entitled thereto) at the address for payment specified in the signature page hereof in relation to the Agent (or such other address as the Agent may from time to time specify in accordance with Section 9.2), and shall be made in Dollars and in immediately available funds, no later than 2:00 p.m. (New York time) on the date due. For purposes of computing interest and Fees and determining Availability as of any date, all payments shall be deemed received on the first Business Day following the Business Day on which immediately available funds therefor are received in the Collection Account prior to 2:00 p.m. New York time. Any payment which is received by the Agent later than 2:00 p.m. (New York time) shall be deemed to have been received on the immediately succeeding Business Day and any applicable interest or fee shall continue to accrue. Each Borrower and each other Credit Party hereby irrevocably waives the right to direct the application during the continuance of an Event of Default of any and all payments in respect of any Obligation and any proceeds of Collateral. Each Borrower hereby authorizes the Agent and each Lender to make a Revolving Loan to pay (i) interest, principal, agent fees, Unused Commitment Fees, in each instance on the date due, or (ii) after five (5) days prior notice to the Borrower Representative, other fees, costs or expenses payable by a Borrower or any of its Subsidiaries hereunder or under the other Loan Documents.

          (b) If any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.

          (c) During the continuance of an Event of Default, the Agent may, and shall upon the direction of Required Lenders apply any and all payments in respect of any Obligation

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in accordance with clauses first through sixth below. Notwithstanding any provision herein to the contrary, all amounts collected or received by the Agent after any or all of the Obligations have been accelerated (so long as such acceleration has not been rescinded) and all proceeds received by the Agent as a result of the exercise of its remedies under the Collateral Documents after the occurrence and during the continuance of an Event of Default shall be applied as follows:

     first, to payment of costs and expenses, including Attorney Costs, of the Agent payable or reimbursable by the Credit Parties under the Loan Documents;

     second, to payment of Attorney Costs of Lenders payable or reimbursable by the Borrowers under this Agreement;

     third, to payment of all accrued unpaid interest on the Obligations and fees owed to the Agent and Lenders;

     fourth, to payment of principal of the Obligations;

     fifth, to payment of any other amounts owing constituting Obligations; and

     sixth, any remainder shall be for the account of and paid to whoever may be lawfully entitled thereto.

     In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category and (ii) each of the Lenders or other Persons entitled to payment shall receive an amount equal to its pro rata share of amounts available to be applied pursuant to clauses third, fourth and fifth above.

     1.11 Payments by the Lenders to the Agent; Settlement.

          (a) Agent may, on behalf of Lenders, disburse funds to the Borrowers for Loans requested. Each Lender shall reimburse Agent on demand for all funds disbursed on its behalf by Agent, or if Agent so requests, each Lender will remit to Agent its Commitment Percentage of any Loan before Agent disburses same to the Borrowers. If Agent elects to require that each Lender make funds available to Agent prior to disbursement by Agent to the Borrowers, Agent shall advise each Lender by telephone or fax of the amount of such Lender’s Commitment Percentage of the Loan requested by the Borrower Representative no later than 1:00 p.m. (New York time) on the scheduled Borrowing date applicable thereto, and each such Lender shall pay Agent such Lender’s Commitment Percentage of such requested Loan, in same day funds, by wire transfer to Agent’s account on such scheduled Borrowing date. If any Lender fails to pay its Commitment Percentage within one (1) Business Day after Agent’s demand, Agent shall promptly notify the Borrower Representative, and the Borrowers shall immediately repay such amount to Agent. Any repayment required pursuant to this subsection 1.11(a) shall be without premium or penalty. Nothing in this subsection 1.11(a) or elsewhere in this Agreement or the other Loan Documents, including the remaining provisions of Section 1.11, shall be deemed to require Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that

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Agent or Borrowers may have against any Lender as a result of any default by such Lender hereunder.

          (b) At least once each calendar week or more frequently at Agent’s election (each, a “Settlement Date”), Agent shall advise each Lender by telephone or fax of the amount of such Lender’s Commitment Percentage of principal, interest and Fees paid for the benefit of Lenders with respect to each applicable Loan. Provided that each Lender has funded all payments required to be made by it and funded all purchases of participations required to be funded by it under this Agreement and the other Loan Documents as of such Settlement Date, Agent shall pay to each Lender such Lender’s Commitment Percentage of principal, interest and fees paid by the Borrowers since the previous Settlement Date for the benefit of such Lender on the Loans held by it. Such payments shall be made by wire transfer to such Lender) not later than 2:00 p.m. (New York time) on the next Business Day following each Settlement Date. To the extent that any Lender (a “Non-Funding Lender”) has failed to fund all such payments or failed to fund the purchase of all such participations required to be funded by such Lender pursuant to this Agreement, Agent shall be entitled to set off the funding shortfall against that Non-Funding Lender’s Commitment Percentage of all payments received from the Borrowers.

          (c) Availability of Lender’s Commitment Percentage. Agent may assume that each Revolving Lender will make its Commitment Percentage of each Revolving Loan available to Agent on each Borrowing date. If such Commitment Percentage is not, in fact, paid to Agent by such Revolving Lender when due, Agent will be entitled to recover such amount on demand from such Revolving Lender without setoff, counterclaim or deduction of any kind. If any Revolving Lender fails to pay the amount of its Commitment Percentage forthwith upon Agent’s demand, Agent shall promptly notify the Borrower Representative and the Borrowers shall immediately repay such amount to Agent. Nothing in this subsection 1.11(c) or elsewhere in this Agreement or the other Loan Documents shall be deemed to require Agent to advance funds on behalf of any Revolving Lender or to relieve any Revolving Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrowers may have against any Revolving Lender as a result of any default by such Revolving Lender hereunder. To the extent that Agent advances funds to the Borrowers on behalf of any Revolving Lender and is not reimbursed therefor on the same Business Day as such advance is made, Agent shall be entitled to retain for its account all interest accrued on such advance until reimbursed by the applicable Revolving Lender.

          (d) Return of Payments.

          (i) If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by Agent from the Borrowers and such related payment is not received by Agent, then Agent will be entitled to recover such amount from such Lender on demand without setoff, counterclaim or deduction of any kind.

          (ii) If Agent determines at any time that any amount received by Agent under this Agreement must be returned to any Credit Party or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Loan Document, Agent will not be required to

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distribute any portion thereof to any Lender. In addition, each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to pay to any Borrower or such other Person, without setoff, counterclaim or deduction of any kind.

          (e) Non-Funding Lenders. The failure of any Non-Funding Lender to make any Revolving Loan or any payment required by it hereunder, or to fund any purchase of any participation to be made or funded by it on the date specified therefor shall not relieve any other Lender (each such other Revolving Lender, an “Other Lender”) of its obligations to make such loan or fund the purchase of any such participation on such date, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make a loan, fund the purchase of a participation or make any other payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” or a “Revolving Lender” (or be included in the calculation of “Required Lenders” hereunder) for any voting or consent rights under or with respect to any Loan Document, and Non-Funding Lender shall not be entitled to receive any Unused Commitment Fee.

     1.12 Eligible Accounts. All of the Accounts owned by Borrowers and properly reflected as “Eligible Accounts” in the most recent Borrowing Base Certificate delivered by the Borrower Representative to Agent shall be “Eligible Accounts” for purposes of this Agreement. Agent shall have the right to establish, modify or eliminate Reserves against Eligible Accounts from time to time in its reasonable credit judgment. In addition, Agent reserves the right, at any time and from time to time after the Restatement Effective Date, to adjust any of the applicable criteria, to establish new criteria and to adjust advance rates with respect to Eligible Accounts, in its reasonable credit judgment, subject to the approval of Required Lenders in the case of adjustments, new criteria or changes in advance rates which have the effect of making more credit available.

     1.13 Eligible Inventory. All of the Inventory owned by the Borrowers and properly reflected as “Eligible Inventory” in the most recent Borrowing Base Certificate delivered by the Borrower Representative to Agent shall be “Eligible Inventory”, as applicable for purposes of this Agreement. Agent shall have the right to establish, modify, or eliminate Reserves against Eligible Inventory from time to time in its reasonable credit judgment. In addition, Agent reserves the right, at any time and from time to time after the Restatement Effective Date, to adjust any of the applicable criteria, to establish new criteria and to adjust advance rates with respect to Eligible Inventory in its reasonable credit judgment, subject to the approval of Required Lenders in the case of adjustments, new criteria or changes in advance rates which have the effect of making more credit available.

     1.14 Eligible Equipment. All of the Equipment owned by the Borrowers and properly reflected as “Eligible Equipment” in the most recent Borrowing Base Certificate delivered by the Borrower Representative to Agent shall be “Eligible Equipment”, as applicable for purposes of this Agreement. Agent shall have the right to establish, modify, or eliminate Reserves against Eligible Equipment from time to time in its reasonable credit judgment. In addition, Agent reserves the right, at any time and from time to time after the Restatement Effective Date, to adjust any of the applicable criteria, to establish new criteria and to adjust advance rates with

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respect to Eligible Equipment in its reasonable credit judgment, subject to the approval of Required Lenders in the case of adjustments, new criteria or changes in advance rates which have the effect of making more credit available.

     1.15 Eligible Real Estate. Agent shall have the right to establish, modify, or eliminate Reserves against Eligible Real Estate from time to time in its reasonable credit judgment. In addition, Agent reserves the right, at any time and from time to time after the Restatement Effective Date, to adjust any of the applicable criteria, to establish new criteria and to adjust advance rates with respect to Eligible Real Estate in its reasonable credit judgment, subject to the approval of Required Lenders in the case of adjustments, new criteria or changes in advance rates which have the effect of making more credit available.

     1.16 Incremental Commitments.

          (a) At any time prior to January 7, 2011 Borrowers may, subject to the rights of the Lenders and Agent in their sole and absolute discretion to deny such requests as set forth in this Section 1.16, from time to time, upon written notice to the Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Commitments by an aggregate amount not to exceed Ten Million Dollars ($10,000,000) (the “Incremental Revolver”), such that the Aggregate Revolving Loan Commitments after giving effect to such increase are no greater than Thirty-Five Million Dollars ($35,000,000). Each Lender shall have the right for a period of fifteen (15) days following receipt of such notice, to elect by written notice to the Borrower Representative and the Agent, to commit to establish all or a portion of such Incremental Revolver. Final allocations of the Incremental Revolver shall be determined by the Agent after consultation with Borrowers. No Lender (or any successor thereto) shall have any obligation to establish all or any portion of such Incremental Revolver or to increase any other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to establish all or any portion of such Incremental Revolver shall be made in its sole discretion independently from any other Lender.

          (b) If the Lenders do not commit to establish all or any portion of the Incremental Revolver pursuant to subsection (a) of this Section 1.16, the Agent may in its sole and absolute discretion (i) designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) (an “Additional Lender”) or (ii) deny all or any portion of the requested Incremental Revolver amount.

          (c) In the event that the Borrowers desire to increase the Commitments by the Incremental Revolver and the Lenders and Agent approve such request in their sole and absolute discretion as set forth in Section 1.16(a) and (b), the Borrowers will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Incremental Revolver, which amendment shall set forth any terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrowers, Agent and such Lenders, and shall provide for the issuance of promissory notes to evidence the Incremental Revolver if requested by such Lenders (which notes shall constitute Notes for purposes of this Agreement), such amendment to be in form and substance reasonably acceptable to Agent and consistent with the terms of this Section 1.16(c) and of the other

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provisions of this Agreement. No consent of any Lender not committing to the Incremental Revolver is required to permit the Incremental Revolver contemplated by and otherwise complying with this Section 1.16(c) or the aforesaid amendment to effectuate the Incremental Revolver. This clause (c) shall supersede any provisions contained in this Agreement, including, without limitation, Section 9.1.

          (d) The increase of the Commitments by the Incremental Revolver will be subject to the satisfaction of the following conditions precedent: (i) after giving pro forma effect to such increase, no Default or Event of Default shall have occurred and be continuing and Borrowers will be in pro forma compliance with the covenants set forth in Article VI, (ii) execution of the amendment hereto referenced in clause (c) above by Agent, the Lenders and Additional Lenders providing the Incremental Revolver and the Credit Parties, (iii) delivery to Agent of a certificate of the Secretary or an Assistant Secretary of each Credit Party, in form and substance reasonably satisfactory to Agent, certifying the resolutions of such Person’s board of directors (or equivalent governing body) approving and authorizing the Incremental Revolver (if not previously delivered to Agent), and certifying that none of the organizational documents of such Credit Party delivered to the Agent prior thereto have been modified or altered in any way (or if modifications have occurred, certifying new copies of such organizational documents), (iv) delivery to Agent of an opinion of counsel to the Credit Parties in form and substance and from counsel reasonably satisfactory to the Agent, addressed to Agent and Lenders extending the Incremental Revolver and covering such matters as the Agent may reasonably request, (v) receipt by Agent of such new Notes and reaffirmations of guaranties and Liens, as Agent may reasonably request, together with amendments to any Mortgages reflecting that the Incremental Revolver is secured pari passu with the Revolving Loan, and such endorsements to title policies or additional title searches as the Agent may reasonably request and (vi) the Incremental Revolver shall be provided on the same terms and conditions as the existing Revolving Loan Commitments (including without limitation as to fees, absence of original issue discount, interest rates and maturity).

     1.17 Borrower Representative.

     Each Borrower hereby designates and appoints Akorn as its representative and agent on its behalf (the “Borrower Representative”) for the purposes of issuing Notices of Borrowings, delivering certificates including Compliance Certificates, giving instructions with respect to the disbursement of the proceeds of the Loans, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or Borrowers under the Loan Documents. Borrower Representative hereby accepts such appointment. Agent and each Lender may regard any notice or other communication pursuant to any Loan Document from Borrower Representative as a notice or communication from all Borrowers. Each warranty, covenant, agreement and undertaking made on behalf of a Borrower by Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.

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ARTICLE II.
CONDITIONS PRECEDENT

     2.1 Conditions of Initial Loans.

     (a) The agreement of each Lender under the Original Credit Agreement to make the initial Loans on the Original Closing Date was subject to satisfaction of conditions precedent set forth in Section 2.1 of the Original Credit Agreement. As of the Restatement Effective Date, there is outstanding $[                    ] in principal amount of Loans, plus accrued but unpaid interest in the amount of $[                    ] thereon.

     (b) This Agreement shall be effective on the Restatement Effective Date, subject to satisfaction of the following conditions:

(i) Loan Documents. The Agent shall have received on or before the Restatement Effective Date all of the agreements, documents, instruments and other items set forth on Exhibit 2.1 (the “Closing Checklist”), each in form and substance reasonably satisfactory to the Agent;

(ii) Fees and Expenses. Borrowers shall have paid the Fees required to be paid on the Restatement Effective Date pursuant to the terms of this Agreement and the Fee Letter, and shall have reimbursed Agent for all fees, costs and expenses of closing presented as of the Restatement Effective Date.

(iii) Representations and Warranties. Except as may be waived in writing by the Required Lenders, all representations and warranties by any Credit Party contained herein or in any other Loan Document shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the Restatement Effective Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall be true and correct as of such earlier date).

(iv) No Default or Event of Default. No Default or Event of Default shall have occurred and/or be continuing as of the Restatement Effective Date, or would result after giving effect to the making of any Loan to be made on the Restatement Effective Date.

     2.2 Conditions to All Borrowings. Except as otherwise expressly provided herein, no Lender shall be obligated to fund any Loan, if, as of the date thereof:

          (a) except as may be waived in writing by the Required Lenders, any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect as of such earlier date), and Agent or Required Lenders have determined not to make such Loan as a result of the fact that such warranty or representation is untrue or incorrect;

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          (b) any Default or Event of Default has occurred and is continuing or would result after giving effect to any Loan, and Agent or Required Lenders shall have determined not to make any Loan as a result of that Default or Event of Default;

          (c) after giving effect to any Loan, the aggregate outstanding amount of the Revolving Credit Exposure would exceed the Maximum Revolving Loan Balance (except as provided in Section 1.1(b)); or

          (d) after giving effect to such Loan and the application of the proceeds thereof on the date of funding (including depositing such funds in a Disbursement Account so long as cash in such Disbursement Account would not exceed (x) checks outstanding against such Disbursement Account as of that date, plus (y) amounts necessary to meet minimum balance requirements for such Disbursement Account), the aggregate cash and Cash Equivalents of Borrowers and their Subsidiaries will not exceed $5,000,000.

The request by Borrower Representative and acceptance by Borrowers of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by Borrowers that the conditions in this Section 2.2 have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and Lenders, pursuant to the Collateral Documents.

ARTICLE III.
REPRESENTATIONS AND WARRANTIES

     The Credit Parties, jointly and severally, represent and warrant to the Agent and each Lender that the following are true, correct and complete:

     3.1 Corporate Existence and Power. Each Credit Party and each of their respective Subsidiaries:

          (a) is a corporation, limited liability company or limited partnership, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation, as applicable;

          (b) has the power and authority and all Permits to own its assets, carry on its business and execute, deliver, and perform its obligations under, the Loan Documents and the Related Agreements to which it is a party;

          (c) is duly qualified as a foreign corporation, limited liability company or limited partnership, as applicable, and licensed and in good standing, under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification or license; and

          (d) is in compliance with all Requirements of Law;

except, in each case referred to in clause (c) or clause (d), to the extent that the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

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     3.2 Corporate Authorization; No Contravention.

          (a) The execution, delivery and performance by each of the Credit Parties of this Agreement, and by each of the Credit Parties and each of their respective Subsidiaries of any other Loan Document and Related Agreement to which such Person is party, have been duly authorized by all necessary action, and do not and will not:

          (i) contravene the terms of any of that Person’s Organization Documents;

          (ii) conflict with or result in any material breach or contravention of, or result in the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any Governmental Authority to which such Person or its Property is subject; or

          (iii) violate any material Requirement of Law in any material respect.

          (b) Schedule 3.2 sets forth the authorized Stock and Stock Equivalents of each of the Credit Parties and each of their respective Subsidiaries. All issued and outstanding Stock and Stock Equivalents of each of the Credit Parties and each of their respective Subsidiaries are duly authorized and validly issued, fully paid, non-assessable, and, except with respect to Stock and Stock Equivalents of Akorn, free and clear of all Liens other than, with respect to the Stock and Stock Equivalents of the Borrowers and Subsidiaries of the Borrowers, those in favor of the Agent for the benefit of the Secured Parties. All such securities were issued in compliance with all applicable state and federal laws concerning the issuance of securities. As of the Restatement Effective Date, all of the issued and outstanding Stock and Stock Equivalents of the Subsidiaries of Akorn are owned by the Persons and in the amounts set forth on Schedule 3.2. Except as set forth on Schedule 3.2, there are no pre-emptive or other outstanding rights, options, warrants, conversion rights or other similar agreements or understandings for the purchase or acquisition of any Stock and Stock Equivalents of any Credit Party other than Akorn.

     3.3 Governmental Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance (measured as of each date this representation and warranty is given as if all performance occurred on such date) by, or enforcement against, any Credit Party or any Subsidiary of any Credit Party of this Agreement, any other Loan Document or Related Agreement except (a) for recordings and filings in connection with the Liens granted to the Agent under the Collateral Documents and (b) those obtained or made on or prior to the Original Closing Date.

     3.4 Binding Effect. This Agreement and each other Loan Document and Related Agreement to which any Credit Party or any Subsidiary of any Credit Party is a party constitute the legal, valid and binding obligations of each such Person which is a party thereto, enforceable against such Person in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.

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     3.5 Litigation. Except as specifically disclosed in Schedule 3.5, there are no actions, suits, proceedings, claims or disputes pending, or to the best knowledge of each Credit Party, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, against any Credit Party, any Subsidiary of any Credit Party or any of their respective Properties which:

          (a) purport to affect or pertain to this Agreement, any other Loan Document or Related Agreement, or any of the transactions contemplated hereby or thereby; or

          (b) would reasonably be expected to result in equitable relief or monetary judgment(s), individually or in the aggregate, in excess of $50,000.

No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement, any other Loan Document or any Related Agreement, or directing that the transactions provided for herein or therein not be consummated as herein or therein provided. As of each of the Original Closing Date and the Restatement Effective Date, no Credit Party or any Subsidiary of any Credit Party is the subject of an audit by the IRS or other Governmental Authority or, to each Credit Party’s knowledge, any review or investigation by the IRS or other Governmental Authority concerning the violation or possible violation of any Requirement of Law.

     3.6 No Default. After giving effect to this Agreement, no Default or Event of Default exists or would result from the incurring of any Obligations by any Credit Party or the grant or perfection of the Agent’s Liens on the Collateral or the consummation of the transactions contemplated by the Loan Documents. No Credit Party and no Subsidiary of any Credit Party is in default under or with respect to any Contractual Obligation in any respect which, individually or together with all such defaults, would reasonably be expected to have a Material Adverse Effect.

     3.7 ERISA Compliance. Schedule 3.7 sets forth, as of the Restatement Effective Date, a complete and correct list of, and that separately identifies, (a) all Title IV Plans, (b) all Multiemployer Plans and (c) all material Benefit Plans. Each Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law so qualifies. Except for those that would not, in the aggregate, have a Material Adverse Effect, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Requirements of Law, (y) there are no existing or pending (or to the knowledge of any Credit Party, threatened in writing) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which any Credit Party incurs or otherwise has or could have an obligation or any Liability and (z) no ERISA Event is reasonably expected to occur. On each of the Original Closing Date and the Restatement Effective Date, no ERISA Event has occurred in connection with which obligations and liabilities (contingent or otherwise) remain outstanding. No ERISA Affiliate would have any Withdrawal Liability as a result of a complete withdrawal from any Multiemployer Plan on the date this representation is made.

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     3.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are intended to be and shall be used solely for the purposes set forth in and permitted by Section 4.10, and are intended to be and shall be used in compliance with Section 5.8. No Credit Party and no Subsidiary of any Credit Party is engaged in the business of purchasing or selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock. Proceeds of the Loans shall not be used for the purpose of purchasing or carrying Margin Stock.

     3.9 Title to Properties. Each of the Credit Parties and each of their respective Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real Property, and owns, free of all Liens other than those permitted under Section 5.1, all personal property and valid leasehold interests in all leased personal property, in each instance, necessary or used in the ordinary conduct of their respective businesses. The Property of the Credit Parties and its Subsidiaries is subject to no Liens, other than Permitted Liens. As of each of the Original Closing Date and the Restatement Effective Date, none of the Credit Parties or their Subsidiaries own any Real Estate in fee simple other than the Eligible Real Estate.

     3.10 Taxes. All federal, state, local and foreign income and franchise and other material tax returns, reports and statements (collectively, the “Tax Returns”) required to be filed by any Tax Affiliate have been filed with the appropriate Governmental Authorities in all jurisdictions in which such Tax Returns are required to be filed, all such Tax Returns are true and correct in all material respects, and all taxes, charges and other impositions reflected therein or otherwise due and payable have been paid prior to the date on which any Liability may be added thereto for non-payment thereof except for those contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are maintained on the books of the appropriate Tax Affiliate in accordance with GAAP. As of each of the Original Closing Date and the Restatement Effective Date, no Tax Return is under audit or examination by any Governmental Authority and no notice of such an audit or examination or any assertion of any claim for Taxes has been given or made by any Governmental Authority. Proper and accurate amounts have been withheld by each Tax Affiliate from their respective employees for all periods in full and complete compliance with the tax, social security and unemployment withholding provisions of applicable Requirements of Law and such withholdings have been timely paid to the respective Governmental Authorities. No Tax Affiliate has participated in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b) or has been a member of an affiliated, combined or unitary group other than the group of which a Tax Affiliate is the common parent.

     3.11 Financial Condition.

          (a) Each of (i) the audited consolidated balance sheets of the Borrowers and their Subsidiaries dated December 31, 2008 and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal year ended on that date and (ii) the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries dated June 30, 2009 and the related unaudited consolidated statements of income, shareholders’ equity and cash flows for the six months then ended:

     (x) were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, except as otherwise expressly

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noted therein, subject to, in the case of the unaudited interim financial statements, normal year-end adjustments and the lack of footnote disclosures; and

     (y) present fairly in all material respects the consolidated financial condition of the Borrowers and their Subsidiaries as of the dates thereof and results of operations for the periods covered thereby.

          (b) Since December 31, 2008, except for certain actions taken by GE Capital which limited availability under the Original Credit Agreement, there has been no Material Adverse Effect.

          (c) The Credit Parties and their Subsidiaries have no Indebtedness other than Indebtedness permitted pursuant to Section 5.5 and have no Contingent Obligations other than Contingent Obligations permitted pursuant to Section 5.9.

          (d) All financial performance projections delivered to the Agent represent the Borrowers’ best good faith estimate of future financial performance and are based on assumptions believed by the Borrowers to be fair and reasonable in light of current market conditions, it being acknowledged and agreed by the Agent and Lenders that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by such projections may differ from the projected results.

     3.12 Environmental Matters. Except as set forth on Schedule 3.12, (a) the operations of each Credit Party and each Subsidiary of each Credit Party are and have been in compliance with all applicable Environmental Laws, including obtaining, maintaining and complying with all Permits required by any applicable Environmental Law, other than non-compliances that, in the aggregate, would not have a reasonable likelihood of resulting in Material Environmental Liabilities to all Credit Parties considered as a whole, (b) no Credit Party and no Subsidiary of any Credit Party is party to, and no Credit Party and no Subsidiary of any Credit Party and no real property currently (or to the knowledge of any Credit Party previously) owned, leased, subleased, operated or otherwise occupied by or for any such Person is subject to or the subject of, any Contractual Obligation or any pending (or, to the knowledge of any Credit Party, threatened) order, action, investigation, suit, proceeding, audit, claim, demand, dispute or notice of violation or of potential liability or similar notice relating in any manner to any Environmental Law other than those that, in the aggregate, are not reasonably likely to result in Material Environmental Liabilities to all Credit Parties considered as a whole, (c) no Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities has attached to any property of any Credit Party or any Subsidiary of any Credit Party and, to the knowledge of any Credit Party, no facts, circumstances or conditions exist that could reasonably be expected to result in any such Lien attaching to any such property, (d) no Credit Party and no Subsidiary of any Credit Party has caused or suffered to occur a Release of Hazardous Materials at, to or from any real property of any such Person and each such real property is free of contamination by any Hazardous Materials except for such Release or contamination that could not reasonably be expected to result, in the aggregate, in Material Environmental Liabilities to all Credit Parties considered as a whole, (e) no Credit Party and no Subsidiary of any Credit Party (i) is or has been engaged in, or has permitted any current or former tenant to engage in, operations or (ii) knows of any facts, circumstances or conditions, including receipt of any information request or

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notice of potential responsibility under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §§ 9601 et seq.) or similar Environmental Laws, that, in the aggregate, would have a reasonable likelihood of resulting in Material Environmental Liabilities to all Credit Parties considered as a whole and (f) each Credit Party has made available to Agent copies of all existing environmental reports, reviews and audits and all documents pertaining to actual or potential Environmental Liabilities, in each case to the extent such reports, reviews, audits and documents are in their possession, custody or control.

     3.13 Regulated Entities. None of any Credit Party, any Person controlling any Credit Party, or any Subsidiary of any Credit Party, is (a) an “investment company” within the meaning of the Investment Company Act of 1940 or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other Federal or state statute, rule or regulation limiting its ability to incur Indebtedness, pledge its assets or perform its Obligations under the Loan Documents.

     3.14 Solvency. Both before and after giving effect to (a) the Loans made and issued on or prior to the date this representation and warranty is made or remade, (b) the disbursement of the proceeds of such Loans and (c) the payment and accrual of all transaction costs in connection with the foregoing, both the Credit Parties taken as a whole and each Borrower individually are Solvent.

     3.15 Labor Relations. There are no strikes, work stoppages, slowdowns or lockouts existing, pending (or, to the knowledge of any Credit Party, threatened) against or involving any Credit Party or any Subsidiary of any Credit Party, except for those that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 3.15, as of each of the Original Closing Date and the Restatement Effective Date, (a) there is no collective bargaining or similar agreement with any union, labor organization, works council or similar representative covering any employee of any Credit Party or any Subsidiary of any Credit Party, (b) no petition for certification or election of any such representative is existing or pending with respect to any employee of any Credit Party or any Subsidiary of any Credit Party and (c) no such representative has sought certification or recognition with respect to any employee of any Credit Party or any Subsidiary of any Credit Party.

     3.16 Intellectual Property. Each Credit Party and each Subsidiary of each Credit Party owns, or is licensed to use, all Intellectual Property necessary to conduct its business as currently conducted except for such Intellectual Property the failure of which to own or license would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. To the knowledge of each Credit Party, (a) the conduct and operations of the businesses of each Credit Party and each Subsidiary of each Credit Party does not infringe, misappropriate, dilute, violate or otherwise impair any Intellectual Property owned by any other Person and (b) no other Person has contested any right, title or interest of any Credit Party or any Subsidiary of any Credit Party in, or relating to, any Intellectual Property, other than, in each case, as cannot reasonably be expected to affect the Loan Documents and the transactions contemplated therein and would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

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     3.17 Subsidiaries. As of each of the Original Closing Date and the Restatement Effective Date, no Credit Party has any Subsidiaries or equity investments in any other corporation or entity other than those specifically disclosed in Schedule 3.2.

     3.18 Brokers’ Fees; Transaction Fees. Except as disclosed on Schedule 3.18 and except for fees payable to the Agent and Lenders, none of the Credit Parties or any of their respective Subsidiaries has any obligation to any Person in respect of any finder’s, broker’s or investment banker’s fee in connection with the transactions contemplated hereby.

     3.19 Insurance. Each of the Credit Parties and each of their respective Subsidiaries and their respective Properties are insured with financially sound and reputable insurance companies which are not Affiliates of the Borrowers, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar Properties in localities where such Person operates. A true and complete listing of such insurance, including issuers, coverages and deductibles, has been provided to the Agent.

     3.20 Full Disclosure. None of the representations or warranties made by any Credit Party or any of their Subsidiaries in the Loan Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in each exhibit, report, statement or certificate furnished by or on behalf of any Credit Party or any of their Subsidiaries in connection with the Loan Documents (including the offering and disclosure materials, if any, delivered by or on behalf of any Credit Party to the Lenders prior to the Original Closing Date), when taken as a whole, contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered.

     3.21 Foreign Assets Control Regulations and Anti-Money Laundering.

          (a) OFAC. Neither any Credit Party nor any Subsidiary of any Credit Party (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) is a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

          (b) Patriot Act. Each of the Credit Parties and each of their respective Subsidiaries are in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

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     3.22 FDA Regulatory Compliance.

          (a) Each of the Credit Parties and their Subsidiaries have all Registrations from FDA or other Governmental Authority required to conduct their respective businesses as currently conducted. Each of the Registrations is valid and subsisting in full force and effect. To the knowledge of the Credit Parties and their Subsidiaries, the FDA is not considering limiting, suspending, or revoking such Registrations or changing the marketing classification or labeling of the products of the Credit Parties and their Subsidiaries. To the knowledge of the Credit Parties and their Subsidiaries, there is no false or misleading information or significant omission in any product application or other submission to FDA or any comparable Governmental Authority. The Credit Parties and their Subsidiaries have fulfilled and performed their obligations under each Registration, and no event has occurred or condition or state of facts exists which would constitute a breach or default or would cause revocation or termination of any such Registration. To the knowledge of the Credit Parties and their Subsidiaries, any third party that is a manufacturer or contractor for the Credit Parties and their Subsidiaries is in compliance with all Registrations from the FDA or comparable Governmental Authority insofar as they pertain to the manufacture of product components or products marketed or distributed by the Credit Parties and their Subsidiaries.

          (b) All products developed, manufactured, tested, distributed or marketed by or on behalf of the Credit Parties and their Subsidiaries that are subject to the jurisdiction of the FDA or comparable Governmental Authority have been and are being developed, tested, manufactured, distributed and marketed in compliance with the FDA Laws or any other applicable Requirement of Law, including, without limitation, product approval, good manufacturing practices, labeling, advertising, record-keeping, and adverse event reporting, and have been and are being tested, investigated, distributed, marketed, and sold in compliance with FDA Laws or any other applicable Requirement of Law.

          (c) The Credit Parties and their Subsidiaries are not subject to any obligation arising under an administrative or regulatory action, FDA inspection, FDA warning letter, FDA notice of violation letter, or other notice, response or commitment made to or with the FDA or any comparable Governmental Authority. The Credit Parties and their Subsidiaries have made all notifications, submissions, and reports required by any such obligation, and all such notifications, submissions and reports were true, complete, and correct in all material respects as of the date of submission to FDA or any comparable Governmental Authority.

          (d) No product has been seized, withdrawn, recalled, detained, or subject to a suspension of manufacturing, except as set forth on Schedule 3.22, and there are no facts or circumstances reasonably likely to cause (i) the seizure, denial, withdrawal, recall, detention, public health notification, safety alert or suspension of manufacturing relating to any product; (ii) a change in the labeling of any product; or (iii) a termination, seizure or suspension of marketing of any product. No proceedings in the United States or any other jurisdiction seeking the withdrawal, recall, suspension, import detention, or seizure of any product are pending or threatened against the Credit Parties and their Subsidiaries.

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     3.23 Healthcare Regulatory Compliance.

          (a) None of the Credit Parties or their Subsidiaries, nor any officer, director, managing employee or agent (as those terms are defined in 42 C.F.R. § 1001.1001) thereof, is a party to, or bound by, any order, individual integrity agreement, corporate integrity agreement or other formal or informal agreement with any Governmental Authority concerning compliance with Federal Health Care Program Laws.

          (b) None of the Credit Parties or their Subsidiaries, nor any officer, director, managing employee or agent (as those terms are defined in 42 C.F.R. § 1001.1001) thereof: (i) has been charged with or convicted of any criminal offense relating to the delivery of an item or service under any Federal Health Care Program; (ii) has been debarred, excluded or suspended from participation in any Federal Health Care Program; (iii) has had a civil monetary penalty assessed against it, him or her under Section 1128A of the SSA; (iv) is currently listed on the General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs; or (v) to the knowledge of the Borrowers, is the target or subject of any current or potential investigation relating to any Federal Health Care Program-related offense.

          (c) None of the Credit Parties or their Subsidiaries, nor any officer, director, managing employee or agent (as those terms are defined in 42 C.F.R. § 1001.1001): (i) has engaged in any activity that is in violation of the federal Medicare or federal or state Medicaid statutes, Sections 1128, 1128A, 1128B, 1128C or 1877 of the SSA (42 U.S.C. §§ 1320a-7, 1320a-7a, 1320a-7b, 1320a-7c and 1395nn), the federal TRICARE statute (10 U.S.C. § 1071 et seq.), the civil False Claims Act of 1863 (31 U.S.C. § 3729 et seq.), criminal false claims statutes (e.g., 18 U.S.C. §§ 287 and 1001), the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. § 3801 et seq.), the anti-fraud and related provisions of the Health Insurance Portability and Accountability Act of 1996 (e.g., 18 U.S.C. §§ 1035 and 1347), or related regulations or other federal or state laws and regulations (collectively, “Federal Health Care Program Laws”), including the following:

          (i) knowingly and willfully making or causing to be made a false statement or representation of a material fact in any application for any benefit or payment;

          (ii) knowingly and willfully making or causing to be made a false statement or representation of a material fact for use in determining rights to any benefit or payment;

          (iii) knowingly and willfully soliciting or receiving any remuneration (including any kickback, bribe, or rebate), directly or indirectly, overtly or covertly, in cash or kind (1) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under any Federal Health Care Program; or (2) in return for purchasing, leasing, or ordering, or arranging, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service or item for which payment may be made in whole or in part under any Federal Health Care Program;

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          (iv) knowingly and willfully offering or paying any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to any person to induce such person (1) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal Health Care Program; or (2) to purchase, lease, order or arrange for or recommend purchasing, leasing or ordering any good, facility, service or item for which payment may be made in whole or in part under a Federal Health Care Program; or

          (v) any other activity that violates any state or federal law relating to prohibiting fraudulent, abusive or unlawful practices connected in any way with the provision of health care items or services or the billing for such items or services provided to a beneficiary of any Federal Health Care Program.

          (d) To the knowledge of the Borrowers, no person has filed or has threatened (in writing) to file against any Credit Party or any of their Subsidiaries an action under any federal or state whistleblower statute, including without limitation, under the False Claims Act of 1863 (31 U.S.C. § 3729 et seq.).

     3.24 Reimbursement Coding. To the extent the Credit Parties or any of their Subsidiaries provide to their customers or any other Persons reimbursement coding or billing advice regarding products offered for sale by the Credit Parties and their Subsidiaries, such advice is complete and accurate, conforms to the applicable American Medical Association’s Current Procedural Terminology (CPT), the International Classification of Disease, Ninth Revision, Clinical Modification (ICD 9 CM), and other applicable coding systems, and the advice can be relied upon to create accurate claims for reimbursement by federal, state and commercial payors.

     3.25 HIPAA. Each of the Credit Parties and their Subsidiaries is in compliance, in all material respects, with the provisions of all business associate agreements (as such term is defined by HIPAA) to which it is a party and has implemented adequate policies, procedures and training designed to assure continued compliance and to detect non-compliance.

     3.26 Subordinated Indebtedness. The Subordination Agreement is enforceable against the holders of the Subordinated Indebtedness by the Agent and the Lenders. All Obligations constitute “Senior Debt” under the Subordination Agreement, entitled to all benefits thereof. Borrowers acknowledge that the Agent and each Lender are entering into this Agreement and are extending the Commitments and making the Loans in reliance upon the Subordination Agreement and this Section 3.26.

ARTICLE IV.
AFFIRMATIVE COVENANTS

     Each Credit Party covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:

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     4.1 Financial Statements. Each Credit Party shall maintain, and shall cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit the preparation of financial statements in conformity with GAAP (provided that monthly financial statements shall not be required to have footnote disclosures and are subject to normal year-end adjustments). The Borrowers shall deliver to the Agent and each Lender in electronic form and in detail reasonably satisfactory to the Agent and the Required Lenders:

          (a) as soon as available, but not later than ninety (90) days after the end of each fiscal year, a copy of the audited consolidated and consolidating balance sheets of the Borrowers and each of their Subsidiaries as at the end of such year and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by the unqualified opinion of any “Big Four” or other nationally recognized independent public accounting firm reasonably acceptable to the Agent which report shall state that such consolidated financial statements present fairly in all material respects the financial position for the periods indicated in conformity with GAAP applied on a basis consistent with prior years; and

          (b) as soon as available, but not later than forty-five (45) days after the end of each fiscal quarter of each year, a copy of the unaudited consolidated and consolidating balance sheets of the Borrowers and each of their Subsidiaries, and the related consolidated and consolidating statements of income, shareholders’ equity and cash flows as of the end of such quarter and for the portion of the fiscal year then ended, all certified on behalf of the Borrowers by an appropriate Responsible Officer of the Borrower Representative as being complete and correct, in all material respects, and fairly presenting, in all material respects, in accordance with GAAP, the financial position and the results of operations of the Borrowers and their Subsidiaries, subject to normal year-end adjustments and absence of footnote disclosures.

          (c) as soon as available, but not later than thirty (30) days after the end of each of the first two fiscal months of each fiscal quarter of each year, a copy of the unaudited consolidated and consolidating balance sheets of the Borrowers and each of their Subsidiaries, and the related consolidated and consolidating statements of income, shareholders’ equity and cash flows as of the end of such month and for the portion of the fiscal year then ended, all certified on behalf of the Borrowers by an appropriate Responsible Officer of the Borrower Representative as being complete and correct, in all material respects, and fairly presenting, in all material respects, in accordance with GAAP, the financial position and the results of operations of the Borrowers and their Subsidiaries, subject to normal year-end adjustments and absence of footnote disclosures.

     4.2 Certificates; Other Information. The Borrowers shall furnish in electronic form, to the Agent and each Lender:

          (a) concurrently with each delivery of financial statements pursuant to subsections 4.1(a) and 4.1(b), a management report, in reasonable detail, signed by the chief financial officer of the Borrower Representative, describing the operations and financial condition of the Credit Parties and their Subsidiaries for the quarter and the portion of the fiscal

25

year then ended (or for the fiscal year then ended in the case of annual financial statements) and discussing the reasons for any significant variations from the corresponding periods or projections;

          (b) concurrently with the delivery of the financial statements referred to in subsections 4.1(a), 4.1(b) and 4.1(c) above, (i) a report setting forth in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the most recent projections for the current fiscal year delivered pursuant to subsection 4.2(f), and (ii) a fully and properly completed certificate in the form of Exhibit 4.2(b) (a “Compliance Certificate”) certified on behalf of the Borrowers by a Responsible Officer of the Borrower Representative;

          (c) promptly after the same are sent, copies of all financial statements and reports which any Credit Party sends to its shareholders (except with respect to financial statements and reports sent by Wholly-Owned Subsidiaries of a Borrower to a Borrower) or other equity holders, as applicable, generally and promptly after the same are filed, copies of all financial statements and regular, periodic or special reports which such Person may make to, or file with, the SEC or any successor or similar Governmental Authority;

          (d) as soon as available and in any event within fifteen (15) days after the end of each calendar month, and at such other times as the Agent may reasonably require, a Borrowing Base Certificate, certified on behalf of the Borrowers by a Responsible Officer of the Borrower Representative, setting forth the Borrowing Base as at the end of the most-recently ended fiscal month or as at such other date as the Agent may reasonably require;

          (e) concurrently with the delivery of the Borrowing Base Certificate, with respect to Credit Parties, a summary of Inventory by location and type with a supporting perpetual Inventory report, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

          (f) concurrently with the delivery of the Borrowing Base Certificate, with respect to Credit Parties, a monthly trial balance showing Accounts outstanding aged from invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more, accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

          (g) on a monthly basis or at such more frequent intervals (but no more frequently than once per week unless a Default or Event of Default has occurred and is continuing) as Agent may request from time to time (together with a copy of all or any part of such delivery requested by any Lender in writing after the Restatement Effective Date), collateral reports with respect to Borrowers, including all additions and reductions (cash and non-cash) with respect to Accounts of Borrowers, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion each of which shall be prepared by the Borrower Representative as of the last day of the immediately preceding week or the date 2 days prior to the date of any request;

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          (h) at the time of delivery of each of the monthly or quarterly financial statements delivered pursuant to Section 4.1(b) or Section 4.1(c);

          (i) a reconciliation of the most recent Borrowing Base, general ledger and month-end Inventory reports of Borrowers to Borrowers’ consolidated general ledger and monthly or quarterly financial statements delivered pursuant to Section 4.1(b) or Section 4.1(c), as applicable, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

          (ii) a reconciliation of the perpetual inventory by location to Borrowers’ most recent Borrowing Base Certificate, general ledger and monthly or quarterly financial statements delivered pursuant to Section 4.1(b) or Section 4.1(c), as applicable, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

          (iii) an aging of accounts receivable and accounts payable and a reconciliation of that accounts receivable and accounts payable aging to Borrowers’ general ledger and monthly or quarterly financial statements delivered pursuant to Section 4.1(b) or Section 4.1(c), as applicable, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

          (iv) a reconciliation of the outstanding Loans as set forth in the monthly loan account statement provided by Agent to Borrowers’ general ledger and monthly or quarterly financial statements delivered pursuant to Section 4.1(b) or Section 4.1(c), as applicable, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

          (i) at the time of delivery of the quarterly financial statements delivered pursuant to Section 4.1(b) for each quarterly period, (i) a list of any applications for the registration of any Patent, Trademark or Copyright filed by any Credit Party with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in the prior Fiscal Quarter and (ii) a report listing all new filings, and the status of all existing filings, with the FDA;

          (j) at the time of delivery of each of the annual financial statements delivered pursuant to Section 4.1(a), a listing of government contracts of Borrowers subject to the Federal Assignment of Claims Act of 1940;

          (k) upon the request of the Agent, at any time if an Event of Default shall have occurred and be continuing but otherwise not more often than once a year, the Borrowers will obtain and deliver to the Agent a report of an independent collateral auditor satisfactory to the Agent with respect to the Accounts and Inventory of the Credit Parties;

          (l) as soon as available and in any event no later than the last day of each fiscal year of the Borrower Representative (beginning with the 2009 fiscal year), board-approved projections of the Credit Parties (and their Subsidiaries’) consolidated and consolidating

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financial performance for the forthcoming three fiscal years on a year by year basis, and for the forthcoming fiscal year on a month by month basis;

          (m) promptly upon receipt thereof, copies of any reports submitted by the certified public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or internal control systems of any Credit Party made by such accountants, including any comment letters submitted by such accountants to management of any Credit Party in connection with their services;

          (n) from time to time, if the Agent determines that obtaining appraisals is necessary in order for the Agent or any Lender to comply with applicable laws or regulations, and at any time if a Default or an Event of Default shall have occurred and be continuing, the Agent may, or may require the Borrowers to, in either case at the Borrowers’ expense, obtain appraisals in form and substance and from appraisers reasonably satisfactory to the Agent stating the then current fair market value of all or any portion of the real or personal property of any Credit Party or any Subsidiary of any Credit Party;

          (o) promptly upon request of Agent, copies of any compliance assessment or similar reports conducted by third parties on behalf of the Borrowers; and

          (p) promptly, such additional business, financial, corporate affairs, perfection certificates and other information as the Agent may from time to time reasonably request.

     4.3 Notices. The Borrowers shall notify promptly the Agent and each Lender of each of the following (and in no event later than three (3) Business Days) after a Responsible Officer becoming aware thereof:

          (a) the occurrence or existence of any Default or Event of Default, or any event or circumstance that foreseeably will become a Default or Event of Default pursuant to Sections 7.1(c) or 7.1(l) hereof;

          (b) any breach or non performance of, or any default under, any Contractual Obligation of any Credit Party or any Subsidiary of any Credit Party, or any violation of, or non-compliance with, any Requirement of Law, which would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect, including a description of such breach, non-performance, default, violation or non-compliance and the steps, if any, such Person has taken, is taking or proposes to take in respect thereof;

          (c) the commencement of, or any material development in, any dispute, litigation, investigation, proceeding or suspension which may exist at any time between any Credit Party or any Subsidiary of any Credit Party and any Governmental Authority which would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect or which alleges potential violations of the securities laws, the Federal Health Care Program Laws or the FDA Laws;

          (d) any written notice that the FDA or other similar Governmental Authority is limiting, suspending or revoking any Registration, changing the market classification or

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labeling of the products of the Credit Parties and their Subsidiaries, or considering any of the foregoing;

          (e) any Credit Party or any of its Subsidiaries becoming subject to any administrative or regulatory action, FDA inspection, Form FDA 483 observation, FDA warning letter, FDA notice of violation letter, or other notice, response or commitment made to or with the FDA or any comparable Governmental Authority, or any product of any Credit Party or any of its Subsidiaries being seized, withdrawn, recalled, detained, or subject to a suspension of manufacturing, or the commencement of any proceedings in the United States or any other jurisdiction seeking the withdrawal, recall, suspension, import detention, or seizure of any product are pending or threatened against the Credit Parties and their Subsidiaries;

          (f) the commencement of, or any material development in, any litigation or proceeding affecting any Credit Party or any Subsidiary of any Credit Party (i) in which the amount of damages claimed is $1,000,000 (or its equivalent in another currency or currencies) or more, (ii) in which injunctive or similar relief is sought and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, or (iii) in which the relief sought is an injunction or other stay of the performance of this Agreement, any Loan Document or any Related Agreement;

          (g) (i) the receipt by any Credit Party of any notice of violation of or potential liability or similar notice under Environmental Law, (ii)(A) unpermitted Releases, (B) the existence of any condition that could reasonably be expected to result in violations of or liabilities under, any Environmental Law or (C) the commencement of, or any material change to, any action, investigation, suit, proceeding, audit, claim, demand, dispute alleging a violation of or liability under any Environmental Law, that, for each of clauses (A), (B) and (C) above (and, in the case of clause (C), if adversely determined), in the aggregate for each such clause, could reasonably be expected to result in Environmental Liabilities in excess of $500,000, (iii) the receipt by any Credit Party of notification that any property of any Credit Party is subject to any Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities and (iv) any proposed acquisition or lease of real property, if such acquisition or lease would have a reasonable likelihood of resulting in aggregate Environmental Liabilities in excess of $500,000;

          (h) (i) on or prior to any filing by any ERISA Affiliate of any notice of intent to terminate any Title IV Plan, a copy of such notice and (ii) promptly, and in any event within 10 days, after any officer of any ERISA Affiliate knows that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a notice (which may be made by telephone if promptly confirmed in writing) describing such waiver request and any action that any ERISA Affiliate proposes to take with respect thereto, together with a copy of any notice filed with the PBGC or the IRS pertaining thereto;

          (i) any Material Adverse Effect subsequent to the date of the most recent audited financial statements delivered to the Agent and Lenders pursuant to this Agreement;

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          (j) any material change in accounting policies or financial reporting practices by any Credit Party or any Subsidiary of any Credit Party;

          (k) any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other labor disruption against or involving any Credit Party or any Subsidiary of any Credit Party if the same would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;

          (l) the creation, establishment or acquisition of any Subsidiary;

          (m) the issuance by or to any Credit Party of any Stock or Stock Equivalent; provided, however, that no notice shall be required for issuances of up to 2,500,000 shares of common stock of Akorn, or stock options for such shares, during any calendar year pursuant to the Akorn Stock Plans;

          (n) (i) the creation, or filing with the IRS or any other Governmental Authority, of any Contractual Obligation or other document extending, or having the effect of extending, the period for assessment or collection of any taxes with respect to any Tax Affiliate and (ii) the creation of any Contractual Obligation of any Tax Affiliate, or the receipt of any request directed to any Tax Affiliate, to make any adjustment under Section 481(a) of the Code, by reason of a change in accounting method or otherwise, which would have a Material Adverse Effect;

          (o) the receipt of any notices of default, acceleration or institution of any other right or remedy under the Subordinated Note Documents received from any holder or trustee of, under or with respect to any Subordinated Notes or in connection with the Related Transactions;

          (p) Borrower becomes aware that the Accounts owing by any Account Debtor and its Affiliates (other than AmerisourceBergen Corporation, McKesson Drug Company or Cardinal Health, Inc.) to the Borrowers and their Subsidiaries exceed twenty percent (20%) of all Accounts owing by all Account Debtors as of any date;

          (q) the execution and delivery by any Borrower after the Restatement Effective Date of any agreement or license that grants either Borrower the right to sell or market Inventory, or to use patents, trademarks or other intellectual property of third parties in connection with selling Inventory; and

          (r) the termination or expiration of the MBL Exclusive Distribution Agreement.

Each notice pursuant to this Section shall be in electronic form accompanied by (i) a statement by a Responsible Officer of the Borrower Representative, on behalf of the Borrowers, setting forth details of the occurrence referred to therein, and stating what action the Borrowers or other Person proposes to take with respect thereto and at what time and (ii) with respect to clauses (e), (g) or (n), copies of any response or correspondence related thereto sent or received by the Borrowers. Each notice under subsection 4.3(a) shall describe with particularity any and all clauses or provisions of this Agreement or other Loan Document that have been breached or violated.

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     4.4 Preservation of Corporate Existence, Etc. Each Credit Party shall, and shall cause each of its Subsidiaries to:

          (a) preserve and maintain in full force and effect its organizational existence and good standing under the laws of its jurisdiction of incorporation, organization or formation, as applicable, except, with respect to the Borrowers’ Subsidiaries, in connection with transactions permitted by Section 5.3;

          (b) preserve and maintain in full force and effect all rights, privileges, qualifications, permits, licenses and franchises necessary in the normal conduct of its business except in connection with transactions permitted by Section 5.3 and sales of assets permitted by Section 5.2 and except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;

          (c) use its reasonable efforts, in the Ordinary Course of Business, to preserve its business organization and preserve the goodwill and business of the customers, suppliers and others having material business relations with it; and

          (d) preserve or renew all of its registered trademarks, trade names and service marks, the non preservation of which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

     4.5 Maintenance of Property. Each Credit Party shall maintain, and shall cause each of its Subsidiaries to maintain, and preserve all its Property which is used or useful in its business in good working order and condition, ordinary wear and tear excepted and shall make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

     4.6 Insurance.

          (a) Each Credit Party shall, and shall cause each of its Subsidiaries to, (i) maintain or cause to be maintained in full force and effect all policies of insurance of any kind with respect to the property and businesses of the Credit Parties and such Subsidiaries (including policies of life, fire, theft, product liability, public liability, property damage, other casualty, employee fidelity, workers’ compensation, business interruption and employee health and welfare insurance) with financially sound and reputable insurance companies or associations (in each case that are not Affiliates of Borrowers) of a nature and providing such coverage as is sufficient and as is customarily carried by businesses of the size and character of the business of the Credit Parties and (ii) cause all such insurance relating to any property or business of any Credit Party to name Agent as additional insured or loss payee, as appropriate. All policies of insurance on real and personal property of the Credit Parties will contain an endorsement, in form and substance acceptable to Agent, showing loss payable to Agent (Form CP 12 18 ISO or its equivalent) and extra expense and business interruption endorsements. Such endorsement, or an independent instrument furnished to Agent, will provide that the insurance companies will give Agent at least 30 days’ prior written notice before any such policy or policies of insurance shall be altered or canceled and that no act or default of Borrowers or any other Person shall

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affect the right of Agent to recover under such policy or policies of insurance in case of loss or damage. Each Credit Party shall direct all present and future insurers under its “All Risk” policies of insurance to pay all proceeds payable thereunder directly to Agent. If any insurance proceeds are paid by check, draft or other instrument payable to any Credit Party and Agent jointly, Agent may endorse such Credit Party’s name thereon and do such other things as Agent may deem advisable to reduce the same to cash, and so long as no Default or Event of Default has occurred and is continuing, shall promptly notify Borrower Representative of such receipt and endorsement. Agent reserves the right at any time, upon review of each Credit Party’s risk profile, to require, in Agent’s commercially reasonable discretion, additional forms and limits of insurance.

          (b) Unless the Borrowers provide the Agent with evidence of the insurance coverage required by this Agreement within three Business Days after Agent’s request therefor, the Agent may purchase insurance at the Credit Parties’ expense to protect the Agent’s and Lenders’ interests in the Credit Parties’ and their Subsidiaries’ properties. This insurance may, but need not, protect the Credit Parties’ and their Subsidiaries’ interests. The coverage that the Agent purchases may exclude coverage for claims that any Credit Party or any Subsidiary of any Credit Party makes or any claim that is made against such Credit Party or any Subsidiary in connection with said Property. The Borrowers may later cancel any insurance purchased by the Agent, but only after providing the Agent with evidence that there has been obtained insurance as required by this Agreement. If the Agent purchases insurance, the Credit Parties will be responsible for the costs of that insurance, including interest and any other reasonable charges the Agent may impose in connection with the placement of insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance shall be added to the Obligations. The costs of the insurance may be more than the cost of insurance the Borrowers may be able to obtain on their own.

     4.7 Payment of Obligations. Such Credit Party shall, and shall cause each of its Subsidiaries to, pay, discharge and perform as the same shall become due and payable or required to be performed, all their respective obligations and liabilities, including:

          (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person;

          (b) all lawful claims which, if unpaid, would by law become a Lien upon its Property unless the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the imposition or enforcement of the Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person;

          (c) all Indebtedness having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $200,000, as and when due and payable, but subject to any subordination provisions contained herein and/or in any instrument or agreement evidencing such Indebtedness; and

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          (d) the performance of all obligations under any Contractual Obligation to such Credit Party or any of its Subsidiaries is bound, or to which it or any of its properties is subject, including the Related Agreements, except where the failure to perform would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

     4.8 Compliance with Laws.

          (a) Each Credit Party shall, and shall cause each of its Subsidiaries to, comply with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business, except where the failure to comply would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

          (b) Without limiting the generality of the foregoing, each Credit Party shall, and shall cause each of its Subsidiaries to, comply with, and maintain its real property, whether owned, leased, subleased or otherwise operated or occupied, in compliance with, all applicable Environmental Laws (including by implementing any Remedial Action necessary to achieve such compliance or that is required by orders and directives of any Governmental Authority) except for failures to comply that would not, in the aggregate, have a Material Adverse Effect. Without limiting the foregoing, if an Event of Default is continuing or if Agent at any time has a reasonable basis to believe that there exist violations of Environmental Laws by any Credit Party or any Subsidiary of any Credit Party or that there exist any Environmental Liabilities, in each case, that would have, in the aggregate, a Material Adverse Effect, then each Credit Party shall, promptly upon receipt of request from Agent, cause the performance of, and allow Agent and its Related Persons access to such real property for the purpose of conducting, such environmental audits and assessments, including subsurface sampling of soil and groundwater, and cause the preparation of such reports, in each case as Agent may from time to time reasonably request. Such audits, assessments and reports, to the extent not conducted by Agent or any of its Related Persons, shall be conducted and prepared by reputable environmental consulting firms reasonably acceptable to Agent and shall be in form and substance reasonably acceptable to Agent, and copies thereof shall be provided to Borrower promptly upon request.

          (c) Without limiting the generality of the foregoing, each Credit Party shall, and shall cause each of its Subsidiaries to, comply with all applicable statutes, rules, regulations, standards, guidelines, policies and orders administered or issued by FDA (“FDA Laws”) or any comparable Governmental Authority. All products developed, manufactured, tested, distributed or marketed by or (to the extent within the control of a Credit Party or its Subsidiary) on behalf of the Credit Parties and their Subsidiaries that are subject to the jurisdiction of the FDA or comparable Governmental Authority shall be developed, tested, manufactured, distributed and marketed in compliance with the FDA Laws or any other Requirement of Law, including, without limitation, product approval, good manufacturing practices, labeling, advertising, record-keeping, and adverse event reporting.

     4.9 Inspection of Property and Books and Records. Each Credit Party shall maintain and shall cause each of its Subsidiaries to maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Person. Each Credit

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Party shall, and shall cause each of its Subsidiaries to, with respect to each owned, leased, or controlled property, during normal business hours and upon reasonable advance notice (unless an Event of Default shall have occurred and be continuing, in which event no notice shall be required and Agent shall have access at any and all times during the continuance thereof): (a) provide access to such property in connection with this Agreement to Agent and any of its Related Persons as frequently as Agent determines to be appropriate; (b) permit Agent and any of its Related Persons to inspect, audit and make extracts and copies (or take originals if reasonably necessary) from all of such Credit Party’s books and records; (c) permit Agent and its Related Persons to perform a compliance assessment not more frequently than once in any twelve-month period at Agent’s expense, unless a compliance assessment has otherwise been performed by a third party auditor acceptable to Agent during the most recently ended twelve-month period; and (d) permit Agent and its Related Persons to inspect, review, evaluate and make physical verifications and appraisals of all Accounts, Inventory, Eligible Equipment, Eligible Real Estate and other Collateral in any manner and through any medium that Agent considers advisable, in each instance, at the Credit Parties’ expense provided the Credit Parties shall not be responsible for costs and expenses, unless an Event of Default has occurred and is continuing, more than (i) four (4) times per year with respect to Inventory Appraisals, (ii) four (4) times per year with respect to field examinations of Accounts and Inventory and (iii) one (1) time per year with respect to Equipment Appraisals and Real Estate Appraisals. Any Lender may accompany Agent in connection with any inspection at such Lender’s expense.

     4.10 Use of Proceeds. On or after the Restatement Effective Date, the Borrowers shall use the proceeds of the Loans solely for working capital and other general corporate purposes not in contravention of any Requirement of Law and not in violation of this Agreement.

     4.11 Cash Management Systems. Borrowers will maintain until the Revolving Termination Date, the cash management systems described in Exhibit 4.11 (the “Cash Management Systems”).

     4.12 Landlord Agreements. Each Credit Party shall, and shall cause each of its Domestic Subsidiaries to, use commercially reasonable efforts to obtain a landlord agreement or bailee or mortgagee waivers, as applicable, from the lessor of each leased property, bailee in possession of any Collateral or mortgagee of any owned property with respect to each location where any Collateral is stored or located, which agreement shall be reasonably satisfactory in form and substance to Agent. Agent may, in its discretion, exclude from the Borrowing Base, or impose Reserves with respect to, Inventory at each such location where a landlord agreement or bailee or mortgagee wavier is not obtained.

     4.13 Further Assurances.

          (a) Each Credit Party shall ensure that all written information, exhibits and reports furnished to the Agent or the Lenders, taken as a whole, do not and will not contain any untrue statement of a material fact and do not and will not omit to state any material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, and will promptly disclose to the Agent and the Lenders and correct any defect or error that may be discovered therein or in any Loan Document or in the execution, acknowledgement or recordation thereof.

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          (b) Promptly upon request by the Agent, the Credit Parties shall (and, subject to the limitations hereinafter set forth, shall cause each of their Subsidiaries to) take such additional actions as the Agent may reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement or any other Loan Document, (ii) to subject to the Liens created by any of the Collateral Documents any of the Properties, rights or interests covered by any of the Collateral Documents, (iii) to perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer, preserve, protect and confirm to the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other document executed in connection therewith. Without limiting the generality of the foregoing and except as otherwise approved in writing by Required Lenders, the Credit Parties shall cause each of their Domestic Subsidiaries and, to the extent no 956 Impact exists, Foreign Subsidiaries to guaranty the Obligations and to cause each such Subsidiary to grant to the Agent, for the benefit of the Secured Parties, a security interest in, subject to the limitations hereinafter set forth, all of such Subsidiary’s Property to secure such guaranty. Furthermore and except as otherwise approved in writing by Required Lenders, each Credit Party shall, and shall cause (x) each of its Domestic Subsidiaries to, pledge all of the Stock and Stock Equivalents of each of its Domestic Subsidiaries and First Tier Foreign Subsidiaries (provided that with respect to any First Tier Foreign Subsidiary, if a 956 Impact exists such pledge shall be limited to sixty-five percent (65%) of such Foreign Subsidiary’s outstanding voting Stock and Stock Equivalents and one hundred percent (100%) of such Foreign Subsidiary’s outstanding non-voting Stock and Stock Equivalents) and (y) to the extent no 956 Impact exists, each of its Foreign Subsidiaries to, pledge all of the Stock and Stock Equivalent of each of its Subsidiaries, in each instance, to the Agent, for the benefit of the Secured Parties, to secure the Obligations. In connection with each pledge of Stock and Stock Equivalents, the Credit Parties shall deliver, or cause to be delivered, to the Agent, irrevocable proxies and stock powers and/or assignments, as applicable, duly executed in blank. In the event any Credit Party or any Domestic Subsidiary or, to the extent no 956 Impact exists, any Foreign SubsidiarY of any Credit Party acquires any real Property, simultaneously with such acquisition, such Person shall execute and/or deliver, or cause to be executed and/or delivered, to the Agent, (x) a fully executed Mortgage, in form and substance reasonably satisfactory to the Agent together with an A.L.T.A. lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Agent, in form and substance and in an amount reasonably satisfactory to the Agent insuring that the Mortgage is a valid and enforceable first priority Lien on the respective property, free and clear of all defects, encumbrances and Liens, (y) then current A.L.T.A. surveys, certified to the Agent by a licensed surveyor sufficient to allow the issuer of the lender’s title insurance policy to issue such policy without a survey exception and (z) an environmental site assessment prepared by a qualified firm reasonably acceptable to the Agent, in form and substance satisfactory to the Agent. A “956 Impact” will be deemed to exist to the extent the issuance of a guaranty by, grant of a Lien by, or pledge of greater than two-thirds of the voting Stock and Stock Equivalents of, a Foreign Subsidiary, could reasonably be expected to result in material incremental income tax liability under Section 956 of the Code, taking into account actual anticipated repatriation of funds, foreign tax credits and other relevant factors.

     4.14 Reserved.

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     4.15 Licensor Consents. With respect to any agreements or licenses executed by the Borrowers after the Original Closing Date that would restrict the ability of Agent or its successors and assigns to sell Inventory, or to use any patents, trademarks or other intellectual property in connection with the sale of Inventory, without the consent of the licensor or other third party, the Borrowers shall use their commercially reasonable efforts to obtain written consents (in form reasonably satisfactory to Agent) from such licensors or third parties.

     4.16 Post-Closing Covenants. From and after the Restatement Effective Date, or such later date as Agent may in its discretion agree in writing, the Borrowers shall have complied with their obligations under paragraph (a) of Exhibit 4.11.

     4.17 Board Representation.

          (a) In addition to and not in lieu of board representation rights provided for in Section 2(a) of that certain Stock Purchase Agreement dated November 15, 1990 between Akorn and The John N. Kapoor Trust dated September 20, 1989, for so long as EJ Funds and its Affiliates in the aggregate hold shares of Common Stock representing five percent (5%) or more of the issued and outstanding shares of Common Stock of Akorn, EJ Funds shall have the right to designate or nominate (as applicable) two (2) directors (one of whom, Brian Tambi, has been so designated) to serve on Akorn’s Board of Directors (such Persons designated by EJ Funds, together with any successor designee(s) that may be designated by EJ Funds from time to time, the “EJ Funds Designees”).

          (b) With respect to each shareholder election of directors of Akorn after the Restatement Effective Date, including at each annual or special meeting of shareholders of Akorn at which directors are elected, Akorn shall cause its Board of Directors and management to (i) include each of the EJ Funds Designees in the slate of nominees recommended by the Board of Directors to Akorn’s shareholders for election as directors, (ii) recommend to its shareholders that they vote for the EJ Funds Designees as directors of Akorn, (iii) vote all proxies it may hold in favor of the election of the EJ Funds Designees, except as otherwise directed by any shareholder who submits such proxy and (iv) use its best efforts to cause the EJ Funds Designees to be elected as directors.

          (c) Akorn shall take no action that would cause its Board of Directors to exceed fifteen in number without the consent of EJ Funds.

          (d) Notwithstanding the foregoing, Akorn shall not be required to nominate any EJ Funds Designees that may not, by virtue of any state or federal laws or rules of any exchange upon which Akorn’s securities are listed or traded become a director of Akorn.

          (e) Notwithstanding any provision to the contrary contained herein, the provisions of this Section 4.17 shall be personal to Akorn and shall survive the termination of this Agreement or any assignment of this Agreement by EJ Funds.

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ARTICLE V.
NEGATIVE COVENANTS

     Each Credit Party covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:

     5.1 Limitation on Liens. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon or with respect to any part of its Property, whether now owned or hereafter acquired, other than the following (“Permitted Liens”):

          (a) any Lien existing on the Property of a Credit Party or a Subsidiary of a Credit Party on the Original Closing Date and set forth in Schedule 5.1 securing Indebtedness outstanding on such date and permitted by subsection 5.5(c), including replacement Liens on the Property currently subject to such Liens securing Indebtedness permitted by Section 5.5(c);

          (b) any Lien created under any Loan Document;

          (c) Liens for taxes, fees, assessments or other governmental charges (i) which are not delinquent or remain payable without penalty, or (ii) the non payment of which is permitted by Section 4.7;

          (d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the Ordinary Course of Business which are not delinquent for more than ninety (90) days or remain payable without penalty or which are being contested in good faith and by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto and for which adequate reserves in accordance with GAAP are being maintained;

          (e) Liens (other than any Lien imposed by ERISA) consisting of pledges or deposits required in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other social security legislation or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeals bonds, bids, leases, governmental contract, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or to secure liability to insurance carriers;

          (f) Liens consisting of judgment or judicial attachment liens, provided that the enforcement of such Liens is effectively stayed and all such Liens secure claims in the aggregate at any time outstanding for the Credit Parties and their Subsidiaries not exceeding $500,000;

          (g) easements, rights of way, zoning and other restrictions, minor defects or other irregularities in title, and other similar encumbrances incurred in the Ordinary Course of Business which, either individually or in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the Property subject thereto or interfere in

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any material respect with the ordinary conduct of the businesses of any Credit Party or any Subsidiary of any Credit Party;

          (h) Liens on any Property acquired or held by any Credit Party or any Subsidiary of any Credit Party securing Indebtedness incurred or assumed for the purpose of financing (or refinancing) all or any part of the cost of acquiring such Property and permitted under subsection 5.5(d); provided that (i) any such Lien attaches to such Property concurrently with or within twenty (20) days after the acquisition thereof, (ii) such Lien attaches solely to the Property so acquired in such transaction, and (iii) the principal amount of the debt secured thereby does not exceed 100% of the cost of such Property;

          (i) Liens securing Capital Lease Obligations permitted under subsection 5.5(d);

          (j) any interest or title of a lessor or sublessor under any lease permitted by this Agreement;

          (k) Liens arising from precautionary uniform commercial code financing statements filed under any lease permitted by this Agreement;

          (l) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business not interfering with the business of the Credit Parties or any of their Subsidiaries;

          (m) Liens in favor of collecting banks arising under Section 4-210 of the UCC;

          (n) Liens (including the right of set-off) in favor of a bank or other depository institution arising as a matter of law encumbering deposits;

          (o) Liens arising out of consignment or similar arrangements for the sale of goods entered into by a Borrower or any Subsidiary of a Borrower in the Ordinary Course of Business;

          (p) Liens in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation or exportation of goods in the Ordinary Course of Business; and

          (q) Liens securing the Subordinated Note subject to the Subordination Agreement; and

          (r) Liens securing Borrower’s obligations under the Reimbursement and Warrant Agreement dated as of April 15, 2009 among the Borrowers and the John N. Kapoor Trust dated September 20, 1989.

     5.2 Disposition of Assets. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts

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and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:

          (a) dispositions of inventory, or used, worn out or surplus equipment, all in the Ordinary Course of Business;

          (b) dispositions not otherwise permitted hereunder which are made for fair market value and the mandatory prepayment in the amount of the Net Proceeds of such disposition is made if and to the extent required by Section 1.8; provided, that (i) at the time of any disposition, no Event of Default shall exist or shall result from such disposition, (ii) not less than 50% of the aggregate sales price from such disposition shall be paid in cash, (iii) the aggregate fair market value of all assets so sold by the Credit Parties and their Subsidiaries, together, shall not exceed in any fiscal year $500,000 and (iv) after giving effect to such disposition, the Credit Parties are in compliance on a pro forma basis with the covenants set forth in Article VI, recomputed for the most recent month for which financial statements have been delivered;

          (c) dispositions of Cash Equivalents; and

          (d) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business not interfering with the business of the Credit Parties or any of their Subsidiaries.

     5.3 Consolidations and Mergers. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except upon not less than five (5) Business Days prior written notice to the Agent, (a) any Subsidiary of Akorn may merge with, or dissolve or liquidate into, a Borrower or a Wholly-Owned Subsidiary of a Borrower which is a Domestic Subsidiary, provided that a Borrower or such Wholly-Owned Subsidiary which is a Domestic Subsidiary shall be the continuing or surviving entity and (b) any Foreign Subsidiary may merge with or dissolve or liquidate into another Foreign Subsidiary provided if a First Tier Foreign Subsidiary is a constituent entity in such merger, dissolution or liquidation, such First Tier Foreign Subsidiary shall be the continuing or surviving entity.

     5.4 Loans and Investments. No Credit Party shall and no Credit Party shall suffer or permit any of its Subsidiaries to (i) purchase or acquire, or make any commitment to purchase or acquire any Stock or Stock Equivalents, or any obligations or other securities of, or any interest in, any Person, including the establishment or creation of a Subsidiary, or (ii) make or commit to make any Acquisitions, or any other acquisition of all or substantially all of the assets of another Person, or of any business or division of any Person, including without limitation, by way of merger, consolidation or other combination or (iii) make or commit to make any advance, loan, extension of credit or capital contribution to or any other investment in, any Person including any Affiliate of a Borrower or any Subsidiary of a Borrower (the items described in clauses (i), (ii) and (iii) are referred to as “Investments”), except for:

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          (a) Investments in cash and Cash Equivalents;

          (b) extensions of credit by any Credit Party to any other Credit Party if such extensions of credit are evidenced by notes; such notes shall be pledged to the Agent, for the benefit of the Secured Parties, and have such terms as the Agent may reasonably require;

          (c) Investments received as the non-cash portion of consideration received in connection with transactions permitted pursuant to Section 5.2(b);

          (d) Investments acquired in connection with the settlement of delinquent Accounts in the Ordinary Course of Business or in connection with the bankruptcy or reorganization of suppliers or customers;

          (e) transfers of Inventory by any Borrower to any other Borrower;

          (f) contributions to the capital of any Wholly-Owned Subsidiary which is, or within 15 Business Days after such capital contribution becomes, a Credit Party; and

          (g) Investments existing on the Original Closing Date and set forth on Schedule 5.4.

     5.5 Limitation on Indebtedness. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, create, incur, assume, permit to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:

          (a) Indebtedness incurred pursuant to this Agreement;

          (b) Indebtedness consisting of Contingent Obligations described in clause (i) of the definition thereof and permitted pursuant to Section 5.9;

          (c) Indebtedness existing on the Original Closing Date and set forth in Schedule 5.5 including extensions and refinancings thereof which do not increase the principal amount of such Indebtedness as of the date of such extension or refinancing;

          (d) Indebtedness not to exceed $3,000,000 in the aggregate at any time outstanding, consisting of Capital Lease Obligations or secured by Liens permitted by subsection 5.1(h);

          (e) unsecured intercompany Indebtedness permitted pursuant to subsection 5.4(b); and

          (f) Subordinated Indebtedness evidenced by the Subordinated Note in an aggregate principal amount not to exceed the sum of $5,000,000 plus all accrued interest added thereto in accordance with the terms of the Subordinated Note.

     5.6 Transactions with Affiliates. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, enter into any transaction with any Affiliate of a Borrower or of any such Subsidiary, except:

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          (a) this Agreement and as expressly permitted by this Agreement;

          (b) in the Ordinary Course of Business and pursuant to the reasonable requirements of the business of such Credit Party or such Subsidiary provided that, in the case of this clause (b), such transaction is upon fair and reasonable terms no less favorable to such Credit Party or such Subsidiary than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a Borrower or such Subsidiary and which are disclosed in writing to the Agent; or

          (c) issuances of Stock or Stock Equivalents of Akorn.

     5.7 Reserved.

     5.8 Use of Proceeds. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, use any portion of the Loan proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness of any Credit Party or others incurred to purchase or carry Margin Stock, or otherwise in any manner which is in contravention of any Requirement of Law or in violation of this Agreement.

     5.9 Contingent Obligations. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Contingent Obligations except in respect of the Obligations and except:

          (a) endorsements for collection or deposit in the Ordinary Course of Business;

          (b) Rate Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculation with the Agent’s prior written consent, not to be unreasonably withheld;

          (c) Contingent Obligations of the Credit Parties and their Subsidiaries existing as of the Original Closing Date and listed in Schedule 5.9, including extension and renewals thereof which do not increase the amount of such Contingent Obligations as of the date of such extension or renewal;

          (d) Contingent Obligations incurred in the Ordinary Course of Business with respect to surety and appeal bonds, performance bonds and other similar obligations;

          (e) Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to the Agent title insurance policies;

          (f) Contingent Obligations arising with respect to customary indemnification obligations in favor of (i) sellers in connection with Acquisitions permitted hereunder, (ii) purchasers in connection with dispositions permitted under subsection 5.2(b), (iii) directors and officers of any Borrower or its Subsidiaries and (iv) other parties to transactions entered into in the Ordinary Course of Business with any Credit Party or any of their Subsidiaries; and

          (g) Contingent Obligations arising under guarantees made in the Ordinary Course of Business of obligations of any Credit Party, which obligations are otherwise permitted

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hereunder; provided that if such obligation is subordinated to the Obligations, such guarantee shall be subordinated to the same extent.

     5.10 Compliance with ERISA. No ERISA Affiliate shall cause or suffer to exist (a) any event that could result in the imposition of a Lien on any asset of a Credit Party or a Subsidiary of a Credit Party with respect to any Title IV Plan or Multiemployer Plan or (b) any other ERISA Event, that would, in the aggregate, have a Material Adverse Effect. No Credit Party shall cause or suffer to exist any event that could result in the imposition of a Lien with respect to any Benefit Plan.

     5.11 Restricted Payments. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, (i) declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any Stock or Stock Equivalent, (ii) purchase, redeem or otherwise acquire for value any Stock or Stock Equivalent now or hereafter outstanding or (iii) make any payment or prepayment of principal of, premium, if any, interest, fees, redemption, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, Subordinated Indebtedness (the items described in clauses (i), (ii) and (iii) above are referred to as “Restricted Payments”); except that:

          (a) any Wholly-Owned Subsidiary of a Borrower may declare and pay dividends to a Borrower or any Wholly-Owned Subsidiary of a Borrower

          (b) Akorn may declare and make dividend payments or other distributions payable solely in its Stock or Stock Equivalents; and

          (c) Akorn may repay the Subordinated Note and all accrued interest thereon so long as (i) no Default or Event of Default shall have occurred and be continuing, or would arise as a result of such repayment and (ii) such repayment occurs on or before the stated maturity date of the Subordinated Note.

     5.12 Change in Business. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, engage in any material line of business substantially different from those lines of business carried on by it on the date hereof.

     5.13 Change in Structure. Except as expressly permitted under Section 5.3, no Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, make any material changes in its equity capital structure (including in the terms of its outstanding Stock or Stock Equivalents), or amend any of its Organization Documents in any material respect or in any respect adverse to the Agent or Lenders.

     5.14 Accounting Changes. No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, make any significant change in accounting treatment or reporting practices, except as required by GAAP, or change the fiscal year or method for determining fiscal quarters of any Credit Party or of any consolidated Subsidiary of any Credit Party.

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     5.15 Amendments to Material Agreements and Subordinated Indebtedness.

          (a) No Credit Party shall and no Credit Party shall permit any of its Subsidiaries, to (i) amend, supplement, waive or otherwise modify any provision of, any Material Agreement (other than the Subordinated Note Documents) in a manner adverse to the Agent or Lenders or which would reasonably be expected to have a Material Adverse Effect, or (ii) take or fail to take any action under any Material Agreement that would reasonably be expected to have a Material Adverse Effect.

          (b) No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries directly or indirectly to, change or amend the terms of any (i) Subordinated Note Documents except to the extent permitted by the Subordination Agreement or (ii) any other Subordinated Indebtedness if, with respect to this clause (ii), the effect of such amendment is to: (A) increase the interest rate on such Indebtedness; (B) shorten the dates upon which payments of principal or interest are due on such Indebtedness; (C) add or change in a manner adverse to any Borrower any event of default or add or make more restrictive any covenant with respect to such Indebtedness; (D) change in a manner adverse to any Borrower the prepayment provisions of such Indebtedness; (E) change the subordination provisions thereof (or the subordination terms of any guaranty thereof); or (F) change or amend any other term if such change or amendment would materially increase the obligations of the obligor or confer additional material rights on the holder of such Indebtedness in a manner adverse to any Borrower, any of their Subsidiaries, the Agent or Lenders.

     5.16 No Negative Pledges. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual restriction or encumbrance of any kind on the ability of any such Subsidiary to pay dividends or make any other distribution on any of such Subsidiary’s Stock or Stock Equivalents or to pay fees, including management fees, or make other payments and distributions to a Borrower or any of its Subsidiaries. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, directly or indirectly, enter into, assume or become subject to any Contractual Obligation prohibiting or otherwise restricting the existence of any Lien upon any of its assets in favor of the Agent, whether now owned or hereafter acquired except (i) in connection with any document or instrument governing Liens permitted pursuant to subsections 5.1(h) and (i) provided that any such restriction contained therein relates only to the asset or assets subject to such permitted Liens and (ii) customary provisions in leases and other contracts restricting the assignment thereof.

     5.17 OFAC. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to (i) become a person whose property or interests in property are blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079(2001), (ii) engage in any dealings or transactions prohibited by Section 2 of such executive order, or be otherwise associated with any such person in any manner violative of Section 2, or (iii) otherwise become a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other OFAC regulation or executive order.

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     5.18 Reserved.

     5.19 Sale-Leasebacks. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, engage in a sale leaseback, synthetic lease or similar transaction involving any of its assets.

     5.20 Hazardous Materials. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, cause or suffer to exist any Release of any Hazardous Material at, to or from any real property owned, leased, subleased or otherwise operated or occupied by any Credit Party or any Subsidiary of any Credit Party that would violate any Environmental Law, form the basis for any Environmental Liabilities or otherwise adversely affect the value or marketability of any real property (whether or not owned by any Credit Party or any Subsidiary of any Credit Party), other than such violations, Environmental Liabilities and effects that would not, in the aggregate, have a Material Adverse Effect.

ARTICLE VI.
FINANCIAL COVENANTS

     Commencing on April 1, 2010, each Credit Party covenants and agrees that:

     6.1 Fixed Charge Coverage Ratio. The Credit Parties shall not permit the Fixed Charge Coverage Ratio for the twelve month period ending on any date set forth below to be less than the minimum ratio set forth in the table below opposite such date:

Date	Minimum Fixed Charge Ratio
June 30, 2010, and September 30, 2010	1.10:1.00
December 31, 2010, March 31, 2011, June 30, 2011, and September 30, 2011	1.20:1.00
Last day of each fiscal quarter thereafter	1.25:1.00

     “Fixed Charge Coverage Ratio” shall be calculated in the manner set forth in Exhibit 4.2(b).

     6.2 Minimum EBITDA. The Credit Parties shall not permit EBITDA for the twelve month period ending on any other date set forth below to be less than the minimum amount set forth in the table below opposite such date:

Date	Minimum EBITDA
June 30, 2010	$15,681,000
September 30, 2010	$19,402,000
December 31, 2010	$21,840,000
March 31, 2011	$24,297,000
June 30, 2011	$27,368,000
September 30, 2011	$31,054,000
December 31, 2011	$34,125,000
March 31, 2012	$33,846,000

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Date	Minimum EBITDA
June 30, 2012	$33,497,000
September 30, 2012	$33,079,000
December 31, 2012	$32,730,000

     “EBITDA” shall be calculated in the manner set forth in Exhibit 4.2(b).

     6.3 Minimum Liquidity. The Credit Parties shall maintain Liquidity in the aggregate of at least $2,500,000 at all times on or after April 1, 2010. “Liquidity” shall be calculated in the manner set forth in Exhibit 4.2(b).

     6.4 Capital Expenditures. The Credit Parties shall not make or commit to make Capital Expenditures for any fiscal year (or shorter period) set forth below in excess of the amount set forth in the table below with respect to such fiscal year (or shorter period):

Fiscal Period	Capital Expenditure Limitation
2010	$7,500,000
2011	$5,000,000
2012	$5,000,000

provided, however, in the event the Credit Parties do not expend the entire Capital Expenditure Limitation in any fiscal year, the Credit Parties may carry forward the unutilized portion to the immediately succeeding fiscal year. All Capital Expenditures shall first be applied to reduce the applicable Capital Expenditure Limitation and then to reduce the carry-forward from the previous fiscal year, if any. “Capital Expenditures” shall be calculated in the manner set forth in Exhibit 4.2(b).

ARTICLE VII.
EVENTS OF DEFAULT

     7.1 Event of Default. Any of the following shall constitute an “Event of Default”:

          (a) Non-Payment. Any Credit Party fails (i) to pay when and as required to be paid herein, any amount of principal of any Loan, including after maturity of the Loans, or (ii) to pay within three (3) Business Days after the same shall become due, interest on any Loan, any fee or any other amount payable hereunder or pursuant to any other Loan Document; or

          (b) Representation or Warranty. Any representation, warranty or certification by or on behalf of any Credit Party or any of its Subsidiaries made or deemed made herein, in any other Loan Document, or which is contained in any certificate, document or financial or other statement by any such Person, or their respective Responsible Officers, furnished at any time under this Agreement, or in or under any other Loan Document, shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or

          (c) Specific Defaults. Any Credit Party fails to perform or observe any term, covenant or agreement contained in any of Sections 4.1, 4.2(b), 4.2(d), 4.3(a), 4.3(r), 4.6, 4.9, 4.14, 4.16, Article V or Article VI hereof or the Fee Letter; or

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          (d) Other Defaults. Any Credit Party or Subsidiary of any Credit Party fails to perform or observe any other term, covenant or agreement contained in this Agreement or any other Loan Document, and such default shall continue unremedied for a period of thirty (30) days after the earlier to occur of (i) the date upon which a Responsible Officer of any Credit Party becomes aware of such default and (ii) the date upon which written notice thereof is given to the Borrower Representative by the Agent or Required Lenders; or

          (e) Cross Default. Any Credit Party or any Subsidiary of any Credit Party (i) fails to make any payment in respect of any Indebtedness (other than the Obligations) or Contingent Obligation having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $200,000 when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto on the date of such failure; or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Contingent Obligation, if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable prior to its stated maturity (without regard to any subordination terms with respect thereto), or such Contingent Obligation to become payable or cash collateral in respect thereof to be demanded; or

          (f) Insolvency; Voluntary Proceedings. A Borrower, individually, ceases or fails, or the Credit Parties and their Subsidiaries on a consolidated basis, cease or fail, to be Solvent, or any Credit Party or any Subsidiary of any Credit Party: (i) generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to effectuate or authorize any of the foregoing; or

          (g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced or filed against any Credit Party or any Subsidiary of any Credit Party, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of any such Person’s Properties, and any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy; (ii) any Credit Party or any of its Subsidiary of any Credit Party admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) any Credit Party or any Subsidiary of any Credit Party acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial portion of its Property or business; or

          (h) Monetary Judgments. One or more judgments, non-interlocutory orders, decrees or arbitration awards shall be entered against any one or more of the Credit Parties or any of their respective Subsidiaries involving in the aggregate a liability (to the extent not

46

covered by independent third-party insurance) as to any single or related series of transactions, incidents or conditions, of $500,000 or more, and the same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of thirty (30) consecutive days after the entry thereof; or

          (i) Non Monetary Judgments. One or more non-monetary judgments, orders or decrees shall be rendered against any one or more of the Credit Parties or any of their respective Subsidiaries which has or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

          (j) Collateral. Any material provision of any Loan Document shall for any reason cease to be valid and binding on or enforceable against any Credit Party or any Subsidiary of any Credit Party thereto or any Credit Party or any Subsidiary of any Credit Party shall so state in writing or bring an action to limit its obligations or liabilities thereunder; or any Collateral Document shall for any reason (other than pursuant to the terms thereof) cease to create a valid security interest in the Collateral purported to be covered thereby or such security interest shall for any reason (other than the failure of the Agent to take any action within its control) cease to be a perfected and first priority security interest subject only to Permitted Liens; or

          (k) Control. Any of the following occurs: (a) any person or group of persons (within the meaning of the Exchange Act), excluding Dr. John N. Kapoor, the Kapoor Trust and Pequot Capital, shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of 30% or more of the issued and outstanding shares of capital Stock of Akorn having the right to vote for the election of directors of Akorn under ordinary circumstances; (b) either (i) Dr. John N. Kapoor and the Kapoor Trust together or (ii) Pequot Capital shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of 50% or more of the issued and outstanding shares of capital Stock of Akorn having the right to vote for the election of directors of Akorn under ordinary circumstances; (c) during any period of twelve consecutive calendar months, individuals who at the beginning of such period constituted the board of directors of Akorn (together with any new directors whose election by the board of directors of Akorn or whose nomination for election by the Stockholders of Akorn was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office; or (d) any Borrower ceases to own and control all of the economic and voting rights associated with all of the outstanding capital Stock of any of its Subsidiaries; or

          (l) Government Authorities. FDA or any other Governmental Authority initiates enforcement action against any Credit Party or any Subsidiary of any Credit Party that causes such Credit Party or Subsidiary to discontinue marketing any of its products and could reasonably be expected to have a Material Adverse Effect; the FDA or any other Governmental Authority issues a warning letter with respect to any manufacturing issue to any Credit Party or any Subsidiary of any Credit Party which could reasonably be expected to have a Material

47

Adverse Effect; or any Credit Party or any Subsidiary of any Credit Party conducts a recall which could reasonably be expected to have a Material Adverse Effect; or any Credit Party or any of its Subsidiaries enters into a settlement agreement with a Governmental Authority that results in aggregate liability as to any single or related series of transactions, incidents or conditions, of $750,000 or more, or could reasonably be expected to have a Material Adverse Effect; or

          (m) Material Adverse Effect. A Material Adverse Effect occurs; or

          (n) Invalidity of Subordination Provisions. The subordination provisions of the Subordination Agreement or any agreement or instrument governing any Subordinated Indebtedness shall for any reason be revoked or invalidated, or otherwise cease to be in full force and effect, or any Person shall contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder, or the Obligations, for any reason shall not have the priority contemplated by this Agreement or such subordination provisions.

     7.2 Remedies. Upon the occurrence and during the continuance of any Event of Default, the Agent may, and shall at the request of the Required Lenders:

          (a) declare all or any portion of the Commitment of each Lender to make Loans to be terminated, whereupon such Commitments shall forthwith be terminated;

          (b) declare all or any portion of the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable; without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Credit Party; and/or

          (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;

provided, however, that upon the occurrence of any event specified in subsections 7.1(f) or 7.1(g) above (in the case of clause (i) of subsection 7.1(g) upon the expiration of the sixty (60) day period mentioned therein), the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Agent, any Lender.

     7.3 Rights Not Exclusive. The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.

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ARTICLE VIII.
THE AGENT

     8.1 Appointment and Duties.

          (a) Appointment of Agent. Each Lender hereby appoints EJ Funds (together with any successor Agent pursuant to Section 8.9) as the Agent hereunder and authorizes the Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.

          (b) Duties as Collateral and Disbursing Agent. Without limiting the generality of clause (a) above, the Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any proceeding described in subsection 7.1(g) or any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Secured Party is hereby authorized to make such payment to the Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in subsection 7.1(g) or any other bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Person), (iii) act as collateral agent for each Secured Party for purposes of the perfection of all Liens created by such agreements and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to the Agent and the other Secured Parties with respect to the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that the Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any deposit account maintained by a Credit Party with, and cash and Cash Equivalents held by, such Lender and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to the Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed.

          (c) Limited Duties. Under the Loan Documents, the Agent (i) is acting solely on behalf of the Lenders (except to the limited extent provided in subsection 1.4(b) with respect to the Register), with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to the Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (iii) shall have

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no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender hereby waives and agrees not to assert any claim against the Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through (iii) above.

     8.2 Binding Effect. Each Lender agrees that (i) any action taken by the Agent or the Required Lenders (or, if expressly required hereby, a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii) any action taken by the Agent in reliance upon the instructions of Required Lenders (or, where so required, such greater proportion) and (iii) the exercise by the Agent or the Required Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Secured Parties.

     8.3 Use of Discretion.

          (a) No Action without Instructions. The Agent shall not be required to exercise any discretion or take, or to omit to take, any action, including with respect to enforcement or collection, except any action it is required to take or omit to take (i) under any Loan Document or (ii) pursuant to instructions from the Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders).

          (b) Right Not to Follow Certain Instructions. Notwithstanding clause (a) above, the Agent shall not be required to take, or to omit to take, any action (i) unless, upon demand, the Agent receives an indemnification satisfactory to it from the Lenders (or, to the extent applicable and acceptable to the Agent, any other Person) against all Liabilities that, by reason of such action or omission, may be imposed on, incurred by or asserted against the Agent or any Related Person thereof or (ii) that is, in the opinion of the Agent or its counsel, contrary to any Loan Document or applicable Requirement of Law.

     8.4 Delegation of Rights and Duties. The Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Secured Party). Any such Person shall benefit from this Article VIII to the extent provided by the Agent.

     8.5 Reliance and Liability.

          (a) The Agent may, without incurring any liability hereunder, (i) treat the payee of any Note as its holder until such Note has been assigned in accordance with Section 9.9, (ii) rely on the Register to the extent set forth in Section 1.4, (iii) consult with any of its Related Persons and, whether or not selected by it, any other advisors, accountants and other experts (including advisors to, and accountants and experts engaged by, any Credit Party) and (iv) rely and act upon any document and information (including those transmitted by Electronic Transmission) and any telephone message or conversation, in each case believed by it to be genuine and transmitted, signed or otherwise authenticated by the appropriate parties.

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          (b) None of the Agent and its Related Persons shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Loan Document, and each Lender, each Borrower and each other Credit Party hereby waive and shall not assert (and each of the Borrowers shall cause each other Credit Party to waive and agree not to assert) any right, claim or cause of action based thereon, except to the extent of liabilities resulting primarily from the gross negligence or willful misconduct of the Agent or, as the case may be, such Related Person (each as determined in a final, non-appealable judgment by a court of competent jurisdiction) in connection with the duties expressly set forth herein. Without limiting the foregoing, the Agent:

          (i) shall not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of the Required Lenders or for the actions or omissions of any of its Related Persons selected with reasonable care (other than employees, officers and directors of the Agent, when acting on behalf of the Agent);

          (ii) shall not be responsible to any Lender or other Person for the due execution, legality, validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under or in connection with, any Loan Document;

          (iii) makes no warranty or representation, and shall not be responsible, to any Lender or other Person for any statement, document, information, representation or warranty made or furnished by or on behalf of any Credit Party or any Related Person of any Credit Party in connection with any Loan Document or any transaction contemplated therein or any other document or information with respect to any Credit Party, whether or not transmitted or (except for documents expressly required under any Loan Document to be transmitted to the Lenders) omitted to be transmitted by the Agent, including as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed by the Agent in connection with the Loan Documents; and

          (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Loan Document, whether any condition set forth in any Loan Document is satisfied or waived, as to the financial condition of any Credit Party or as to the existence or continuation or possible occurrence or continuation of any Default or Event of Default and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from the Borrower Representative or any Lender describing such Default or Event of Default clearly labeled “notice of default” (in which case the Agent shall promptly give notice of such receipt to all Lenders);

and, for each of the items set forth in clauses (i) through (iv) above, each Lender and the Borrowers hereby waive and agree not to assert (and each of the Borrowers shall cause each other Credit Party to waive and agree not to assert) any right, claim or cause of action it might have against the Agent based thereon.

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     8.6 Agent Individually. The Agent and its Affiliates may make loans and other extensions of credit to, acquire Stock and Stock Equivalents of, engage in any kind of business with, any Credit Party or Affiliate thereof as though it were not acting as Agent and may receive separate fees and other payments therefor. To the extent the Agent or any of its Affiliates makes any Loan or otherwise becomes a Lender hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Lender and the terms “Lender”, “Revolving Lender”, “Required Lender” and any similar terms shall, except where otherwise expressly provided in any Loan Document, include, without limitation, the Agent or such Affiliate, as the case may be, in its individual capacity as Lender, Revolving Lender or as one of the Required Lenders.

     8.7 Lender Credit Decision. Each Lender acknowledges that it shall, independently and without reliance upon the Agent, any Lender or any of their Related Persons or upon any document (including any offering and disclosure materials in connection with the syndication of the Loans) solely or in part because such document was transmitted by the Agent or any of its Related Persons, conduct its own independent investigation of the financial condition and affairs of each Credit Party and make and continue to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate. Except for documents expressly required by any Loan Document to be transmitted by the Agent to the Lenders, the Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Credit Party or any Affiliate of any Credit Party that may come in to the possession of the Agent or any of its Related Persons.

     8.8 Expenses; Indemnities.

          (a) Each Lender agrees to reimburse the Agent and each of its Related Persons (to the extent not reimbursed by any Credit Party) promptly upon demand, severably and ratably, of any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors and Other Taxes paid in the name of, or on behalf of, any Credit Party) that may be incurred by the Agent or any of its Related Persons in connection with the preparation, syndication, execution, delivery, administration, modification, consent, waiver or enforcement (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding or otherwise) of, or legal advice in respect of its rights or responsibilities under, any Loan Document.

          (b) Each Lender further agrees to indemnify the Agent and each of its Related Persons (to the extent not reimbursed by any Credit Party), severably and ratably, from and against Liabilities (including taxes, interests and penalties imposed for not properly withholding or backup withholding on payments made to on or for the account of any Lender) that may be imposed on, incurred by or asserted against the Agent or any of its Related Persons in any matter relating to or arising out of, in connection with or as a result of any Loan Document, any Related Document or any other act, event or transaction related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by the Agent or any of its Related Persons under or with respect to any of the foregoing; provided, however, that no Lender

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shall be liable to the Agent or any of its Related Persons to the extent such liability has resulted primarily from the gross negligence or willful misconduct of the Agent or, as the case may be, such Related Person, as determined by a court of competent jurisdiction in a final non-appealable judgment or order.

     8.9 Resignation of Agent.

          (a) The Agent may resign at any time by delivering notice of such resignation to the Lenders and the Borrower Representative, effective on the date set forth in such notice or, if no such date is set forth therein, upon the date such notice shall be effective. If the Agent delivers any such notice, the Required Lenders shall have the right to appoint a successor Agent. If, within 30 days after the retiring Agent having given notice of resignation, no successor Agent has been appointed by the Required Lenders that has accepted such appointment, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent from among the Lenders. Each appointment under this clause (a) shall be subject to the prior consent of the Borrowers, which may not be unreasonably withheld but shall not be required during the continuance of an Event of Default.

          (b) Effective immediately upon its resignation, (i) the retiring Agent shall be discharged from its duties and obligations under the Loan Documents, (ii) the Lenders shall assume and perform all of the duties of the Agent until a successor Agent shall have accepted a valid appointment hereunder, (iii) the retiring Agent and its Related Persons shall no longer have the benefit of any provision of any Loan Document other than with respect to any actions taken or omitted to be taken while such retiring Agent was, or because such Agent had been, validly acting as Agent under the Loan Documents and (iv) subject to its rights under Section 8.3, the retiring Agent shall take such action as may be reasonably necessary to assign to the successor Agent its rights as Agent under the Loan Documents. Effective immediately upon its acceptance of a valid appointment as Agent, a successor Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Agent under the Loan Documents.

          (c) Reserved.

     8.10 Release of Collateral or Guarantors. Each Lender hereby consents to the release and hereby directs the Agent to release (or, in the case of clause (b)(ii) below, release or subordinate) the following:

          (a) any Subsidiary of a Borrower from its guaranty of any Obligation if all of the Stock and Stock Equivalents of such Subsidiary owned by any Credit Party are sold or transferred in a transaction permitted under the Loan Documents (including pursuant to a waiver or consent), to the extent that, after giving effect to such transaction, such Subsidiary would not be required to guaranty any Obligations pursuant to Section 4.13; and

          (b) any Lien held by the Agent for the benefit of the Secured Parties against (i) any Collateral that is sold, transferred, conveyed or otherwise disposed of by a Credit Party in a transaction permitted by the Loan Documents (including pursuant to a valid waiver or consent), to the extent all Liens required to be granted in such Collateral pursuant to Section 4.13 after giving effect to such transaction have been granted, (ii) any property subject to a Lien permitted

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hereunder in reliance upon subsection 5.1(h) or (i) and (iii) all of the Collateral and all Credit Parties, upon (A) termination of the Revolving Loan Commitments, (B) payment and satisfaction in full of all Loans and all other Obligations under the Loan Documents (other than surviving indemnity obligations as to which no claim is then pending) and all Obligations arising under Secured Rate Contracts, that the Agent has theretofore been notified in writing by the holder of such Obligation are then due and payable, (C) deposit of cash collateral with respect to all contingent Obligations in amounts and on terms and conditions and with parties satisfactory to the Agent and each Indemnitee that is, or may be, owed such Obligations and (D) to the extent requested by the Agent, receipt by Agent and the Secured Parties of liability releases from the Credit Parties each in form and substance acceptable to the Agent.

Each Lender hereby directs the Agent, and the Agent hereby agrees, upon receipt of reasonable advance notice from the Borrower Representative, to execute and deliver or file such documents and to perform other actions reasonably necessary to release the guaranties and Liens when and as directed in this Section 8.10.

     8.11 Additional Secured Parties. The benefit of the provisions of the Loan Documents directly relating to the Collateral or any Lien granted thereunder shall extend to and be available to any Secured Party that is not a Lender party hereto as long as, by accepting such benefits, such Secured Party agrees, as among the Agent and all other Secured Parties, that such Secured Party is bound by (and, if requested by the Agent, shall confirm such agreement in a writing in form and substance acceptable to the Agent) this Article VIII, Section 9.3, Section 9.9, Section 9.10, Section 9.11, Section 9.17, Section 9.24, and Section 10.1 and the decisions and actions of the Agent and the Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders or other parties hereto as required herein) to the same extent a Lender is bound; provided, however, that, notwithstanding the foregoing, (a) such Secured Party shall be bound by Section 8.8 only to the extent of Liabilities, costs and expenses with respect to or otherwise relating to the Collateral held for the benefit of such Secured Party, in which case the obligations of such Secured Party thereunder shall not be limited by any concept of pro rata share or similar concept, (b) each of the Agent and the Lenders party hereto shall be entitled to act at its sole discretion, without regard to the interest of such Secured Party, regardless of whether any Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby, and without any duty or liability to such Secured Party or any such Obligation and (c) except as otherwise set forth herein, such Secured Party shall not have any right to be notified of, consent to, direct, require or be heard with respect to, any action taken or omitted in respect of the Collateral or under any Loan Document.

ARTICLE IX.
MISCELLANEOUS

     9.1 Amendments and Waivers.

          (a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent with respect to any departure by any Credit Party therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders (or by the Agent with the consent of the Required Lenders), the Borrowers and acknowledged by the

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Agent, and then such waiver shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such waiver, amendment, or consent shall, unless in writing and signed by all the Lenders directly affected thereby (or by the Agent with the consent of all the Lenders directly affected thereby), in addition to the Required Lenders (or by the Agent with the consent of the Required Lenders), the Borrowers and acknowledged by the Agent, do any of the following:

          (i) increase or extend the Commitment of any Lender (or reinstate any Commitment terminated pursuant to subsection 7.2(a));

          (ii) postpone or delay any date fixed for, or waive, any scheduled installment of principal or any payment of interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document;

          (iii) reduce the principal of, or the rate of interest specified herein or the amount of interest payable in cash specified herein on any Loan, or of any fees or other amounts payable hereunder or under any other Loan Document;

          (iv) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans which shall be required for the Lenders or any of them to take any action hereunder;

          (v) amend this Section 9.1 or the definition of Required Lenders or any provision providing for consent or other action by all Lenders; or

          (vi) discharge any Credit Party from its respective payment Obligations under the Loan Documents, or release all or substantially all of the Collateral, except as otherwise may be provided in this Agreement or the other Loan Documents;

it being agreed that all Lenders shall be deemed to be directly affected by an amendment or waiver of the type described in the preceding clauses (iv), (v) and (vi).

          (b) No amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Required Lenders or all Lenders directly affected thereby as the case may be (or by the Agent with the consent of the Required Lenders or all the Lenders directly affected thereby, as the case may be), affect the rights or duties of the Agent under this Agreement or any other Loan Document. No amendment, modification or waiver of this Agreement or any Loan Document altering the ratable treatment of Obligations arising under Secured Rate Contracts resulting in such Obligations being junior in right of payment to principal on the Loans or resulting in Obligations owing to any Secured Swap Provider becoming unsecured (other than releases of Liens permitted in accordance with the terms hereof), in each case in a manner adverse to any Secured Swap Provider, shall be effective without the written consent of such Secured Swap Provider.

     9.2 Notices.

          (a) Addresses. All notices, demands, requests, directions and other communications required or expressly authorized to be made by this Agreement shall, whether or

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not specified to be in writing but unless otherwise expressly specified to be given by any other means, be given in writing and (i) addressed to the address set forth on the applicable signature page hereto, (ii) at the direction of the Agent, if one or more of the Lenders is not EJ Funds or its Affiliate, posted to Intralinks® (to the extent such system is available and set up by or at the direction of the Agent prior to posting) in an appropriate location by uploading such notice, demand, request, direction or other communication to www.intralinks.com, faxing it to 866-545-6600 with an appropriate bar-code fax coversheet or using such other means of posting to Intralinks® as may be available and reasonably acceptable to the Agent prior to such posting, (iii) posted to any other E-System set up by or at the direction of Agent or (iv) addressed to such other address as shall be notified in writing (A) in the case of the Borrowers and the Agent, to the other parties hereto and (B) in the case of all other parties, to the Borrower Representative and the Agent. Transmission by electronic mail (including E-Fax, even if transmitted to the fax numbers set forth above) shall not be sufficient or effective to transmit any such notice under this clause (a) unless such transmission is an available means to post to any E-System.

          (b) Effectiveness. All communications described in clause (a) above and all other notices, demands, requests and other communications made in connection with this Agreement shall be effective and be deemed to have been received (i) if delivered by hand, upon personal delivery, (ii) if delivered by overnight courier service, 1 Business Day after delivery to such courier service, (iii) if delivered by mail, three Business Days after being deposited in the mails, (iv) if delivered by facsimile (other than to post to an E-System pursuant to clause (a)(ii) or (a)(iii) above), upon sender’s receipt of confirmation of proper transmission, and (v) if delivered by posting to any E-System at any time during which one or more of the Lenders is not EJ Funds or its Affiliate and the Agent has so directed the Borrowers and each Lender, on the later of (A) the date of such posting if posted before 6pm New York time, otherwise the following date and (B) the date access to such posting is given to the recipient thereof in accordance with the standard procedures applicable to such E-System if such access is given prior to 6pm, otherwise the following date; provided, however, that no communications to Agent pursuant to Article I shall be effective until received by Agent.

          (c) Each Lender shall notify the Agent in writing of any changes in the address to which notices to such Lender should be directed, of addresses of its Lending Office, of payment instructions in respect of all payments to be made to it hereunder and of such other administrative information as the Agent shall reasonably request.

     9.3 Electronic Transmissions.

          (a) Authorization. Subject to the provisions of Section 9.2(a), each of Agent, Lenders, each Credit Party and each of their Related Persons, is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions in connection with any Loan Document and the transactions contemplated therein. Each Credit Party and each Secured Party hereto acknowledges and agrees that the use of Electronic Transmissions is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes and accepts such risks by hereby authorizing the transmission of Electronic Transmissions.

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          (b) Signatures. Subject to the provisions of Section 9.2(a), (i)(A) no posting to any E-System shall be denied legal effect merely because it is made electronically, (B) each E Signature on any such posting shall be deemed sufficient to satisfy any requirement for a “signature” and (C) each such posting shall be deemed sufficient to satisfy any requirement for a “writing” or a “record”, in each case including pursuant to any Loan Document, any applicable provision of any UCC, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and National Commerce Act and any substantive or procedural Requirement of Law governing such subject matter, (ii) each such posting that is not readily capable of bearing either a signature or a reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or logically associating with such posting, an E-Signature, upon which Agent, each Secured Party and each Credit Party, provided that it is acting in good faith, may rely and assume the authenticity thereof, (iii) each such posting containing a signature, a reproduction of a signature or an E-Signature shall, for all intents and purposes, have the same effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereof agrees not to contest the validity or enforceability of any posting on any E-System or E-Signature on any such posting under the provisions of any applicable Requirement of Law requiring certain documents to be in writing or signed; provided, however, that nothing herein shall limit such party’s or beneficiary’s right to contest whether any posting to any E-System or E-Signature has been altered after transmission.

          (c) Separate Agreements. All uses of an E-System shall be governed by and subject to, in addition to Section 9.2 and this Section 9.3, separate terms and conditions posted or referenced in such E-System and related Contractual Obligations executed by Agent and Credit Parties in connection with the use of such E-System.

          (d) LIMITATION OF LIABILITY. ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION AND DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN. NO WARRANTY OF ANY KIND IS MADE BY AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS IN CONNECTION WITH ANY E SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS. Each Borrower, each other Credit Party executing this Agreement and each Secured Party agrees that Agent has no responsibility for maintaining or providing any equipment, software, services or any testing required in connection with any Electronic Transmission or otherwise required for any E-System.

     9.4 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. No course of dealing between any Credit Party, any Affiliate of any Credit Party, the Agent or any Lender shall be effective to

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amend, modify or discharge any provision of this Agreement or any of the other Loan Documents.

     9.5 Costs and Expenses. Any action taken by any Credit Party under or with respect to any Loan Document, even if required under any Loan Document or at the request of Agent or Required Lenders, shall be at the expense of such Credit Party, and neither Agent nor any Secured Party shall be required under any Loan Document to reimburse any Credit Party or any Subsidiary of any Credit Party therefor except as expressly provided therein. In addition, the Borrowers agree to pay or reimburse upon demand (a) the Agent for all reasonable out-of-pocket costs and expenses incurred by it or any of its Related Persons in connection with the investigation, development, preparation, negotiation, syndication, execution, interpretation or administration of, any modification of any term of or termination of, any Loan Document, any commitment or proposal letter therefor, any other document prepared in connection therewith or the consummation and administration of any transaction contemplated therein, in each case including Attorney Costs to the Agent, (b) the Agent for all reasonable costs and expenses incurred by it or any of its Related Persons in connection with internal audit reviews, field examinations and Collateral examinations (which shall be reimbursed, in addition to the out-of-pocket costs and expenses of such examiners, at the per diem rate per individual regularly charged by the Agent for its examiners), (c) each of the Agent and its Related Persons for all costs and expenses incurred in connection with (i) any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work-out”, (ii) the enforcement or preservation of any right or remedy under any Loan Document, any Obligation, with respect to the Collateral or any other related right or remedy or (iii) the commencement, defense, conduct of, intervention in, or the taking of any other action with respect to, any proceeding (including any bankruptcy or insolvency proceeding) related to any Credit Party, any Subsidiary of any Credit Party, Loan Document, Obligation or Related Transaction (or the response to and preparation for any subpoena or request for document production relating thereto), including Attorney Costs and (d) fees and disbursements of Attorney Costs of one law firm on behalf of all Lenders (other than Agent) incurred in connection with any of the matters referred to in clause (c) above.

     9.6 Indemnity.

          (a) Each Credit Party agrees to indemnify, hold harmless and defend Agent, each Lender and each of their respective Related Persons (each such Person being an “Indemnitee”) from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any such Indemnitee in any matter relating to or arising out of, in connection with or as a result of (i) any Loan Document, any Related Agreement, any Obligation (or the repayment thereof), the use or intended use of the proceeds of any Loan or any securities filing of, or with respect to, any Credit Party or the Original Credit Agreement, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by or on behalf of any Credit Party or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of securities or creditors (and including

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attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “Indemnified Matters”); provided, however, that no Credit Party shall have any liability under this Section 9.6 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order. Furthermore, to the extent permitted by law, each Borrower and each other Credit Party executing this Agreement waives and agrees not to assert against any Indemnitee, and shall cause each other Credit Party to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person.

          (b) Without limiting the foregoing, “Indemnified Matters” includes all Environmental Liabilities, including those arising from, or otherwise involving, any property of any Credit Party or any Related Person of any Credit Party or any actual, alleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real property of any Credit Party or any Related Person or any Credit Party, whether or not, with respect to any such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to any Credit Party or any Related Person of any Credit Party or the owner, lessee or operator of any property of any Related Person through any foreclosure action, in each case except to the extent such Environmental Liabilities (i) are incurred solely following foreclosure by Agent or following Agent or any Lender having become the successor-in-interest to any Credit Party or any Related Person of any Credit Party and (ii) are attributable solely to acts of such Indemnitee.

     9.7 Marshaling; Payments Set Aside. No Secured Party shall be under any obligation to marshal any property in favor of any Credit Party or any other Person or against or in payment of any Obligation. To the extent that any Secured Party receives a payment from a Borrower, from any other Credit Party, from the proceeds of the Collateral, from the exercise of its rights of setoff, any enforcement action or otherwise, and such payment is subsequently, in whole or in part, invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not occurred.

     9.8 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that any assignment by any Lender shall be subject to the provisions of Section 9.9 hereof, and provided further that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agent and each Lender.

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     9.9 Assignments and Participations; Binding Effect.

          (a) This Agreement shall become effective when it shall have been executed by the Borrowers, the other Credit Parties signatory hereto and the Agent and when the Agent shall have been notified by each Lender that such Lender has executed it. Thereafter, it shall be binding upon and inure to the benefit of, but only to the benefit of, the Borrowers, the other Credit Parties hereto (in each case except for Article VIII, except as provided in Section 8.9(a)), the Agent and each Lender party hereto and, to the extent provided in Section 8.11, each other Secured Party and, in each case, their respective successors and permitted assigns. Except as expressly provided in any Loan Document (including in Section 8.9), none of any Borrower, any other Credit Party or the Agent shall have the right to assign any rights or obligations hereunder or any interest herein.

          (b) Each Lender may sell, transfer, negotiate or assign (a “Sale”) all or a portion of its rights and obligations hereunder (including all or a portion of its Commitments and its rights and obligations with respect to Loans) to (i) any existing Lender or (ii) any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Agent and, as long as no Event of Default is continuing, the Borrower Representative; provided, however, that (x) such Sales must be ratable among the obligations owing to and owed by such Lender with respect to the Revolving Loans and (y) for each Loan, the aggregate outstanding principal amount (determined as of the effective date of the applicable Assignment) of the Loans and Commitments subject to any such Sale shall be in a minimum amount of $1,000,000, unless such Sale is made to an existing Lender or an Affiliate of any existing Lender, is of the assignor’s (together with its Affiliates) entire interest in such Facility or is made with the prior consent of the Borrower Representative and the Agent.

          (c) The parties to each Sale made in reliance on clause (b) above (other than those described in clause (e) or (f) below) shall execute and deliver to the Agent an Assignment via an electronic settlement system designated by the Agent (or, if previously agreed with the Agent, via a manual execution and delivery of the Assignment) evidencing such Sale, together with any existing Note subject to such Sale (or any affidavit of loss therefor acceptable to the Agent), any tax forms required to be delivered pursuant to Section 10.1 and payment of an assignment fee in the amount of $3,500, provided that (1) if a Sale by a Lender is made to an Affiliate of such assigning Lender, then no assignment fee shall be due in connection with such Sale, and (2) if a Sale by a Lender is made to an assignee that is not an Affiliate of such assignor Lender, and concurrently to one or more Affiliates of such Assignee, then only one assignment fee of $3,500 shall be due in connection with such Sale. Upon receipt of all the foregoing, and conditioned upon such receipt and, if such Assignment is made in accordance with Section 9.9(b)(iii), upon the Agent (and the Borrowers, if applicable) consenting to such Assignment (if required), from and after the effective date specified in such Assignment, the Agent shall record or cause to be recorded in the Register the information contained in such Assignment.

          (d) Subject to the recording of an Assignment by the Agent in the Register pursuant to Section 1.4(b), (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor

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thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).

          (e) In addition to the other rights provided in this Section 9.9, each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to the Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Indebtedness or equity securities, by notice to the Agent; provided, however, that no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), shall be entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder.

          (f) In addition to the other rights provided in this Section 9.9, each Lender may, (x) with notice to the Agent, grant to an SPV the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (y) without notice to or consent from the Agent or the Borrowers, sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Revolving Loans); provided, however, that, whether as a result of any term of any Loan Document or of such grant or participation, (i) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the applicable option agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such Lender’s rights and obligations, and the rights and obligations of the Credit Parties and the Secured Parties towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender, which shall remain the holder of the Obligations in the Register, except that (A) each such participant and SPV shall be entitled to the benefit of Article X, but, with respect to Section 10.1, only to the extent such participant or SPV delivers the tax forms such Lender is required to collect pursuant to subsection 10.1(f) and then only to the extent of any amount to which such Lender would be entitled in the absence of any such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to the Agent by such SPV and such Lender, provided, however, that in no case (including pursuant to clause (A) or (B) above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, and (iii) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have

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under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), except for those described in clauses (ii) and (iii) of subsection 9.1(a) with respect to amounts, or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in clause (vi) of subsection 9.1(a). No party hereto shall institute (and each Borrower shall cause each other Credit Party not to institute) against any SPV grantee of an option pursuant to this clause (f) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Indemnitee against any Liability that may be incurred by, or asserted against, such Indemnitee as a result of failing to institute such proceeding (including a failure to get reimbursed by such SPV for any such Liability). The agreement in the preceding sentence shall survive the termination of the Commitments and the payment in full of the Obligations.

     9.10 Confidentiality. Each Lender and the Agent agree to use all reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of information obtained by it pursuant to any Loan Document and designated in writing by any Credit Party as confidential (the “Confidential Information”) for a period of three (3) years following the date on which this Agreement terminates in accordance with the terms hereof, except that such information may be disclosed (i) with the Borrower Representative’s consent, (ii) to Related Persons of such Lender or the Agent, as the case may be, that are advised of the confidential nature of the Confidential Information and are instructed to keep the Confidential Information confidential, (iii) to the extent the Confidential Information presently is or hereafter becomes available to such Lender or the Agent, as the case may be, on a non-confidential basis from a source other than any Credit Party, (iv) to the extent disclosure is required by applicable Requirements of Law or other legal process or requested or demanded by any Governmental Authority, (v) to the extent necessary or customary for inclusion in league table measurements or in any tombstone or other advertising materials (and the Credit Parties consent to the publication of such tombstone or other advertising materials by the Agent, any Lender or any of their Related Persons), (vi) (A) to the National Association of Insurance Commissioners or any similar organization, any examiner or any nationally recognized rating agency or (B) otherwise to the extent consisting of general portfolio information that does not identify borrowers, (vii) to current or prospective assignees, SPVs (including the investors therein) or participants, direct or contractual counterparties to any Secured Rate Contracts and to their respective Related Persons, in each case to the extent such assignees, investors, participants, counterparties or Related Persons agree to be bound by provisions substantially similar to the provisions of this Section 9.10 and (viii) in connection with the exercise of any remedy under any Loan Document. The Agent and each Lender agrees that upon the expiration of the three (3) year period noted above, the Agent or such Lender shall destroy or return to the Borrowers the Confidential Information; provided, however that the Agent or such Lender shall be permitted to retain a copy of the Confidential Information pursuant to its record retention policy. The Agent and each Lender hereby agree to use commercially reasonable efforts to notify the Borrower promptly upon the Agent or such Lender obtaining knowledge of any unauthorized use or disclosure of the Confidential Information; provided, however that the Agent or such Lender shall not be liable for any damages as a result of failing to provide such notice. In the event of any conflict between the terms of this Section 9.10 and those of any other Contractual Obligation entered into with any Credit Party (whether or not a Loan Document), the terms of this Section 9.10 shall govern.

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          Each Credit Party consents to the publication by Agent or any Lender of advertising material relating to the financing transactions contemplated by this Agreement using Borrowers’ or any other Credit Party’s name, product photographs, logo or trademark. Agent or such Lender shall provide a draft of any advertising material to Borrowers for review and comment prior to the publication thereof.

     9.11 Set-off; Sharing of Payments.

          (a) Right of Setoff. Each of the Agent, each Lender, and each Control Affiliate (including each branch office thereof) of any of them is hereby authorized, without notice or demand (each of which is hereby waived by each Credit Party), at any time and from time to time during the continuance of any Event of Default and to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all deposits (whether general or special, time or demand, provisional or final) at any time held and other Indebtedness, claims or other obligations at any time owing by the Agent, such Lender or any of their respective Control Affiliates to or for the credit or the account of the Borrowers or any other Credit Party against any Obligation of any Credit Party now or hereafter existing, whether or not any demand was made under any Loan Document with respect to such Obligation and even though such Obligation may be unmatured. Each of the Agent and each Lender agrees promptly to notify the Borrower Representative and the Agent after any such setoff and application made by such Lender or its Control Affiliates; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights under this Section 9.11 are in addition to any other rights and remedies (including other rights of setoff) that the Agent, the Lenders, and their Control Affiliates and the other Secured Parties may have.

          (b) Sharing of Payments, Etc. If any Lender, directly or through an Control Affiliate or branch office thereof, obtains any payment of any Obligation of any Credit Party (whether voluntary, involuntary or through the exercise of any right of setoff or the receipt of any Collateral or “proceeds” (as defined under the applicable UCC) of Collateral) other than pursuant to Article X and such payment exceeds the amount such Lender would have been entitled to receive if all payments had gone to, and been distributed by, the Agent in accordance with the provisions of the Loan Documents, such Lender shall purchase for cash from other Lenders such participations in their Obligations as necessary for such Lender to share such excess payment with such Lenders to ensure such payment is applied as though it had been received by the Agent and applied in accordance with this Agreement (or, if such application would then be at the discretion of the Borrowers, applied to repay the Obligations in accordance herewith); provided, however, that (a) if such payment is rescinded or otherwise recovered from such Lender in whole or in part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender without interest and (b) such Lender shall, to the fullest extent permitted by applicable Requirements of Law, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the applicable Credit Party in the amount of such participation.

     9.12 Counterparts. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached

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to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof.

     9.13 Severability; Facsimile Signature. The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder. Any Loan Document, or other agreement, document or instrument, delivered by facsimile transmission shall have the same force and effect as if the original thereof had been delivered.

     9.14 Captions. The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

     9.15 Independence of Provisions. The parties hereto acknowledge that this Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters, and that such limitations, tests and measurements are cumulative and must each be performed, except as expressly stated to the contrary in this Agreement.

     9.16 Interpretation. This Agreement is the result of negotiations among and has been reviewed by counsel to the Agent, each Lender and other parties hereto, and is the product of all parties hereto. Accordingly, this Agreement and the other Loan Documents shall not be construed against the Lenders or the Agent merely because of the Agent’s or Lenders’ involvement in the preparation of such documents and agreements.

     9.17 No Third Parties Benefited. This Agreement is made and entered into for the sole protection and legal benefit of the Borrowers, the other Credit Parties, the Lenders, the Agent, and subject to the provisions of Section 8.11 hereof, each other Secured Party, and their permitted successors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents. Neither the Agent nor any Lender shall have any obligation to any Person not a party to this Agreement or the other Loan Documents.

     9.18 Governing Law and Jurisdiction.

          (a) Governing Law. The laws of the State of New York shall govern all matters arising out of, in connection with or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance and enforcement.

          (b) Submission to Jurisdiction. Any legal action or proceeding with respect to any Loan Document may be brought in the courts of the State of New York located in the City of New York, Borough of Manhattan, or of the United States of America for the Southern District of New York and, by execution and delivery of this Agreement, each Borrower and each other Credit Party executing this Agreement hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto (and, to the extent set forth in any other Loan Document, each other Credit Party) hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of

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forum non conveniens, that any of them may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.

          (c) Service of Process. Each Credit Party hereby irrevocably waives personal service of any and all legal process, summons, notices and other documents and other service of process of any kind and consents to such service in any suit, action or proceeding brought in the United States of America with respect to or otherwise arising out of or in connection with any Loan Document by any means permitted by applicable Requirements of Law, including by the mailing thereof (by registered or certified mail, postage prepaid) to the address of Borrowers specified herein (and shall be effective when such mailing shall be effective, as provided therein). Each Credit Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

          (d) Non-Exclusive Jurisdiction. Nothing contained in this Section 9.18 shall affect the right of Agent or any Lender to serve process in any other manner permitted by applicable Requirements of Law or commence legal proceedings or otherwise proceed against any Credit Party in any other jurisdiction.

     9.19 Waiver of Jury Trial. THE PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY OTHER TRANSACTION CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

     9.20 Entire Agreement; Release; Survival.

          (a) THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER THEREOF AND ANY PRIOR LETTER OF INTEREST, COMMITMENT LETTER, CONFIDENTIALITY AND SIMILAR AGREEMENTS INVOLVING ANY CREDIT PARTY AND ANY LENDER OR ANY OF THEIR RESPECTIVE AFFILIATES RELATING TO A FINANCING OF SUBSTANTIALLY SIMILAR FORM, PURPOSE OR EFFECT OTHER THAN THE FEE LETTER. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT, THE TERMS OF THIS AGREEMENT SHALL GOVERN (UNLESS SUCH TERMS OF SUCH OTHER LOAN DOCUMENTS ARE NECESSARY TO COMPLY WITH APPLICABLE REQUIREMENTS OF LAW, IN WHICH CASE SUCH TERMS SHALL GOVERN TO THE EXTENT NECESSARY TO COMPLY THEREWITH).

          (b) Execution of this Agreement by the Credit Parties constitutes a full, complete and irrevocable release of any and all claims which each Credit Party may have at law or in equity in respect of all prior discussions and understandings, oral or written, relating to the subject matter of this Agreement and the other Loan Documents. In no event shall any Indemnitee be liable on any theory of liability for any special, indirect, consequential or punitive

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damages (including any loss of profits, business or anticipated savings). Each Borrower and each other Credit Party signatory hereto hereby waives, releases and agrees (and shall cause each other Credit Party to waive, release and agree) not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

          (c) (i) Any indemnification or other protection provided to any Indemnitee pursuant to Article VIII (The Agent), Section 9.5 (Costs and Expenses), Section 9.6 (Indemnity), this Section 9.20, and Article X (Taxes, Yield Protection and Illegality) of this Agreement, (ii) solely for the two (2) year time period specified therein, the provisions of Section 9.10 of this Agreement and (iii) the provisions of Section 8.1 of the Guaranty and Security Agreement, in each case, shall (x) survive the termination of the Commitments and the payment in full of all other Obligations and (y) with respect to clause (i) hereof, inure to the benefit of any Person that at any time held a right thereunder (as an Indemnitee or otherwise) and, thereafter, its successors and permitted assigns.

     9.21 Patriot Act. Each Lender that is subject to the Patriot Act hereby notifies the Borrowers that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender to identify each Borrower in accordance with the Patriot Act.

     9.22 Replacement of Lender. Within forty-five days after: (i) receipt by the Borrower Representative of written notice and demand from any Lender (an “Affected Lender”) for payment of additional costs as provided in Sections 10.1, 10.3 and/or 10.6; (ii) any default by a Lender in its obligation to make Loans hereunder after all conditions thereto have been satisfied or waived in accordance with the terms hereof, provided such default shall not have been cured; or (iii) any failure by any Lender to consent to a requested amendment, waiver or modification to any Loan Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender (or each Lender directly affected thereby, as applicable) is required with respect thereto, the Borrowers may, at their option, notify the Agent and such Affected Lender (or such defaulting or non-consenting Lender, as the case may be) of the Borrowers’ intention to obtain, at the Borrowers’ expense, a replacement Lender (“Replacement Lender”) for such Affected Lender (or such defaulting or non-consenting Lender, as the case may be), which Replacement Lender shall be reasonably satisfactory to the Agent. In the event the Borrowers obtain a Replacement Lender within forty-five (45) days following notice of its intention to do so, the Affected Lender (or defaulting or non-consenting Lender, as the case may be) shall sell and assign its Loans and Commitments to such Replacement Lender, at par, provided that the Borrowers have reimbursed such Affected Lender for its increased costs for which it is entitled to reimbursement under this Agreement through the date of such sale and assignment. In the event that a replaced Lender does not execute an Assignment pursuant to Section 9.9 within five (5) Business Days after receipt by such replaced Lender of notice of replacement pursuant to this Section 9.22 and presentation to such replaced Lender of an Assignment evidencing an assignment pursuant to this Section 9.22, the Borrowers shall be entitled (but not obligated) to execute such an Assignment on behalf of such replaced Lender, and any such Assignment so executed by the Borrowers, the Replacement Lender and the Agent, shall be effective for purposes of this Section 9.22 and Section 9.9. Upon any such assignment

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and payment and compliance with the other provisions of Section 9.9, such replaced Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such replaced Lender to indemnification hereunder shall survive as to such replaced Lender.

     9.23 Joint and Several. The obligations of the Credit Parties hereunder and under the other Loan Documents are joint and several.

     9.24 Creditor-Debtor Relationship. The relationship between Agent and each Lender, on the one hand, and the Credit Parties, on the other hand, is solely that of creditor and debtor. No Secured Party has any fiduciary relationship or duty to any Credit Party arising out of or in connection with, and there is no agency, tenancy or joint venture relationship between the Secured Parties and the Credit Parties by virtue of, any Loan Document or any transaction contemplated therein.

     9.25 Location of Closing. Each Lender acknowledges and agrees that it has delivered, with the intent to be bound, its executed counterparts of this Agreement to the Agent. Each Borrower acknowledges and agrees that it has delivered, with the intent to be bound, its executed counterparts of this Agreement and each other Loan Document, together with all other documents, instruments, opinions, certificates and other items required under Section 2.1, to the Agent.

ARTICLE X.
TAXES, YIELD PROTECTION AND ILLEGALITY

     10.1 Taxes.

          (a) Except as otherwise provided in this Section 10.1, each payment by any Credit Party under any Loan Document shall be made free and clear of all present or future taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto (and without deduction for any of them) (collectively, but excluding the taxes set forth in clauses (i) and (ii) below, the “Taxes”) other than for (i) taxes measured by net income (including branch profits taxes) and franchise taxes imposed in lieu of net income taxes, in each case imposed on any Secured Party as a result of a present or former connection between such Person and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than such connection arising solely from any Secured Party having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document) or (ii) taxes that are directly attributable to the failure (other than as a result of a change in any Requirement of Law) by Agent or any Lender to deliver the documentation required to be delivered pursuant to clause (f) below.

          (b) If any Taxes shall be required by law to be deducted from or in respect of any amount payable under any Loan Document to any Secured Party (i) such amount shall be increased as necessary to ensure that, after all required deductions for Taxes are made (including deductions applicable to any increases to any amount under this Section 10.1), such Secured Party receives the amount it would have received had no such deductions been made, (ii) the relevant Credit Party shall make such deductions, (iii) the relevant Credit Party shall timely pay the full amount deducted to the relevant taxing authority or other authority in accordance with

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applicable Requirements of Law and (iv) within 30 days after such payment is made, the relevant Credit Party shall deliver to the Agent an original or certified copy of a receipt evidencing such payment; provided, however, that no such increase shall be made with respect to, and no Credit Party shall be required to indemnify any Secured Party pursuant to clause (d) below for, withholding taxes to the extent that the obligation to withhold amounts existed on the date that such Person became a Secured Party under this Agreement in the capacity under which such Person makes a claim under this clause (b), except in each case to the extent such Person is a direct or indirect assignee (other than pursuant to Section 9.22) of any other Secured Party that was entitled, at the time the assignment to such Person became effective, to receive additional amounts under this clause (b).

          (c) In addition, Borrowers agree to pay, and authorize the Agent to pay in their name, any stamp, documentary, excise or property tax, charges or similar levies imposed by any applicable Requirement of Law or Governmental Authority and all Liabilities with respect thereto (including by reason of any delay in payment thereof), in each case arising from the execution, delivery or registration of, or otherwise with respect to, any Loan Document or any transaction contemplated therein (collectively, “Other Taxes”).

          (d) Borrowers shall reimburse and indemnify, within 30 days after receipt of demand therefor (with copy to the Agent), each Secured Party for all Taxes and Other Taxes (including any Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this Section 10.1) paid by such Secured Party and any Liabilities arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. A certificate of the Secured Party (or of the Agent on behalf of such Secured Party) claiming any compensation under this clause (d), setting forth the amounts to be paid thereunder and delivered to the Borrower Representative with copy to the Agent, shall be conclusive, binding and final for all purposes, absent manifest error. In determining such amount, the Agent and such Secured Party may use any reasonable averaging and attribution methods.

          (e) Any Lender claiming any additional amounts payable pursuant to this Section 10.1 shall use its reasonable efforts (consistent with its internal policies and Requirements of Law) to change the jurisdiction of its lending office if such a change would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender.

     (f) (1) Each Non-U.S. Lender Party that, at any of the following times, is entitled to an exemption from United States withholding tax or, after a change in any Requirement of Law, is subject to such withholding tax at a reduced rate under an applicable tax treaty, shall (w) on or prior to the date such Non-U.S. Lender Party becomes a “Non-U.S. Lender Party” hereunder, (x) on or prior to the date on which any such form or certification expires or becomes obsolete, (y) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (i) and (z) from time to time if requested by the Borrower Representative or the Agent (or, in the case of a participant or SPV, the relevant Lender), provide the Agent and the Borrower Representative (or, in the case of a participant or SPV, the relevant Lender) with two completed originals of each of the following, as

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applicable: (A) Forms W-8ECI (claiming exemption from U.S. withholding tax because the income is effectively connected with a U.S. trade or business), W-8BEN (claiming exemption from, or a reduction of, U.S. withholding tax under an income tax treaty) and/or W-8IMY or any successor forms, (B) in the case of a Non-U.S. Lender Party claiming exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN (claiming exemption from U.S. withholding tax under the portfolio interest exemption) or any successor form and a certificate in form and substance acceptable to the Agent that such Non-U.S. Lender Party is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (C) any other applicable document prescribed by the IRS certifying as to the entitlement of such Non-U.S. Lender Party to such exemption from United States withholding tax or reduced rate with respect to all payments to be made to such Non-U.S. Lender Party under the Loan Documents. Unless the Borrower Representative and the Agent have received forms or other documents satisfactory to them indicating that payments under any Loan Document to or for a Non-U.S. Lender Party are not subject to United States withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty, the Credit Parties and the Agent shall withhold amounts required to be withheld by applicable Requirements of Law from such payments at the applicable statutory rate.

          (i) Each U.S. Lender Party shall (A) on or prior to the date such U.S. Lender Party becomes a “U.S. Lender Party” hereunder, (B) on or prior to the date on which any such form or certification expires or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (f) and (D) from time to time if requested by the Borrower Representative or the Agent (or, in the case of a participant or SPV, the relevant Lender), provide the Agent and the Borrower Representative (or, in the case of a participant or SPV, the relevant Lender) with two completed originals of Form W-9 (certifying that such U.S. Lender Party is entitled to an exemption from U.S. backup withholding tax) or any successor form.

          (g) Each Lender having sold a participation in any of its Obligations or identified an SPV as such to the Agent shall collect from such participant or SPV the documents described in this clause (f) and provide them to the Agent.

     10.2 Certificates of Lenders. Any Lender claiming reimbursement or compensation pursuant to this Article X shall deliver to the Borrower Representative (with a copy to the Agent) a certificate setting forth in reasonable detail the amount payable to such Lender hereunder and such certificate shall be conclusive and binding on the Borrowers in the absence of manifest error.

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ARTICLE XI.
DEFINITIONS

     11.1 Defined Terms. The following terms are defined in the Sections or subsections referenced opposite such terms:

“956 Impact”	4.13(b)
“Additional Lender”	1.16(b)
“Affected Lender”	9.22
“Agreement”	Preamble
“Akorn”	Preamble
“Akorn NJ”	Preamble
“Applicable Percentage”	1.9(d)
“Borrower” and “Borrowers”	Preamble
“Borrower Representative”	1.17
“Capital Expenditures”	Exhibit 4.2(b)
“Cash Management Systems”	4.11
“Closing Checklist”	2.1(b)(i)
“Compliance Certificate”	4.2(b)
“Concentration Account”	Exhibit 4.11
“Concentration Limit”	Exhibit 11.1(f)
“Confidential Information”	9.10
“Disbursement Account” and “Disbursement Accounts”	Exhibit 4.11
“EBITDA”	Exhibit 4.2(b)
“EJ Funds”	Preamble
“EJ Funds Designees”	4.17(a)
“Eligible Accounts”	Exhibit 11.1(f)
“Eligible Inventory”	Exhibit 11.1(g)
“Event of Default”	7.1
“Exchange Act”	3.26
“FDA Laws”	4.8(c)
“Federal Healthcare Program Laws”	3.23(c)
“Fee Letter”	1.9(a)
“Fixed Charge Coverage Ratio”	Exhibit 4.2(b)
“Guaranteed Obligations”	12.1
“Incremental Revolver”	1.16(a)
“Indemnified Matters”	9.5
“Indemnitee”	9.5
“Interest Rate”	1.3(a)
“Lender”	Preamble
“Lock Box”	Exhibit 4.11
“Lock Box Account”	Exhibit 4.11
“Lock Box Bank”	Exhibit 4.11
“Maximum Lawful Rate”	1.3(d)
“Maximum Revolving Loan Balance”	1.1(b)
“Modification Agreement”	Preamble
“Modification Warrant”	Preamble

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“Non-Funding Lender”	1.11(b)
“Original Credit Agreement”	Preamble
“Other Lender”	1.11(e)
“Other Taxes”	10.1(b)
“Permitted Liens”	5.1
“Relationship Bank”	Exhibit 4.11
“Register”	1.4(b)
“Registration Rights Agreement”	Preamble
“Restatement Warrant”	Preamble
“Restricted Payments”	5.11
“Replacement Lender”	9.22
“Revolving Loan Commitment”	1.1(b)
“Revolving Loan”	1.1(b)
“Sale”	9.9(a)
“SEC”	3.26
“Settlement Date”	1.11(b)
“Taxes”	10.1(a)
“Unused Commitment Fee”	1.9(b)

In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

     “Account” means, as at any date of determination, any “account” (as such term is defined in the UCC) of any Borrower or any of its Subsidiaries, including, without limitation, the unpaid portion of the obligation of a customer of a Borrower or any of its Subsidiaries in respect of Inventory purchased by and shipped to such customer and/or the rendition of services by a Borrower or such Subsidiary, as stated on the respective invoice of a Borrower or such Subsidiary, net of any credits, rebates or offsets owed to such customer.

     “Account Debtor” means the customer of a Borrower or any of its Subsidiaries who is obligated on or under an Account.

     “Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business, product line or division of a Person, (b) the acquisition of in excess of fifty percent (50%) of the Stock and Stock Equivalents of any Person or otherwise causing any Person to become a Subsidiary of a Borrower, or (c) a merger or consolidation or any other combination with another Person.

     “Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract or otherwise. Without limitation, any director, executive officer or beneficial owner of five percent (5%) or more of the Stock (either directly or through ownership of Stock Equivalents) of a Person shall for the purposes of this Agreement, be deemed to control the other Person. Notwithstanding the foregoing, neither

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the Agent nor any Lender shall be deemed an “Affiliate” of any Credit Party or of any Subsidiary of any Credit Party.

     “Agent” means EJ Funds in its capacity as administrative agent for the Lenders hereunder, and any successor administrative agent.

     “Aggregate Revolving Loan Commitment” means the combined Revolving Loan Commitments of the Lenders, which shall initially be in the amount of $10,000,000, as such amount may be reduced from time to time pursuant to this Agreement.

     “Akorn Stock Plans” shall mean the (a) Amended and Restated Akorn, Inc. 1988 Incentive Compensation Program, (b) Amended and Restated 1991 Akorn, Inc. Stock Option Plan for Directors, (c) Amended and Restated Akorn, Inc. 2003 Stock Option Plan and (d) Amended and Restated Akorn, Inc. Employee Stock Purchase Plan, each as amended, modified or restated and as in effect as of the Restatement Effective Date.

     “ANDA” means Abbreviated New Drug Application with respect to applications to the FDA for approval of certain generic drugs.

     “Approved Bank” means any commercial bank that is (a) organized under the laws of the United States, any state thereof or the District of Columbia, (b) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (c) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000.

     “Assignment” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 9.9 (with the consent of any party whose consent is required by Section 9.9), accepted by the Agent, in substantially the form of Exhibit 11.1(a) or any other form approved by the Agent.

     “Attorney Costs” means and includes all reasonable fees and disbursements of any law firm or other external counsel.

     “Availability” means, as of any date of determination, the amount by which (a) the Maximum Revolving Loan Balance, exceeds (b) the aggregate outstanding principal balance of the Revolving Credit Exposure.

     “Average Unused Commitment Percentage” means, for any period, (a) the average outstanding Revolving Credit Exposure for such period, divided by (b) the Aggregate Revolving Loan Commitment as of the last day of such period.

     “Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended and in effect from time to time and the regulations issued from time to time thereunder.

     “Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) to which any Credit Party incurs or otherwise has any obligation or liability, contingent or otherwise.

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     “Borrowing” means a borrowing hereunder consisting of Loans made to or for the benefit of the Borrowers on the same day by the Lenders pursuant to Article I.

     “Borrowing Base” means, as of any date of determination by Agent, from time to time, an amount equal to the sum at such time of (a) 85% of the book value of Eligible Accounts; plus (b) the least of (1) 50% of the book value of Eligible Inventory valued at the lower of cost (determined on an average cost basis) or market, (2) 85% of the Net Orderly Liquidation Value of Eligible Inventory, (3) an amount such that no more than 75% of the value of the Borrowing Base is attributable to Eligible Inventory and (4) 75% of the Aggregate Revolving Loan Commitments; plus (c) 85% of the Net Orderly Liquidation Value of Eligible Equipment; plus (d) 50% of the Distressed Value of Eligible Real Estate, less (e) any Reserves established by Agent at such time.

     “Borrowing Base Certificate” means a certificate of the Borrowers, in substantially the form of Exhibit 11.1(b) hereto, duly completed as of a date acceptable to the Agent in its sole discretion.

     “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

     “Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any Lender or of any corporation controlling a Lender.

     “Capital Lease” means any leasing or similar arrangement which, in accordance with GAAP, is classified as a capital lease.

     “Capital Lease Obligations” means all monetary obligations of any Credit Party or any Subsidiary of any Credit Party under any Capital Leases.

     “Cash Equivalents” means: (a) securities issued or fully guaranteed or insured by the United States Government or any agency thereof having maturities of not more than six (6) months from the date of acquisition; (b) certificates of deposit, time deposits, repurchase agreements, reverse repurchase agreements, or bankers’ acceptances, having in each case a tenor of not more than six (6) months, issued by any Lender, or by any U.S. commercial bank or any branch or agency of a non U.S. bank licensed to conduct business in the U.S. having combined capital and surplus of not less than $250,000,000; (c) commercial paper of an issuer rated at least A 1 by Standard & Poor’s Corporation or P 1 by Moody’s Investors Service Inc. and in either case having a tenor of not more than three (3) months and (d) money market funds provided that substantially all of the assets of such fund are comprised of securities of the type described in clauses (a) through (c).

     “Code” means the Internal Revenue Code of 1986, and regulations promulgated thereunder.

     “Collateral” means all Property and interests in Property and proceeds thereof now owned or hereafter acquired by any Credit Party, any of their respective Subsidiaries and any

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other Person who has granted a Lien to the Agent, in or upon which a Lien now or hereafter exists in favor of any Lender or the Agent for the benefit of the Agent, Lenders and other Secured Parties, whether under this Agreement or under any other documents executed by any such Persons and delivered to the Agent.

     “Collateral Access Agreement” means an agreement in form and substance reasonably satisfactory to the Agent, executed by a landlord or mortgagee of real property on which Collateral is stored or otherwise located, or a warehouseman, processor or other bailee of Inventory, Equipment or other property owned by any Credit Party.

     “Collateral Documents” means, collectively, the Guaranty and Security Agreement, the Mortgages, the Control Agreements, the Collateral Access Agreements and all other security agreements, pledge agreements, patent and trademark security agreements, lease assignments, guarantees and other similar agreements, and all amendments, restatements, modifications or supplements thereof or thereto, by or between any one or more of any Credit Party, any of their respective Subsidiaries or any other Person pledging or granting a lien on Collateral or guaranteeing the payment and performance of the Obligations, and any Lender or the Agent for the benefit of the Agent, Lenders and other Secured Parties now or hereafter delivered to the Lenders or the Agent pursuant to or in connection with the transactions contemplated hereby, and all financing statements (or comparable documents now or hereafter filed in accordance with the UCC or comparable law) against any such Person as debtor in favor of any Lender or the Agent for the benefit of the Agent, Lenders and the other Secured Parties, as secured party, as any of the foregoing may be amended, restated and/or modified from time to time.

     “Collection Account” means that certain account of Agent, account number 50271079 in the name of Agent at Deutsche Bank Trust Company Americas in New York, New York, ABA No. 021-001-033, or such other account as may be specified in writing by Agent as the “Collection Account.”

     “Commitment” means, for each Lender, its Revolving Loan Commitment.

     “Commitment Percentage” means, as to any Lender, the percentage equivalent of such Lender’s Revolving Loan Commitment divided by the Aggregate Revolving Loan Commitment.

     “Common Stock” means the common stock, no par value per share of Akorn.

     “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person: (a) with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (b) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (c) under any Rate Contracts; (d) to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement; or (e) for the obligations of another Person through any agreement to purchase, repurchase or otherwise acquire such obligation or any Property

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constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another Person. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed or supported.

     “Contractual Obligations” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its Property is bound.

     “Control Affiliate” means any Affiliate without giving effect to the third sentence of the definition of Affiliate.

     “Control Agreement” means a tri-party deposit account, securities account or commodities account control agreement by and among the applicable Credit Party, Agent and the depository, securities intermediary or commodities intermediary, and each in form and substance reasonably satisfactory in all respects to Agent and in any event providing to Agent “control” of such deposit account, securities or commodities account within the meaning of Articles 8 and 9 of the UCC.

     “Copyrights” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith.

     “Credit Parties” means each Borrower and each other Person (a) which executes this Agreement as a “Credit Party,” (b) which executes a guaranty of the Obligations, (c) which grants a Lien on all or substantially all of its assets to secure payment of the Obligations and (d) all of the Stock of which is pledged to Agent for the benefit of the Secured Parties.

     “Default” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.

     “Disposition” means (a) the sale, lease, conveyance or other disposition of Property, other than sales or other dispositions expressly permitted under subsection 5.2(a), 5.2(c) and 5.2(d), and (b) the sale or transfer by a Borrower or any Subsidiary of a Borrower of any Stock or Stock Equivalent issued by any Subsidiary of a Borrower and held by such transferor Person.

     “Distressed Value” shall mean, with respect to Eligible Real Estate, the “Go-Dark” liquidation value of the Eligible Real Estate expected to be realized assuming a three to six month sale thereof.

     “Dollars”, “dollars” and “$” each mean lawful money of the United States of America.

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     “Domestic Subsidiary” means, with respect to any Person, a Subsidiary of such Person, which Subsidiary is incorporated or otherwise organized under the laws of a state of the United States of America.

     “Electronic Transmission” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.

     “Eligible Equipment” shall mean all machinery and equipment owned by the Borrowers and subject to the most recent Equipment Appraisal delivered to the Agent.

     “Eligible Real Estate” shall mean the Real Estate owned by the Borrowers in fee simple located in Decatur, Illinois consisting of two parcels located at 150 South Wyckles Road and 1222 West Grand Avenue; provided, however, that (i) no Real Estate subject to any proceedings, instituted or threatened, seeking condemnation or a taking by eminent domain or like process shall constitute “Eligible Real Estate” hereunder and (ii) no Real Estate shall constitute “Eligible Real Estate” hereunder until the Junior Mortgage (including Security Agreement, Assignment of Rents and Leases, and Fixture Filing, dated March 21, 2001), executed by Akorn, Inc. to The Northern Trust Company, filed on May 7, 2001 in the real estate records of Macon County, Illinois at Book 3056 Page 544 as document no. 1563431 (the “Northern Trust Mortgage”) has been terminated and each title policy has been endorsed to remove the Northern Trust Mortgage as an exception thereto, all to the satisfaction of Agent.

     “Environmental Laws” means all present and future Requirements of Law and Permits imposing liability or standards of conduct for or relating to the regulation and protection of human health, safety, the environment and natural resources, and including public notification requirements and environmental transfer of ownership, notification or approval statutes.

     “Environmental Liabilities” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of investigation and feasibility studies) that may be imposed on, incurred by or asserted against any Credit Party or any Subsidiary of any Credit Party as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law or in connection with any environmental, health or safety condition or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of property by any Credit Party or any Subsidiary of any Credit Party, whether on, prior or after the date hereof.

     “Equipment Appraisal” means the appraisal of the Eligible Equipment of the Borrowers delivered to the Agent specifying the Net Orderly Liquidation Value of such Eligible Equipment and performed by an independent appraiser acceptable to the Agent; if more than one such Equipment Appraisal has been conducted, then the Net Orderly Liquidation Value on any date for the Eligible Equipment of the Borrowers shall be the value determined from the most recent Equipment Appraisal that is conducted pursuant to this Agreement and the report of which is satisfactory to the Agent. The initial Equipment Appraisal shall mean the appraisal of the

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Eligible Equipment dated as of September 5, 2008 and performed by AccuVal Associates, Incorporated.

     “ERISA” means the Employee Retirement Income Security Act of 1974.

     “ERISA Affiliate” means, collectively, any Credit Party and any Person under common control or treated as a single employer with, any Credit Party, within the meaning of Section 414(b), (c), (m) or (o) of the Code.

     “ERISA Event” means any of the following: (a) a reportable event described in Section 4043(b) of ERISA (or, unless the 30-day notice requirement has been duly waived under the applicable regulations, Section 4043(c) of ERISA) with respect to a Title IV Plan; (b) the withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan; (d) with respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA; (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination) under Section 4041 of ERISA; (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (g) the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due; (h) the imposition of a lien under Section 412 or 430(k) of the Code or Section 302, 303(k) or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate or a violation of Section 436 of the Code with respect to a Title IV Plan; (i) the failure of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law to qualify thereunder; and (j) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not delinquent.

     “Event of Loss” means, with respect to any Property, any of the following: (a) any loss, destruction or damage of such Property; (b) any pending or threatened (in writing) institution of any proceedings for the condemnation or seizure of such Property or for the exercise of any right of eminent domain; or (c) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such Property, or confiscation of such Property or the requisition of the use of such Property.

     “Excluded Equity Issuance” means the issuance of (a) Stock or Stock Equivalents by a Wholly-Owned Subsidiary of a Borrower to a Borrower or another Wholly-Owned subsidiary of a Borrower constituting an Investment permitted hereunder and (b) Stock or Stock Equivalents by a Foreign Subsidiary of such Foreign Subsidiary to qualify directors where required pursuant to a Requirement of Law or to satisfy other requirements of applicable law, in each instance, with respect to the ownership of Stock of Foreign Subsidiaries.

     “E-Fax” means any system used to receive or transmit faxes electronically.

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     “E-Signature” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.

     “E-System” means any electronic system, including Intralinks® and ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other security system.

     “FDA” means the United States Food and Drug Administration and any successor thereto.

     “Federal Health Care Program” has the meaning specified in Section 1128B(f) of the SSA and includes the Medicare, Medicaid and TRICARE programs.

     “Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.

     “Fees” means any and all fees payable to Agent or any Lender pursuant to the Agreement or any of the other Loan Documents.

     “First Tier Foreign Subsidiary” means a Foreign Subsidiary more than fifty percent (50%) of the voting Stock (directly or through ownership of Stock Equivalents) of which are held directly by a Borrower or indirectly by a Borrower through one or more Domestic Subsidiaries.

     “Foreign Subsidiary” means, with respect to any Person, a Subsidiary of such Person, which Subsidiary is not a Domestic Subsidiary.

     “GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession), which are applicable to the circumstances as of the date of determination.

     “Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

     “Guaranty and Security Agreement” means that certain Guaranty and Security Agreement, dated as of the Original Closing Date, in form and substance reasonably acceptable to the Agent and Borrowers, made by the Credit Parties in favor of the Agent, for the benefit of the Secured Parties, as the same may be amended, restated and/or modified from time to time.

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     “Hazardous Materials” means any substance, material or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including petroleum or any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances.

     “HIPAA” means the Health Insurance Portability and Accountability Act of 1996.

     “Indebtedness” of any Person means, without duplication: (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of Property or services (other than trade payables entered into in the Ordinary Course of Business); (c) the face amount of all letters of credit issued for the account of such Person and without duplication, all drafts drawn thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such Person; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of Property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to Property acquired by the Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such Property); (f) all Capital Lease Obligations, the principal amount of which shall be the principal component thereof determined in accordance with GAAP; (g) the principal balance outstanding under any synthetic lease, off-balance sheet loan or similar off balance sheet financing product; (h) all obligations, whether or not contingent, to purchase, redeem, retire, defease or otherwise acquire for value any of its own Stock or Stock Equivalents (or any Stock or Stock Equivalent of a direct or indirect parent entity thereof) prior to the date that is 180 days after the date set forth in clause (a) of the definition of Revolving Termination Date, valued at, in the case of redeemable preferred Stock, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Stock plus accrued and unpaid dividends; (i) all indebtedness referred to in clauses (a) through (h) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in Property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness; and (j) all Contingent Obligations described in clause (i) of the definition thereof in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above.

     “Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case in (a) and (b) above, undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

     “Intellectual Property” means all rights, title and interests in or relating to intellectual property (including, without limitation, industrial property) arising under any Requirement of

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Law and all IP Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet domain names, Trade Secrets and IP Licenses.

     “Interest Payment Date” means the last day of each calendar month.

     “Inventory” means “inventory” (as such term is defined in the UCC) of any Borrower or any of its Subsidiaries, including, but not limited to, all merchandise, raw materials, parts, supplies, work in process and finished goods intended for sale, together with containers, packing, packaging, shipping and similar materials related thereto, and including such inventory as is temporarily out of a Borrower’s or such Subsidiary’s custody or possession, including inventory on the premises of others and items in transit.

     “Inventory Appraisal” means the appraisal of the Eligible Inventory of the Borrowers delivered to the Agent specifying the Net Orderly Liquidation Value of such Eligible Inventory and performed by an independent appraiser acceptable to the Agent; if more than one such Inventory Appraisal has been conducted, then the Net Orderly Liquidation Value on any date for the Eligible Inventory of the Borrowers shall be the value determined from the most recent Inventory Appraisal that is conducted pursuant to this Agreement and the report of which is satisfactory to the Agent. The initial Inventory Appraisal shall mean the appraisal of the Eligible Inventory dated as of July 31, 2008 and performed by AccuVal Associates, Incorporated.

     “IP Ancillary Rights” means, with respect to any other Intellectual Property, as applicable, all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right.

     “IP License” means all Contractual Obligations (and all related IP Ancillary Rights), whether written or oral, granting any right, title and interest in or relating to any Intellectual Property.

     “IRS” means the Internal Revenue Service of the United States and any successor thereto.

     “Lending Office” means, with respect to any Lender, the office or offices of such Lender specified as its “Lending Office” beneath its name on the applicable signature page hereto, or such other office or offices of such Lender as it may from time to time notify the Borrower Representative and the Agent.

     “Liabilities” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.

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     “Liquidity Factor” shall mean (i) total cash collections divided by (ii) (A) gross revenue minus (B) dilution, calculated as of a trailing twelve month period, as determined by Agent based on the most recent field examination obtained by Agent.

     “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement intended as security, encumbrance, lien (statutory or otherwise) for security or other security interest of any kind or nature whatsoever (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease, any financing lease having substantially the same economic effect as any of the foregoing, or the filing of any financing statement naming the owner of the asset to which such lien relates as debtor, under the UCC or any comparable law) and any contingent or other agreement to provide any of the foregoing, but not including the interest of a lessor under a lease which is not a Capital Lease.

     “Loan” means an extension of credit by a Lender to the Borrowers pursuant to Article I hereof.

     “Loan Documents” means this Agreement, the Notes, the Fee Letter, the Collateral Documents, the Subordination Agreement and all documents delivered to the Agent and/or any Lender in connection with any of the foregoing.

     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the Federal Reserve Board.

     “Material Adverse Effect” means: (a) a material adverse change in, or a material adverse effect upon, the operations, business, Properties, condition (financial or otherwise) or prospects of any Credit Party or the Credit Parties and the Subsidiaries taken as a whole; (b) a material impairment of the ability of any Credit Party, any Subsidiary of any Credit Party or any other Person (other than the Agent or Lenders) to perform in any material respect its obligations under any Loan Document; or (c) a material adverse effect upon (i) the legality, validity, binding effect or enforceability of any Loan Document, or (ii) the perfection or priority of any Lien granted to the Lenders or to the Agent for the benefit of the Secured Parties under any of the Collateral Documents.

     “Material Environmental Liabilities” means Environmental Liabilities exceeding $500,000 in the aggregate.

     “MBL Distribution Agreement” means that certain Exclusive Distribution Agreement dated as of March 22, 2007 between Akorn and the University of Massachusetts, as represented by the Massachusetts Biological Laboratories and as amended and modified in July 2008, March 2009 and April 2009 and as further amended, modified or supplemented from time to time.

     “Mortgage” means any deed of trust, leasehold deed of trust, mortgage, leasehold mortgage, deed to secure debt, leasehold deed to secure debt or other document creating a Lien on real Property or any interest in real Property.

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     “Multiemployer Plan” means any multiemployer plan, as defined in Section 4001(a)(3) of ERISA, as to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

     “Net Issuance Proceeds” means, in respect of any issuance of debt or equity, cash proceeds (including cash proceeds as and when received in respect of non-cash proceeds received or receivable in connection with such issuance), net of underwriting discounts and reasonable out-of-pocket costs and expenses paid or incurred in connection therewith in favor of any Person not an Affiliate of a Borrower.

     “Net Orderly Liquidation Value,” with respect to (a) any Inventory of the Borrowers on any date, means the orderly liquidation value of such Inventory expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all reasonable liquidation expenses, as determined from the Inventory Appraisal and (b) any Eligible Equipment of the Borrowers on any date, means the orderly liquidation value of such Eligible Equipment expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all reasonable liquidation expenses, as determined from the Equipment Appraisal.

     “Net Proceeds” means proceeds in cash, checks or other cash equivalent financial instruments (including Cash Equivalents) as and when received by the Person making a Disposition and insurance proceeds received on account of an Event of Loss, net of: (a) in the event of a Disposition (i) the direct costs relating to such Disposition excluding amounts payable to a Borrower or any Affiliate of a Borrower, (ii) sale, use or other transaction taxes paid or payable as a result thereof, and (iii) amounts required to be applied to repay principal, interest and prepayment premiums and penalties on Indebtedness secured by a Lien on the asset which is the subject of such Disposition and (b) in the event of an Event of Loss, (i) all money actually applied to repair or reconstruct the damaged Property or Property affected by the condemnation or taking, (ii) all of the costs and expenses reasonably incurred in connection with the collection of such proceeds, award or other payments, and (iii) any amounts retained by or paid to parties having superior rights to such proceeds, awards or other payments.

     “Non-U.S. Lender Party” means each of the Agent, each Lender, each SPV and each participant, in each case that is not a United States person under and as defined in Section 7701(a)(30) of the Code.

     “Note” means any Revolving Note and “Notes” means all such Notes.

     “Notice of Borrowing” means a notice given by the Borrower Representative to the Agent pursuant to Section 1.5, in substantially the form of Exhibit 11.1(c) hereto.

     “Obligations” means all Loans, and other Indebtedness, advances, debts, liabilities, obligations, covenants and duties owing by any Credit Party to any Lender, the Agent, any Secured Swap Provider or any other Person required to be indemnified, that arises under any Loan Document or any Secured Rate Contract, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, guaranty, indemnification or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired.

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     “Ordinary Course of Business” means, in respect of any transaction involving any Credit Party or any Subsidiary of any Credit Party, the ordinary course of such Person’s business, as conducted by any such Person in accordance with past practice or otherwise on a commercially reasonable basis and undertaken by such Person in good faith and not for purposes of evading any covenant or restriction in any Loan Document.

     “Organization Documents” means, (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, (b) for any partnership, the partnership agreement and, if applicable, certificate of limited partnership, (c) for any limited liability company, the operating agreement and articles or certificate of formation or (d) any other document setting forth the manner of election or duties of the officers, directors, managers or other similar persons, or the designation, amount or relative rights, limitations and preference of the Stock of a Person.

     “Original Closing Date” means January 7, 2009.

     “Patents” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to letters patent and applications therefor.

     “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56, as amended.

     “PBGC” means the United States Pension Benefit Guaranty Corporation or any successor thereto.

     “Pequot Capital” shall mean Pequot Capital Management, Inc. and any fund controlled or managed by Pequot Capital Management, Inc.

     “Permits” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

     “Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

     “Pledged Collateral” has the meaning specified in the Guaranty and Security Agreement and shall include any other Collateral required to be delivered to Agent pursuant to the terms of any Collateral Document.

     “Prior Indebtedness” means the Indebtedness and obligations specified on Schedule 11.1 hereto.

     “Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.

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     “Rate Contracts” means swap agreements (as such term is defined in Section 101 of the Bankruptcy Code) and any other agreements or arrangements designed to provide protection against fluctuations in interest or currency exchange rates.

     “Real Estate Appraisal” means the most recent appraisal of the Eligible Real Estate of the Borrowers specifying the Distressed Value of such Eligible Real Estate and performed by an independent appraiser acceptable to the Agent. The initial Real Estate Appraisals shall mean the appraisals of the Eligible Real Estate dated as of August 29, 2008 and performed by Cushman & Wakefield of Illinois, Inc.

     “Registrations” means authorizations, approvals, licenses, permits, certificates, or exemptions issued by any Governmental Authority (including pre-market approval applications, pre-market notifications, investigational device exemptions, product recertifications, manufacturing approvals and authorizations, CE Marks, pricing and reimbursement approvals, labeling approvals or their foreign equivalent) held by the Credit Parties or their Subsidiaries immediately prior to the Original Closing Date, that are required for the research, development, manufacture, distribution, marketing, storage, transportation, use and sale of the products of the Credit Parties and their Subsidiaries.

     “Related Agreements” means the Subordinated Note Documents.

     “Related Persons” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article II) and other consultants and agents of or to such Person or any of its Affiliates.

     “Related Transactions” means the transactions contemplated by the Related Agreements.

     “Releases” means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material into or through the environment.

     “Remedial Action” means all actions required to (a) clean up, remove, treat or in any other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre remedial studies and investigations and post-remedial monitoring and care with respect to any Hazardous Material.

     “Required Lenders” means at any time (a) Lenders then holding more than fifty percent (50%) of the Aggregate Revolving Loan Commitment then in effect, or (b) if the Aggregate Revolving Loan Commitments have terminated, Lenders then having more than fifty percent (50%) of the sum of the aggregate unpaid principal amount of Loans.

     “Requirement of Law” means, as to any Person, any law (statutory or common), ordinance, treaty, rule, regulation, order, policy, other legal requirement or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon such

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Person or any of its Property or to which such Person or any of its Property is subject, including without limitation the FDA Laws and the Federal Health Care Program Laws.

     “Reserves” means, with respect to the Borrowing Base (a) reserves established by Agent from time to time against Eligible Accounts and Eligible Inventory pursuant to Exhibit 11.1(b), and (b) such other reserves against Eligible Accounts, Eligible Inventory or Availability that Agent may, in its reasonable credit judgment, establish from time to time. Without limiting the generality of the foregoing, Reserves established with respect to past due credit balances, dilution, rent and allowance for doubtful accounts and to ensure the payment of accrued interest expenses or Indebtedness shall be deemed to be a reasonable exercise of Agent’s credit judgment, provided the amount of any such Reserve shall be determined in the Agent’s reasonable credit judgment.

     “Responsible Officer” means the chief executive officer, chief financial officer or the president of a Borrower or Borrower Representative, as applicable, or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants or delivery of financial information, the chief financial officer or the treasurer of a Borrower or Borrower Representative, as applicable, or any other officer having substantially the same authority and responsibility; or, with respect to Notices of Borrowing, the controller.

     “Restatement Effective Date’ means the date on which all conditions precedent set forth in Section 2.1(b) are satisfied or waived in writing by the Agent and all Lenders.

     “Revolving Credit Exposure” means, as of any date, the aggregate principal amount of Revolving Loans on such date.

     “Revolving Lender” means each Lender with a Revolving Loan Commitment (or if the Revolving Loan Commitments have terminated, who hold Revolving Loans).

     “Revolving Note” means a promissory note of the Borrowers payable to the order of a Lender in substantially the form of Exhibit 11.1(d) hereto, evidencing Indebtedness of the Borrowers under the Revolving Loan Commitment of such Lender.

     “Revolving Termination Date” means the earlier to occur of: (a) January 7, 2013; and (b) the date on which the Aggregate Revolving Loan Commitment shall terminate in accordance with the provisions of this Agreement.

     “Secured Party” means the Agent, each Lender, each other Indemnitee and each other holder of any Obligation of a Credit Party.

     “Secured Rate Contract” means any Rate Contract between Borrower and the counterparty thereto, which the Agent has acknowledged in writing constitutes a “Secured Rate Contract” hereunder.

     “Secured Swap Provider” means (a) a Lender or an Affiliate of a Lender (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of a Rate Contract) who has entered into a Secured Rate Contract with Borrower, or (b) a Person with whom Borrower has entered into a Secured Rate Contract.

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     “Serum” shall mean Serum Institute of India, Ltd.

     “Solvent” means, with respect to any Person as of any date of determination, that, as of such date, (a) the value of the assets of such Person (both at fair value and present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such liabilities mature and (c) such Person does not have unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

     “SPV” means any special purpose funding vehicle identified as such in a writing by any Lender to the Agent.

     “SSA” means the Social Security Act of 1935, codified at Title 42, Chapter 7, of the United States Code.

     “Stock” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting.

     “Stock Equivalents” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.

     “Subordinated Indebtedness” means the Indebtedness of any Credit Party or any Subsidiary of any Credit Party which is subordinated in right of payment to the Obligations, which shall be on terms and conditions, including subordination provisions, acceptable to the Agent, including without limitation the Indebtedness evidenced by the Subordinated Note.

     “Subordinated Lender” means the John N. Kapoor Trust dated September 20, 1989.

     “Subordinated Note Documents” means the Subordinated Note and all other documents, agreements and instruments executed in connection therewith.

     “Subordinated Note” means that certain Amended and Restated Subordinated Secured Promissory Note dated August 17, 2009 in the initial principal amount of $5,853,266.68 payable by Akorn in favor of the Subordinated Lender.

     “Subordination Agreement” means that certain Amended and Restated Subordination Agreement dated as of August 17, 2009 by and among the Agent, the Credit Parties and the Subordinated Lenders, as the same may be amended, restated and/or modified from time to time in accordance with the terms thereof.

     “Subsidiary” of a Person means any corporation, association, limited liability company, partnership, joint venture or other business entity of which more than fifty percent (50%) of the

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voting Stock (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof.

     “Tax Affiliate” means, (a) each Borrower and its Subsidiaries and (b) any Affiliate of a Borrower with which such Borrower files or is eligible to file consolidated, combined or unitary tax returns.

     “Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

     “Trade Secrets” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to trade secrets.

     “Trademark” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each case, all goodwill associated therewith, all registrations and recordations thereof and all applications in connection therewith.

     “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.

     “United States” and “U.S.” each means the United States of America.

     “U.S. Lender Party” means each of the Agent, each Lender, each, each SPV and each participant, in each case that is a United States person under and as defined in Section 7701(a)(30) of the Code.

     “Wholly-Owned Subsidiary” means any Subsidiary in which (other than directors’ qualifying shares required by law) one hundred percent (100%) of the Stock and Stock Equivalents, at the time as of which any determination is being made, is owned, beneficially and of record, by any Credit Party, or by one or more of the other Wholly-Owned Subsidiaries, or both.

     “Withdrawal Liabilities” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.

     11.2 Other Interpretive Provisions.

          (a) Defined Terms. Unless otherwise specified herein or therein, all terms defined in this Agreement or in any other Loan Document shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto. The meanings of defined terms shall be equally applicable to the singular and plural forms of the defined terms. Terms (including uncapitalized terms) not otherwise defined herein and that are defined in the UCC shall have the meanings therein described.

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          (b) The Agreement. The words “hereof”, “herein”, “hereunder” and words of similar import when used in this Agreement or any other Loan Document shall refer to this Agreement or such other Loan Document as a whole and not to any particular provision of this Agreement or such other Loan Document; and subsection, section, schedule and exhibit references are to this Agreement or such other Loan Documents unless otherwise specified.

          (c) Certain Common Terms. The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced. The term “including” is not limiting and means “including without limitation.”

          (d) Performance; Time. Whenever any performance obligation hereunder or under any other Loan Document (other than a payment obligation) shall be stated to be due or required to be satisfied on a day other than a Business Day, such performance shall be made or satisfied on the next succeeding Business Day. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including.” If any provision of this Agreement or any other Loan Document refers to any action taken or to be taken by any Person, or which such Person is prohibited from taking, such provision shall be interpreted to encompass any and all means, direct or indirect, of taking, or not taking, such action.

          (e) Contracts. Unless otherwise expressly provided herein or in any other Loan Document, references to agreements and other contractual instruments, including this Agreement and the other Loan Documents, shall be deemed to include all subsequent amendments, thereto, restatements and substitutions thereof and other modifications and supplements thereto which are in effect from time to time, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document.

          (f) Laws. References to any statute or regulation are to be construed as including all statutory and regulatory provisions related thereto or consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

     11.3 Accounting Terms and Principles. All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Borrowers shall be given effect for purposes of measuring compliance with any provision of Article V or VI unless the Borrowers, the Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP.

     11.4 Payments. The Agent may set up standards and procedures to determine or redetermine the equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise may, but shall not be obligated to, rely on any determination made by any Credit Party. Any such determination or redetermination by the Agent shall be conclusive and

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binding for all purposes, absent manifest error. No determination or redetermination by any Secured Party or any Credit Party and no other currency conversion shall change or release any obligation of any Credit Party or of any Secured Party (other than the Agent and its Related Persons) under any Loan Document, each of which agrees to pay separately for any shortfall remaining after any conversion and payment of the amount as converted. The Agent may round up or down, and may set up appropriate mechanisms to round up or down, any amount hereunder to nearest higher or lower amounts and may determine reasonable de minimis payment thresholds.

ARTICLE XII.
CROSS-GUARANTY

     12.1 Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower (“Guaranteed Obligations”). Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,

          (a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;

          (b) the absence of any action, against any Person other than such Borrower, to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;

          (c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);

          (d) the insolvency of any Credit Party; or

          (e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.

     Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Guaranteed Obligations.

     12.2 Waivers by Borrowers. Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Agent or Lenders to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Credit Party, any other party or against any security for the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to

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proceeding against, such Borrower. It is agreed among each Borrower, Agent and Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 12 and such waivers, Agent and Lenders would decline to enter into this Agreement.

     12.3 Benefit of Guaranty. Each Borrower agrees that the provisions of this Section 12 are for the benefit of Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Agent or Lenders, the obligations of such other Borrower under the Loan Documents.

     12.4 Subordination of Subrogation, Etc. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 12.7, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are paid in full in cash and the applicable preference period has passed. Each Borrower acknowledges and agrees that this subordination is intended to benefit Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 12, and that Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 12.4.

     12.5 Election of Remedies. If Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non judicial sale or enforcement, Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 12. If, in the exercise of any of its rights and remedies, Agent or any Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Agent or such Lender and waives any claim based upon such action, even if such action by Agent or such Lender shall result in a full or partial loss of any rights of subrogation that such Borrower might otherwise have had but for such action by Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. In the event Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, Agent or such Lender may bid all or less than the amount of the Obligations and the amount of such bid need not be paid by Agent or such Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 12, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale.

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     12.6 Limitation. Notwithstanding any provision herein contained to the contrary, each Borrower’s liability under this Section 12 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under Section 1) shall be limited to an amount not to exceed as of any date of determination the greater of:

          (a) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and

          (b) the amount that could be claimed by Agent and Lenders from such Borrower under this Section 12 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under Section 12.7.

     12.7 Contribution with Respect to Guaranty Obligations.

          (a) To the extent that any Borrower shall make a payment under this Section 12 of all or any of the Obligations (other than Loans made to that Borrower for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following payment in full in cash of the Obligations, termination of the Commitments and the passage of the applicable preference period, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.

          (b) As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 12 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.

          (c) This Section 12.7 is intended only to define the relative rights of Borrowers and nothing set forth in this Section 12.7 is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 12.1. Nothing contained in this Section 12.7 shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, Fees and expenses with respect thereto for which such Borrower shall be primarily liable.

91

          (d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Borrower to which such contribution and indemnification is owing.

          (e) The rights of the indemnifying Borrowers against other Credit Parties under this Section 12.7 shall be exercisable upon the full and payment of the Obligations, the termination of the Commitments and the passage of the applicable preference period.

     12.8 Liability Cumulative. The liability of Borrowers under this Section 12 is in addition to and shall be cumulative with all liabilities of each Borrower to Agent and Lenders under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any Obligations or obligation of the other Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.

     12.9 Reaffirmation of Collateral Documents.

          (a) Each Borrower hereby (i) reaffirms the execution and delivery of each Collateral Document to which it is a party; (ii) reaffirms each such Collateral Document in its entirety, including its obligations as set forth in each of the Collateral Documents to which it is a party; (iii) remakes the representations and warranties set forth in each Collateral Document for the benefit of Agent as of the date hereof and confirms that the information in each such document remains true and correct as of the date hereof; and (iv) agrees to continue to comply with, and be subject to, all of the terms, provisions, conditions, covenants, agreements and obligations applicable to it as set forth in each of the Collateral Documents to which it is a party, each of which remains in full force and effect.

          (b) Each Borrower hereby (i) acknowledges, confirms and agrees that each Collateral Document to which it is a party (A) is and shall continue to remain in full force and effect as security for the Obligations, (B) is the valid and binding obligation of such Person, and (C) is not subject to offset, deduction, defense or claim against the Agent or any Lender, and (ii) confirms, ratifies and reaffirms that the security interest granted to the Agent, for the benefit of the Agent and the Lenders, pursuant each Collateral Document to which it is a party in all of its right, title, and interest in all then existing and thereafter acquired or arising Collateral described therein, in order to secure prompt payment and performance of the Obligations, is continuing and is unimpaired and constitutes a first priority security interest (subject only to Permitted Liens) in favor of the Agent, for the benefit of the Agent and the Lenders, with the same force, effect and priority in effect both immediately prior to and after entering into this Agreement and the other Loan Documents.

          (c) Each Collateral Document is in full force and effect and is hereby ratified and confirmed in all respects, except that on and as of the date hereof, all references in any Collateral Document to “the Credit Agreement,” “thereto,” “thereof,” “thereunder” or words of like import referring to the Original Credit Agreement shall mean this Agreement.

[Balance of page intentionally left blank; signature page follows.]

92

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

AKORN, INC.
By:
	Title:
	FEIN: 72-0717400

Address for notices:

1925 West Field Court
Suite 300
Lake Forest, Illinois 60045
Attn: Timothy Dick
Facsimile: (847) 353-4936

Address for Wire Transfers:

Bank of America
135 South LaSalle Street
Chicago, IL 60603
ABA# 026009593
Account #5800508409
Account Name: Akorn, Inc.
 

[Signature Page to Amended and Restated Credit Agreement]

93

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

AKORN (NEW JERSEY), INC.
By:
	Title:
	FEIN: 36-4301474
Address for notices: 72 Veronica Avenue Somerset, New Jersey 08873 Attn: Facsimile:

94

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

EJ FUNDS LP, as the Agent and as a Lender By: EJ Financial Enterprises, Inc. Its: General Partner
By:
	John N. Kapoor
	President

Address for Notices:

EJ Funds LP
225 East Deerpath Road, Suite 250
Lake Forest, IL 60045
Attn: Rao Akella
Facsimile: (847) 295-8680

With a copy to:

McDermott Will & Emery LLP
227 W. Monroe Street, 47th Floor
Chicago, IL 60606
Attn: Thomas J. Murphy
Facsimile: (312) 984-7700

Address for payments:

ABA No.: 026009593
Wire Number: 000180019810
Bank: Bank of America
Wire Acct. Name: Trust Department TX Funds
            Transfer/Wire
Benefit: 72-01-101-1542745
Benefit Name: EJ Funds LP
Bank Contract: Linnea Ellison
             Tel # (312) 828 7142
 

95

Schedule 1.1(b)

Revolving Loan Commitments

EJ Funds, L.P. $10,000,000

Schedule 1.1(b)

SCHEDULE 3.2

STOCK OWNERSHIP
(As of July 31, 2009)

Issuer	Owner	Type of Security	Registration #	% Ownership
Akorn, Inc.	JNK Trust DTD 9/20/89	Common Stock			30.90
Akorn, Inc.	Arjun Waney	Common Stock			5.70
Akorn, Inc.	All Else	Common Stock			62.50
Akorn (New Jersey), Inc.	Akorn, Inc.	Common Stock			100.00

     Akorn, Inc. is authorized to issue 150,000,000 shares of common stock and 5,000,000 shares of preferred stock.

     Akorn (New Jersey), Inc. is authorized to issue 1000 shares of stock.

     Akorn, Inc. is the sole shareholder of Akorn (New Jersey), Inc.

     STOCK EQUIVALENTS:

     1. On March 8, 2006, Akorn, Inc. issued 4,311,669 shares of its common stock in a private placement with various investors at a price of $4.50 per share which included warrants to purchase 1,509,088 additional shares of common stock. The warrants are exercisable for a five year period at an exercise price of $5.40 per share and may be exercised by cash payment of the exercise price or by means of a cashless exercise. All 1,509,088 warrants remain outstanding as of September 30, 2008 (from Akorn, Inc.’s Form 10-Q, filed with the SEC on November 10, 2008).

     2. On August 23, 2004, Akorn, Inc. issued an aggregate of 141,000 shares of Series B 6.0% Participating Preferred Stock (“Series B Preferred Stock”) at a price of $100 per share, that was convertible into common stock at a price of $2.70 per share, to certain investors, with warrants to purchase 1,566,667 additional shares of common stock exercisable until August 23, 2009, with an exercise price of $3.50 per share (the “Series B Warrants”). There were 455,556 and 1,011,112 Series B Warrants outstanding as of December 31, 2007 and 2006, respectively (from Akorn, Inc.’s Form 10-K, filed with the SEC on March 17, 2008).

     3. Pursuant to the Modification Agreement, on April 13, 2009 Akorn, Inc issued EJ Funds a warrant (the “Modification Warrant”) to purchase 1,939,639 shares of its common stock at an exercise price of $1.11 per share, subject to certain adjustments. The Modification Warrant expires five years after its date of issuance and is exercisable upon payment of the exercise price in cash or by means of a cashless exercise yielding a net share figure.

     4. On April 15, 2009, Akorn, Inc. entered into a Reimbursement and Warrant Agreement (the “Reimbursement Agreement”) with EJ Funds and the Kapoor Trust, pursuant to which the Kapoor Trust agreed to provide an irrevocable standby letter of credit (“L/C”) as security for Akorn, Inc.’s payment obligations of $10,500,000 to the Massachusetts Biologic Laboratories of the University of Massachusetts (“MBL”) under its Letter Agreement dated March 27, 2009 (the “Letter Agreement”) and Settlement Agreement dated April 15, 2009 (the “Settlement Agreement”) with MBL. The Reimbursement Agreement provides, among other things, that Akorn, Inc. will reimburse the Kapoor Trust for any draws by MBL under the L/C. All of Akorn, Inc.’s obligations under the Reimbursement Agreement will be considered secured obligations under the Credit Agreement. Pursuant to the Reimbursement Agreement, Akorn, Inc. also issued a warrant to the Kapoor Trust (the “Reimbursement Warrant”) to purchase 1,501,933 shares of Akorn, Inc.’s common stock at an exercise price of $1.11 per share, subject to certain adjustments. The Reimbursement Warrant expires five years from the date of issuance and is exercisable upon payment of the exercise price in cash or by means of a cashless exercise yielding a net share figure. In addition, the Reimbursement Agreement provides that Akorn, Inc. must issue the Kapoor Trust additional warrants, at that same price of $1.11 per share, to purchase 200,258 shares of our common stock per $1,000,000 drawn on the L/C.

WARRANTS:

	Issue Date		Outstanding		Price
Series B		8/23/2004		455,556	$	3.50
PIPE		3/7/2006		1,509,088	$	5.40
Modification		4/13/09		1,939,639	$	1.11
Reimbursement		4/15/09		1,501,933	$	1.11

     5. Akorn, Inc.’s stockholders approved the 1988 Incentive Compensation Program (the “Incentive Program”) which expired November 2, 2003, under which any officer or key employee of Akorn, Inc. was eligible to receive options as designated by its Board of Directors. All options granted under the Incentive Program during the years ended December 31, 2003 and 2002 have exercise prices equivalent to the market value of Akorn, Inc.’s common stock on the date of grant. Options granted under the Incentive Program generally vest over a period of three years and expire within a period of five years. Akorn, Inc.’s stockholders approved the Akorn, Inc. 1991 Stock Option (the “1991 Directors’ Plan”) under which options were issuable to its directors, and which expired December 7, 2001. The Akorn, Inc. 2003 Stock Option Plan (“2003 Stock Option Plan”) was approved by Akorn, Inc.’s Board of Directors on November 6, 2003 and approved by its stockholders on July 8, 2004. Under the 2(X)3 Stock Option Plan, 2,519,000 options have been granted and 1,579,000 remain outstanding as of December 31, 2007. Options granted under the 2003 Stock Option Plan generally vest over a period of three years and expire within a period of five years. On March 29, 2005, Akorn, Inc.’s Board of Directors approved the Amended and Restated Akorn, Inc. 2003 Stock Option Plan (the “Amended 2003 Plan”), effective as of April 1, 2005, and this was subsequently approved by its stockholders on May 27, 2005. The Amended 2003 Plan is an amendment and restatement of the 2003 Stock Option Plan and provides the Akorn, Inc. with the ability to grant other types of equity awards to eligible participants besides stock options. The aggregate number of shares of

the Akorn, Inc.’s common stock that may be issued pursuant to awards granted under the Amended 2003 Plan is 5,000,000. Under the Amended 2003 Plan, 3,593,000 options have been granted to employees. These options generally vest over a period of three years and expire within a period of five years. In July 2009, Akorn, Inc.’s Board of Directors approved an amendment to the Company’s Amended and Restated Akorn, Inc. 2003 Stock Option Plan, which Akorn, Inc.’s shareholders approved at the 2009 annual meeting on August 7. Pursuant to the proposed amendment, the total number of shares authorized and reserved for issuance under the 2003 Plan will be increased by 6,000,000 from a total of 5,000,000 shares to a total of 11,000,000 shares effective September 1, 2009.

Options/Restricted Stock Awards

	Authorized		Outstanding		Available to Grant
2003 Plan		5,000,000		291,250		—
2003a Plan		5,000,000		3,080,360		1,348,000
Total				3,371,610		1,348,000

SCHEDULE 3.5

Litigation

On April 3, 2009, the Company’s former President and Chief Executive Officer, Arthur Przybyl, filed a demand for arbitration against the Company under his April 24, 2006 Executive Employment Agreement (the “Employment Agreement”). Mr. Przybyl initiated this arbitration with the Chicago, Illinois office of the American Arbitration Association under an arbitration provision in the Employment Agreement.

SCHEDULE 3.7

ERISA

• Medical

• Dental

• Life & AD&D

• Short Term Disability

• Long Term Disability

• Travel Accident

• Flexible Spending Accounts

• Smart Choice! Akorn’s 401(k) Retirement Plan

• Employee Stock Purchase Plan

SCHEDULE 3.12

Environmental

     Conditions disclosed in the Phase 1 Environmental Site Assessment relating to the Akorn (New Jersey), Inc. facility located at 72 Veronica Avenue #6, Somerset, Somerset County, New Jersey, dated October 8, 2008, Project No. 94087589A, prepared by Terracon.

     Conditions disclosed in the Phase I Environmental Site Assessment relating to the Akorn, Inc. facility located at 1222 West Grand Avenue, Decatur, Macon County, Illinois, dated October 3, 2008, Project No. 15087750, prepared by Terracon.

     Conditions disclosed in the Phase I Environmental Site Assessment relating to the Akorn, Inc. facility located at 150 S. Wyckles Road, Decatur, Macon County, Illinois, dated October 3, 2008, Project No. 15087753, prepared by Terracon.

SCHEDULE 3.15

Labor Relations

Not Applicable.

SCHEDULE 3.18

Brokers’ and Transaction Fees

Not Applicable.

SCHEDULE 3.22

Recalls

     Akorn, Inc. has only had one product recall since January 1, 2004.

     During 2008, Akorn, Inc. was notified by Becton Dickinson (“BD”) of BD’s 60ml syringe recall. This recall necessitated Akorn’s recall of the Cyanide Antidote Kit, which contained the subject syringe, along with other drug components produced / provided by Akorn, Inc. While no other such components are affected by this recall, Akorn, Inc. has undertaken to notify its direct customers of the BD syringe recall.

     Accordingly, Akorn, Inc. executed an FDA acknowledged recall activity to replace the affected syringes with unaffected syringes supplied by BD, or, to allow customers to return affected Cyanide Antidote Kits to Akorn, Inc., at which time Akorn, Inc. would replace the respective affected syringe with an unaffected syringe, and supply the customer with a replacement / reworked kit. Akorn, Inc. reported its administrative close-out of this recall to the FDA in June 2009.

SCHEDULE 5.1

Liens

     Lien evidenced by UCC Financing Statement listing Akorn, Inc., as Debtor, and First Personal Bank, as Assignee Secured Party, as filed with the Louisiana Secretary of State on May 9, 2008, relating to a new Inter-Tel 5000 communication system located in the Gurnee, Illinois premises.

     Lien evidenced by UCC Financing Statement listing Akorn, Inc., as Debtor, and First Personal Bank, as Assignee Secured Party, as filed with the Louisiana Secretary of State on July 24, 2008, relating to a new Inter-Tel 5000 communication system located in the Gurnee, Illinois premises.

     Lien evidenced by UCC Financing Statement listing Akorn, Inc., as Debtor, and Air Liquid Industrial U.S. LP, as Assignee Secured Party, as filed with the Louisiana Secretary of State on September 5, 2007, relating to 3000 gallon vertical vessels located at the Decatur, Illinois premises.

SCHEDULE 5.4

Investments

     Akorn, Inc. has made approximately $1,800,000 in capital contributions to own 50% of the membership interests in Akorn-Strides, LLC, a Delaware limited liability company. Akorn, Inc. does not intend to make any further capital contributions to Akorn-Strides, LLC.

SCHEDULE 5.5

Indebtedness

     On March 31, 2009, Akorn, Inc. consented to an Assignment Agreement (“Assignment”) between General Electric Capital Corporation and EJ Funds LP which transferred to EJ Funds all of GE’s rights and obligations under the Original Credit Agreement. Pursuant to the Assignment, EJ Funds became the agent and lender under the Original Credit Agreement. Accordingly, GE is no longer a lender to the Borrowers. EJ Financial is the general partner of EJ Funds.

On July 28, 2008, Akorn, Inc. borrowed $5,000,000 from the Kapoor Trust, and issued the Kapoor Trust a subordinated promissory note in the principal amount of $5,000,000, which subordinated promissory note is being replaced by an Amended and Restated Subordinated Promissory Note dated of even date herewith in the face amount of $5,853,266.68. The Amended and Restated Subordinated Promissory Note accrues interest at a rate of 15% per year.

SCHEDULE 5.9

Contingent Obligations

     Surviving indemnity obligations to the lenders identified under the Credit Agreement, dated as of October 7, 2003, as amended from time to time, relating to a credit facility in the amount of $15,000,000, made by LaSalle Bank National Association, as Administrative Agent for all Senior Lenders, to Akorn, Inc. and Akorn (New Jersey), Inc.

SCHEDULE 11.1

Prior Indebtedness

     Credit Agreement, dated as of October 7, 2003, as amended from time to time, relating to a credit facility in the amount of $15,000,000, made by LaSalle Bank National Association, as Administrative Agent for all Senior Lenders, to Akorn, Inc. and Akorn (New Jersey), Inc.

     Akorn and GE Capital, as agent and a lender, entered into the Original Credit Agreement.

EXHIBIT 2.1
TO
CREDIT AGREEMENT

CLOSING CHECKLIST

     The Agent shall have received on or prior to the Restatement Effective Date each of the following, each dated the Restatement Effective Date unless otherwise agreed by the Agent, in form and substance satisfactory to the Agent and each Lender:

     1. this Agreement duly executed by the Borrowers;

     2. a Revolving Note for each applicable Lender, each dated as of the Restatement Effective Date and duly executed by the Borrowers;

     3. the Restatement Warrant and Registration Rights Agreement, each dated as of the Restatement Effective Date and duly executed by Akorn;

     4. a copy of each Organization Document of each Credit Party that is on file with any Governmental Authority in any jurisdiction, certified as of a recent date by such Governmental Authority, together with, if applicable, certificates attesting to the good standing of such Credit Party in such jurisdiction and each other jurisdiction where such Credit Party is qualified to do business as a foreign entity or where such qualification is necessary (and, if appropriate in any such jurisdiction, related tax certificates);

     5. a certificate of the secretary or other officer of each Credit Party in charge of maintaining books and records of such Credit Party certifying as to (A) the names and signatures of each officer of such Credit Party authorized to execute and deliver any Loan Document, (B) the Organization Documents of such Credit Party attached to such certificate are complete and correct copies of such Organization Documents as in effect on the date of such certification (or, for any such Organization Document delivered pursuant to clause (3) above, that there have been no changes from such Organization Document so delivered) and (C) the resolutions of such Credit Party’s board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of each Loan Document to which such Credit Party is a party;

     6. a certificate of a Responsible Officer of the Borrower Representative to the effect that (A) each condition set forth in Section 2.2 has been satisfied, (B) there has been no material adverse change in the industry in which Borrowers operate; (C) no order, injunction or pending litigation exits in which there is a reasonable possibility of a decision that would have a Material Adverse Effect or could challenge any of the transactions contemplated by the Agreement and the other Loan Documents; and (D) each Credit Party is Solvent;

     7. if a Borrower is requesting a Borrowing, a Borrowing Base Certificate duly executed by the Borrower Representative, dated the Restatement Effective Date, reflecting information concerning Eligible Accounts, Eligible Inventory, Eligible Equipment and Eligible Real Estate of Borrowers as of a date not more than 15 days after the last day of the month that ends at least 45 days before the Restatement Effective Date.

     8. such other certificates, documents and agreements respecting any Credit Party as Agent may reasonably request.

EXHIBIT 4.2(b)
COMPLIANCE CERTIFICATE
Akorn, Inc.

Date:                    , 20___

     This Compliance Certificate (this “Certificate”) is given by Akorn, Inc., a Louisiana corporation (the “Borrower Representative”), pursuant to subsection 4.2(b) of that certain Amended and Restated Credit Agreement dated as of August 17, 2009 among Borrower Representative, Akorn (New Jersey), Inc. (together with Borrower Representative, the “Borrowers”), the other Credit Parties party thereto, EJ Funds LP, as administrative agent (in such capacity, “Agent”), and as a Lender, and the additional Lenders party thereto (as such agreement may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

     The officer executing this Certificate is a Responsible Officer of the Borrower Representative and as such is duly authorized to execute and deliver this Certificate on behalf of Borrowers. By executing this Certificate, such officer hereby certifies to Agent and Lenders on behalf of Borrowers, that:

     (a) the financial statements delivered with this Certificate in accordance with subsection 4.1(a), 4.1(b) and/or 4.1(c) of the Credit Agreement are correct and complete in all material respects and fairly present, in all material respects, in accordance with GAAP, the financial position and the results of operations of Borrowers and their Subsidiaries as of the dates of and for the periods covered by such financial statements (subject, in the case of interim financial statements, to normal year-end adjustments and the absence of footnote disclosure);

     (b) to the best of such officer’s knowledge, each Credit Party and each of their Subsidiaries, during the period covered by such financial statements, has observed and performed all of their respective covenants and other agreements in the Credit Agreement and the other Loan Documents to be observed, performed or satisfied by them, and such officer had not obtained knowledge of any Default or Event of Default [except as specified on the written attachment hereto];

     (c) if the date as of the date of this Certificate is on or after April 1, 2010, Exhibit A hereto is a correct calculation of each of the financial covenants contained in Article VI of the Credit Agreement; and

     (d) since the Closing Date and except as disclosed in prior Compliance Certificates delivered to Agent, no Credit Party and no Subsidiary of any Credit Party has:

(i)	changed its legal name, identity, jurisdiction of incorporation, organization or formation or organizational structure or formed or acquired any Subsidiary except as follows:                                                               ;
(ii)	acquired the assets of, or merged or consolidated with or into, any Person, except as follows:                                                               ; or

(iii) changed its address or otherwise relocated, acquired fee simple title to any real property or entered into any real property leases, except as follows:                                                                                                          .

     IN WITNESS WHEREOF, Borrower Representative has caused this Certificate to be executed by one of its Responsible Officers this ___ day of                     , 20___.

AKORN, INC., as Borrower Representative
 

By:  

Its: 

Note: Unless otherwise specified, all financial covenants are calculated for Borrowers and their Subsidiaries on a consolidated basis in accordance with GAAP and all calculations are without duplication.

EXHIBIT A TO EXHIBIT 4.2(b)
COMPLIANCE CERTIFICATE

Covenant 6.1 Fixed Charge Coverage

     Fixed Charge Coverage is defined as follows:

EBITDA (as defined below) for the applicable period of measurement	$
Fixed Charges is defined as the sum of the following, without duplication:
Cash Interest Expense:
Gross interest expense for such period paid or required to be paid in cash (including all commissions, discounts, fees and other charges in connection with letters of credit and similar instruments and net amounts paid or payable and/or received or receivable under permitted Rate Contracts in respect of interest rates) for the Borrowers and their Subsidiaries on a consolidated basis	$
Plus: Scheduled principal payments of Indebtedness during such period, including without limitation with respect to any Capital Leases, but excluding the repayment of the Prior Indebtedness and the repayment of the Subordinated Note to the extent permitted under Section 5.11(c).
Plus: Taxes on or measured by income paid or payable in cash during such period
Plus: Other Restricted Payments paid in cash during such period (excluding dividends from Subsidiaries of the Borrowers to the Borrowers or other Subsidiaries of the Borrowers)
Plus: The aggregate of all expenditures and other obligations for the applicable period ending on the last day of the month covered by such financial statements which should be capitalized under GAAP (“Capital Expenditures”), excluding Capital Expenditures financed by third parties, but including Capital Expenditures financed by drawings under the Revolving Loan Commitments.
Fixed Charges for the applicable period of measurement:	$

Fixed Charge Coverage (EBITDA divided by Fixed Charges)
Required Fixed Charge Coverage
In Compliance	Yes/No

Covenant 6.2 Minimum EBITDA

     EBITDA is defined as follows:

Net income (or loss) for the applicable period of measurement of Borrowers and their Subsidiaries on a consolidated basis determined in accordance with GAAP, but excluding: (a) the income (or loss) of any Person which is not a Subsidiary of a Borrower, except to the extent of the amount of dividends or other distributions actually paid to a Borrower or any of its Subsidiaries in cash by such Person during such period and the payment of dividends or similar distributions by that Person is not at the time prohibited by operation of the terms of its charter or of any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Person; (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of a Borrower or is merged into or consolidated with a Borrower or any of a Borrower’s Subsidiaries or that Person’s assets are acquired by a Borrower or a Borrower’s Subsidiaries; (c) the proceeds of any life insurance policy; (d) gains or losses from the sale, exchange, transfer or other disposition of Property or assets not in the Ordinary Course of Business of the Borrowers and their Subsidiaries, and related tax effects in accordance with GAAP; and (e) any other extraordinary or non-recurring gains or losses of the Borrowers or their Subsidiaries, and related tax effects in accordance with GAAP;	$
Less: To the extent not previously deducted in the calculation of Net Income, all research and development expenditures, including without limitation all payments made or required to be made under development funding agreements or similar agreements with third parties
Plus: All amounts deducted in calculating net income (or loss) for depreciation or amortization for such period
Plus: Interest expense (less interest income) deducted in calculating net income (or loss) for such period
Plus: All accrued taxes on or measured by income to the extent deducted in calculating net income (or loss) for such period

Plus: All non-cash losses or expenses (or minus non-cash income or gain) included or deducted in calculating net income (or loss) for such period, including, without limitation, any non-cash loss or expense due to the application of FAS No. 106 regarding post-retirement benefits, FAS No. 133 regarding hedging activity, FAS No. 142 regarding impairment of good will, FAS No. 150 regarding accounting for financial instruments with debt and equity characteristics and non-cash expenses deducted as a result of any grant of Stock or Stock Equivalents to employees, officers or directors, but excluding any non-cash loss or expense (a) that is an accrual of a reserve for a cash expenditure or payment to be made, or anticipated to be made, in a future period or (b) relating to a write-down, write off or reserve with respect to Accounts and Inventory,
Plus: Fees and expenses paid to Agent and Lenders in connection with the Loan Documents, to the extent deducted in calculating net income (or loss) for such period
EBITDA for the applicable period of measurement:	$
Required Minimum EBITDA	$
In Compliance	Yes/No

Covenant 6.3 Minimum Liquidity

     For purposes of Covenant 6.3, Liquidity is defined as follows:

The “Borrowing Base” (as calculated pursuant to the Borrowing Base Certificate) then in effect from time to time	$
Less: Such Reserves as may be imposed by Agent in its reasonable credit judgment but not reflected in the Borrowing Base Certificate	$
Plus: Available cash and Cash Equivalents in bank accounts and investment accounts in which the Agent has a first priority perfected Lien	$
Less: The aggregate outstanding principal amount of the Revolving Credit Exposure:	$
Liquidity as of the date of measurement	$
Required Minimum Liquidity	$
In Compliance	Yes/No

Covenant 6.4 Maximum Capital Expenditures

     For purposes of Covenant 6.4, Capital Expenditures are defined as follows:

The aggregate of all expenditures and obligations, for the relevant test period set forth in Section 6.4 of the Credit Agreement, which should be capitalized under GAAP	$
Less: Net Proceeds from Dispositions and/or Events of Loss which Borrower is permitted to reinvest pursuant to subsection 1.8(c) and which are included above
Less: To the extent included above, expenditures financed with cash proceeds from Excluded Equity Issuances
Capital Expenditures
Permitted Capital Expenditures (including carry forward of $______ from prior period)
In Compliance	Yes/No

EXHIBIT B TO EXHIBIT 4.2(b)
COMPLIANCE CERTIFICATE

Calculation of Cash Flow

EBITDA for the applicable period of measurement	$
Less: Unfinanced Capital Expenditures, which is defined as follows:
The aggregate of all expenditures and other obligations for the twelve month period ending on the last day of the month covered by such financial statements which should be capitalized under GAAP (“Capital Expenditures”)
Less: To the extent included above, expenditures financed with cash proceeds from Excluded Equity Issuances
Capital Expenditures
Less: Portion of Capital Expenditures financed under Capital Leases or other Indebtedness (Indebtedness, for this purpose, does not include drawings under the Revolving Loan Commitment)
Unfinanced Capital Expenditures (used in calculation of Cash Flow)
Cash Flow (used in calculation of Fixed Charge Coverage)	$

EXHIBIT 4.11

CASH MANAGEMENT SYSTEM

     The Borrowers shall, and shall cause its Subsidiaries to, establish and maintain the Cash Management Systems described below:

          (a) Each Credit Party shall, and shall cause each depository to, and each Borrower shall, and shall cause each securities intermediary or commodities intermediary, to enter into Control Agreements with respect to each deposit, securities, commodity or similar account maintained by such Person, as the case may be (other than any payroll account so long as such payroll account is a zero balance account and withholding tax and fiduciary accounts) not later than the Restatement Effective Date, or such later date as Agent may in its discretion agree in writing, with respect to such accounts maintained as of the Restatement Effective Date and not later than fifteen days after the formation with respect to any such account opened after the Restatement Effective Date. Each Credit Party shall deliver to Agent with such Control Agreements such legal opinions and other diligence as Agent shall reasonably request.

          (b) On or before the Restatement Effective Date, Borrowers shall have established a concentration account in their name into which the proceeds of the Lockbox Account will be transferred (the “Concentration Account”) at an Approved Bank. On or before the Restatement Effective Date and thereafter, until the Revolving Termination Date, Borrowers shall establish and maintain a lock box (a “Lock Box”) and an associated lockbox account (each a “Lockbox Account”) with an Approved Bank (the “Lockbox Bank”), subject to the provisions of this Agreement and shall execute with the Lockbox Bank a lockbox agreement in such form as may be reasonably acceptable to Agent. Borrowers shall direct their respective Account Debtors to make payments on all Accounts into such Lock Box for deposit into such Lockbox Account, and Borrowers shall cause all funds deposited into such Lockbox Account to be immediately transferred (but in all events within two (2) Business Days of such deposit) to the Concentration Account or to such other deposit account maintained by Agent as determined by Agent in its sole discretion by written notice to Borrowers and the Lockbox Bank.

          (c) Borrowers shall deposit, and cause their respective Subsidiaries to deposit or cause to be deposited, promptly, and in any event no later than the first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made or received in respect of any Collateral that have not been delivered to a Lock Box (without implying that such is permitted under the Credit Agreement) into the Concentration Account.

          (d) From and after the Restatement Effective Date, each Borrower may maintain, in such Borrower’s name, an account (each a “Disbursement Account” and collectively, the “Disbursement Accounts”) at an Approved Bank into which Agent shall, from time to time, deposit proceeds of Revolving Loans made to such Borrower pursuant to Section 1.1 for use by such Borrower in accordance with the provisions of Section 4.10.

          (e) Unless otherwise agreed by Agent, each Control Agreement for the Concentration Account and each Disbursement Account shall provide, among other things, that

(i) all items of payment deposited in such account and proceeds thereof deposited in the applicable deposit account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such deposit account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iii) (A) with respect to banks at which a Lockbox Account is maintained, such bank agrees to forward immediately all amounts in each Lockbox Account to the Concentration Account and (B) with respect to the Concentration Account, the applicable bank agrees to forward all amounts received in the Concentration Account to the Collection Account through sweeps from the Concentration Account on each Business Day into the Collection Account. So long as any Loan remains outstanding, Borrowers shall not, and shall not cause or permit any Subsidiary thereof to, accumulate or maintain cash in Disbursement Accounts or payroll accounts for (10) consecutive days (or if an Event of Default exists, at any date of determination) in excess of checks outstanding against such deposit accounts as of that date, plus amounts necessary to meet minimum balance requirements for such deposit accounts.

          (f) So long as no Event of Default has occurred and is continuing, Borrowers may add or replace a Lockbox Account, Concentration Account or any Disbursement Account with an Approved Bank, provided that concurrently with the opening of such account or Lock Box, Borrowers and such Approved Bank shall have executed and delivered to Agent a Control Agreement. Borrowers shall close any of its deposit accounts (and establish replacement deposit accounts in accordance with the foregoing sentence) promptly following the date on which any bank at which a deposit account is located that is, or is required to be, subject to a Control Agreement first fails to constitute an Approved Bank.

          (g) The Lock Boxes, Lockbox Accounts, Disbursement Accounts and the Concentration Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which, Borrowers and each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and the other Secured Parties, pursuant to the Guaranty and Security Agreement.

          (h) All amounts transferred to the Collection Account shall be deemed received by Agent in accordance with Section 1.10 and if applicable, the Fee Letter and shall be applied (and allocated) by Agent in accordance with Sections 1.10 and 1.11. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account. After application of any amounts transferred to the Collection Account in accordance with Sections 1.10 and 1.11, excess amounts shall be returned to the Disbursement Account.

EXHIBIT 11.1(a)
TO
CREDIT AGREEMENT

FORM OF ASSIGNMENT

     This ASSIGNMENT, dated as of the Effective Date, is entered into between                      (“the Assignor”) and                      (“the Assignee”).

     The parties hereto hereby agree as follows:

Borrowers:	Akorn, Inc., a Louisiana corporation and Akorn (New Jersey), Inc., an Illinois corporation (the “Borrowers”)
Agent:	EJ Funds LP, as Agent for the Lenders (in such capacity and together with its successors and permitted assigns, the “Agent”)
Credit Agreement:	Amended and Restated Credit Agreement, dated as of August 17, 2009, among the Borrowers, the other Credit Parties party thereto, the Lenders party thereto and the Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein without definition are used as defined in the Credit Agreement)
[Trade Date:	,                                 ] 2
Effective Date:	,                                  3

2	Insert for informational purposes only if needed to determine other arrangements between the assignor and the assignee.
3	To be filled out by Agent upon entry in the Register.

	Aggregate	Aggregate
	amount of	amount of
	Commitments	Commitments
	or	4 or
	Principal	Principal
Revolving Loan/	amount of	amount of	Percentage
Commitment	Loans for all	Loans	Assigned
Assigned	Lenders 5	Assigned 5	6
	$	$		.	%
	$	$		.	%
	$	$		.	%

4	Include Revolving Loans and interests, participations and obligations to participate in Letter of Credit Obligations.
5	Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. The aggregate amounts are inserted for informational purposes only to help in calculating the percentages assigned which, themselves, are for informational purposes only.
6	Set forth, to at least 9 decimals, the Assigned Interest as a percentage of the aggregate Commitment or Loans in the Facility. This percentage is set forth for informational purposes only and is not intended to be binding. The assignments are based on the amounts assigned not on the percentages listed in this column.

ASSIGNMENT
FOR AKORN, INC. AMENDED AND RESTATED CREDIT AGREEMENT

     Section 1. Assignment. Assignor hereby sells and assigns to Assignee, and Assignee hereby purchases and assumes from Assignor, Assignor’s rights and obligations in its capacity as Lender under the Amended and Restated Credit Agreement (including Liabilities owing to or by Assignor thereunder) and the other Loan Documents, in each case to the extent related to the amounts identified above (the “Assigned Interest “).

     Section 2. Representations, Warranties and Covenants of Assignors. Assignor (a) represents and warrants to Assignee and the Agent that (i) it has full power and authority, and has taken all actions necessary for it, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and (ii) it is the legal and beneficial owner of its Assigned Interest and that such Assigned Interest is free and clear of any Lien and other adverse claims and (iii) by executing signing and delivering this assignment via ClearPar® or any other electronic settlement system designated by the Agent, the Person signing, executing and delivering this Assignment on behalf of the Assignor is a duly authorized signatory for the Assignor and is authorized to execute, sign and deliver this agreement, (b) makes no other representation or warranty and assumes no responsibility, including with respect to the aggregate amount of the Loans and Commitments, the percentage of the Loans and Commitments represented by the amounts assigned, any statements, representations and warranties made in or in connection with any Loan Document or any other document or information furnished pursuant thereto, the execution, legality, validity, enforceability or genuineness of any Loan Document or any document or information provided in connection therewith and the existence, nature or value of any Collateral, (c) assumes no responsibility (and makes no representation or warranty) with respect to the financial condition of any Credit Party or the performance or nonperformance by any Credit Party of any obligation under any Loan Document or any document provided in connection therewith and (d) attaches any Notes held by it evidencing at least in part the Assigned Interest of such Assignor (or, if applicable, an affidavit of loss or similar affidavit therefor) and requests that the Agent exchange such Notes for new Notes in accordance with Section 1.2 of the Credit Agreement.

     Section 3. Representations, Warranties and Covenants of Assignees. Assignee (a) represents and warrants to Assignor and the Agent that (i) it has full power and authority, and has taken all actions necessary for Assignee, to execute and deliver this Assignment and to consummate the transactions contemplated hereby, (ii) it is not an Affiliate of ___, a Lender and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) by executing, signing and delivering this Assignment via ClearPar® or any other electronic settlement system designated by the Agent, the Person signing, executing and delivering this Assignment on behalf of the Assignor is a duly authorized signatory for the Assignor and is authorized to execute, sign and deliver this Agreement (b) appoints and authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of the Loan Documents, are required to be performed by it as a Lender,

(d) confirms it has received such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and shall continue to make its own credit decisions in taking or not taking any action under any Loan Document independently and without reliance upon Agent, any Lender or any other Indemnitee and based on such documents and information as it shall deem appropriate at the time, (e) acknowledges and agrees that, as a Lender, it may receive material non-public information and confidential information concerning the Credit Parties and their Affiliates and their Stock and agrees to use such information in accordance with Section 9.10 of the Credit Agreement, (f) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be paid under Section 9.9 of the Credit Agreement and (h) to the extent required pursuant to Section 10.2(f) of the Credit Agreement, attaches two completed originals of Forms W-8ECI, W-8BEN, W-8IMY or W-9 and, if applicable, a portfolio interest exemption certificate.

     Section 4. Determination of Effective Date; Register. Following the due execution and delivery of this Assignment by Assignor, Assignee and, to the extent required by Section 9.9 of the Credit Agreement, the Borrowers, this Assignment (including its attachments) will be delivered to the Agent for its acceptance and recording in the Register. The effective date of this Assignment (the “Effective Date“) shall be the later of (i) the acceptance of this Assignment by the Agent and (ii) the recording of this Assignment in the Register. The Agent shall insert the Effective Date when known in the space provided therefor at the beginning of this Assignment.

     Section 5. Effect. As of the Effective Date, (a) Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment, have the rights and obligations of a Lender under the Credit Agreement and (b) Assignor shall, to the extent provided in this Assignment, relinquish its rights (except those surviving the termination of the Commitments and payment in full of the Obligations) and be released from its obligations under the Loan Documents other than those obligations relating to events and circumstances occurring prior to the Effective Date.

     Section 6. Distribution of Payments. On and after the Effective Date, the Agent shall make all payments under the Loan Documents in respect of each Assigned Interest (a) in the case of amounts accrued to but excluding the Effective Date, to Assignor and (b) otherwise, to Assignee.

     Section 7. Miscellaneous. (a) The parties hereto, to the extent permitted by law, waive all right to trial by jury in any action, suit, or proceeding arising out of, in connection with or relating to, this Assignment and any other transaction contemplated hereby. This waiver applies to any action, suit or proceeding whether sounding in tort, contract or otherwise.

          (i) On and after the Effective Date, this Assignment shall be binding upon, and inure to the benefit of, the Assignor, Assignee, the Agent and their Related Persons and their successors and assigns.

          (j) This Assignment shall be governed by, and be construed and interpreted in accordance with, the law of the State of New York.

          (k) This Assignment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

          (l) Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Assignment by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart of this Assignment.

     IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

[NAME OF ASSIGNOR] as Assignor
By:
	Name:
	Title:
[NAME OF ASSIGNEE] as Assignee
By:
	Name:
	Title:
Lending Office (and address for notices)
for any other purpose:
[Insert Address (including contact name, fax number and e-mail address)]

[SIGNATURE PAGE FOR ASSIGNMENT FOR AKORN, INC. CREDIT AGREEMENT]

ACCEPTED and AGREED
this ___ day of ___:

EJ FUNDS LP, as Agent
By:	EJ Financial Management, Inc.
By:	John N. Kapoor
	Title: President

AKORN, INC. 7
By:
	Name:
	Title:
AKORN (NEW JERSEY), INC. 7
By:
	Name:
	Title:

7	Include only if required pursuant to Section 9.9 of the Credit Agreement.
7	Include only if required pursuant to Section 9.9 of the Credit Agreement.

EXHIBIT 11.1(b)

FORM OF BORROWING BASE CERTIFICATE

Accounts Receivable per Aging as of XX/XX/XX	—
Ineligibles
Payments in-transit (Unapplied Cash)	—
Cash Discounts reserve	—
Chargebacks reserve	—
Rebates/Distribution Fee reserve	—
Special Pricing Reserve	—
Foreign A/R	—
Government A/R	—
Deduct for Customer A/P due (Contra)	—
Past Due balance > 60 days	—
Cross-age (>50% past due)	—
AR Balance Exceeding Concentration Limit	—
Other	—
Total Ineligibles	—
Preliminary Eligible AR	—
Liquidity Factor
Adjusted Eligible Accounts Receivable	—
Advance Rate	85.0	%
Adjusted Eligible Accounts Receivable	—
Past Due Credit Balances	—
Available Accounts Receivable	—
Inventory per balance sheet as of XX/XX/XX	—
Reconciling Items
N/A	—
TOTAL	—
Inventory per GL sheet as of XX/XX/XX	—
Reconciling Items
WIP	—
Inventory in-transit	—
Other	—
TOTAL	—
Inventory per perpetual as of XX/XX/XX	—
Ineligibles

Components		—
Akron Strides Inventory — JV Inventory		—
Raw Materials		—
Expired Products		—
Product with Expiration < 6 months		—
FG Under Quarantine		—
Obsolete/Slow Moving		—
Product Net Realizable Value Reserve		—
Inventory Without License Consent		—
Other		—
Total Ineligible		—
Eligible Inventory		—
NOLV %		66.0	%
NOLV of Eligible Inventory		—
Advance Rate		85.0	%
Available Inventory		—
	OR
Eligible Inventory		—
Advance Rate		50.0	%
Available Inventory		—
Lesser of NOLV @ 85% or 50% Advance Rate (Capped @ 75% of Total Availability)		—
Less: Three-Month Rent Reserve (if applicable)		—
Net Available Inventory		—
NOLV M&E		—
Advance Rate		85.0	%
Available M&E		—
Real Estate		—
Advance Rate		50.0	%
Available Real Estate		—

Borrowing Base	—
Lesser of Borrowing Base or Aggregate Revolving Loan Commitment	—
Maximum Revolving Loan Balance (1)	—
Less Outstanding Revolver as of XX/XX/XX	—
Excess Availability Before Loan Request	—
Borrower Requests a Loan in the Amount of	—
New Loan Balance	—
Remaining Availability	—

     This certificate is given by the undersigned, being the Chief Financial Officer of Akorn, Inc., a Louisiana corporation (“Borrower Representative”), pursuant to Section 4.2(d) of that certain Amended and Restated Credit Agreement, dated as of August 17, 2009, among the Borrowers, the financial institutions party thereto from time to time as Lenders and EJ Funds LP, a Delaware limited partnership, as Agent and as a Lender, (as amended, restated, supplemented or otherwise modified from time to time the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

     I am the Chief Financial Officer and a Responsible Officer of the Borrower Representative and as such am duly authorized to execute and deliver this certificate on behalf of the Borrowers. By executing this certificate I hereby certify, in my capacity as Chief Financial Officer, to Agent and Lenders that:

          (d) Provided herein is a calculation of the Borrowing Base for the Borrowers as of the above date;

          (e) Based on the Borrowing Base, Availability as of the above date is: $

     IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate as of this ___ day of ___, 20___.

Signature:
	Name:
	Title:

EXHIBIT 11.1(c)
TO
CREDIT AGREEMENT

FORM OF NOTICE OF BORROWING

EJ FUNDS LP
as Agent under the Credit Agreement referred to below

Attention:

     Re: Akorn, Inc. and certain of its Subsidiaries (the “Borrowers”)

     Reference is made to the Amended and Restated Credit Agreement, dated as of August 17, 2009 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement “), among the Borrowers, Akorn, Inc. as Borrower Representative, the other Credit Parties, the Lenders party thereto and EJ Funds LP, as agent for such Lenders. Capitalized terms used herein without definition are used as defined in the Credit Agreement.

     The Borrower Representative, on behalf of Borrowers, hereby gives you irrevocable notice, pursuant to Section 1.5 of the Credit Agreement of its request of a Borrowing (the “Proposed Borrowing”) under the Credit Agreement and, in that connection, sets forth the following information:

THE DATE OF THE PROPOSED BORROWING IS                     , ___ (THE “FUNDING DATE”).

THE AGGREGATE PRINCIPAL AMOUNT OF REQUESTED REVOLVING LOANS IS $                    .

     The undersigned hereby certifies that, except as set forth on Schedule A attached hereto, the following statements are true on the date hereof and will be true on the Funding Date, both before and after giving effect to the Proposed Borrowing and any other Loan to be made or Letter of Credit to be Issued on or before the Funding Date:

     (a) except as otherwise waived in writing by the Required Lenders, the representations and warranties set forth in Article III of the Credit Agreement and elsewhere in the Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier contained therein), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct as of such date;

     (b) no Default or Event of Default has occurred and is continuing;

     (c) the aggregate outstanding amount of the Revolving Credit Exposure will not exceed the Maximum Revolving Loan Balance; and

     (d) after giving effect to such Loan and the application of the proceeds thereof on the date of funding (including depositing such funds in a Disbursement Account so long as cash in such Disbursement Account would not exceed (x) checks outstanding against such Disbursement Account as of that date, plus (y) amounts necessary to meet minimum balance requirements for such Disbursement Account), the aggregate cash and Cash Equivalents of Borrowers and their Subsidiaries will not exceed $5,000,000.

AKORN, INC., as the Borrower Representative
By:
	Name:
	Title:

EXHIBIT 11.1(d)
TO
CREDIT AGREEMENT

FORM OF REVOLVING LOAN NOTE

Lender: [NAME OF LENDER]	New York, New York
Principal Amount: $	, 20___

     FOR VALUE RECEIVED, the undersigned, AKORN, INC., a Louisiana corporation and AKORN (NEW JERSEY), INC. (the “Borrowers”), hereby promise to pay to the order of the Lender set forth above (the “Lender”) the Principal Amount set forth above, or, if less, the aggregate unpaid principal amount of all Revolving Loans (as defined in the Credit Agreement referred to below) of the Lender to the Borrowers, payable at such times and in such amounts as are specified in the Credit Agreement.

     The Borrowers promise to pay interest on the unpaid principal amount of the Revolving Loans from the date made until such principal amount is paid in full, payable at such times and at such interest rates as are specified in the Credit Agreement. Demand, diligence, presentment, protest and notice of non-payment and protest are hereby waived by the Borrowers.

     Both principal and interest are payable in Dollars to EJ Funds, L.P., as Agent, at the address set forth in the Credit Agreement, in immediately available funds.

     This Note is one of the Notes referred to in, and is entitled to the benefits of, the Amended and Restated Credit Agreement, dated as of August 17, 2009 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement “), among the Borrowers, the other Credit Parties party thereto, the Lenders party thereto and EJ Funds LP, as administrative agent for the Lenders. Capitalized terms used herein without definition are used as defined in the Credit Agreement.

     The Credit Agreement, among other things, (a) provides for the making of Revolving Loans by the Lender to the Borrowers in an aggregate amount not to exceed at any time outstanding the Principal Amount set forth above, the indebtedness of the Borrowers resulting from such Revolving Loans being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain stated events and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions specified therein.

     This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject to certain provisions of the Credit Agreement, including Sections 9.18(b) (Submission to Jurisdiction ), 9.20 ( Waiver of Jury Trial ) and 11.2 ( Other Interpretive Provisions) thereof.

     This Note is a registered obligation, transferable only upon notation in the Register, and no assignment hereof shall be effective until recorded therein.

     This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

     IN WITNESS WHEREOF, the Borrowers have caused this Note to be executed and delivered by its duly authorized officer as of the day and year and at the place set forth above.

AKORN, INC.
By:
	Name:
	Title:
AKORN (NEW JERSEY), INC.
By:
	Name:
	Title:

EXHIBIT 11.1(f)

ELIGIBLE ACCOUNTS

     “Eligible Accounts” shall mean all Accounts of the Borrowers reflected as accounts receivable on the Borrowers’ balance sheet (as of the date above), but solely to the extent of the unpaid portion of the obligations stated on the respective invoices issued to a customer of a Borrower with respect to inventory sold and shipped or services performed in the ordinary course of business, net of any credits, rebates, distribution fees, cash discounts, offsets, special pricing or chargebacks owed by such Borrower to the respective customer, excluding all Ineligible Accounts, multiplied by the Liquidity Factor

     “Ineligible Accounts” shall mean, without duplication,

          (a) Accounts that do not arise from the sale of goods or the performance of services by Borrowers in the ordinary course of their business or accounts arising from the sale of goods that have been returned;

          (b) Accounts (i) upon which a Borrower’s right to receive payment is not absolute or is contingent upon the fulfillment of any condition whatsoever or (ii) as to which a Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process, or (iii) if the Account represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to a Borrower’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer;

          (c) Any Account to the extent that any defense, counterclaim, setoff or dispute is asserted as to such Account, to the extent of the amount disputed;

          (d) Accounts that are not true and correct statements of bona fide indebtedness incurred in the amount of such Account for product sold to or services rendered and accepted by the applicable Account Debtor;

          (e) Accounts with respect to which an invoice, in Borrowers’ standard form previously approved by Agent or in another form reasonably acceptable to Agent in form and substance, has not been sent to the applicable Account Debtor;

          (f) Accounts that (i) are not owned by a Borrower or (ii) are subject to any right, claim, security interest or other interest of any other Person, other than Liens in favor of Agent, on behalf of itself and Lenders;

          (g) Accounts that arise from a sale to any director, officer, other employee or Affiliate of any Credit Party, or to any entity that has any common officer or director with any Credit Party;

          (h) Accounts that are the obligation of an Account Debtor that is the United States government or a political subdivision thereof, or any state, county or municipality or department, agency or instrumentality thereof unless Agent, in its sole discretion, has agreed to

the contrary in writing and Borrowers, if necessary or desirable, have complied with respect to such obligation with the Federal Assignment of Claims Act of 1940, or any applicable state, county or municipal law restricting the assignment thereof with respect to such obligation;

          (i) Accounts that are the obligations of an Account Debtor located in a foreign country other than Canada unless payment thereof is assured by a Letter of Credit assigned and delivered to Agent, satisfactory to Agent as to form, amount and issuer, or Agent has otherwise waived in writing the requirement to deliver a Letter of Credit with respect to such Account;

          (j) Accounts to the extent any Borrower or any Subsidiary thereof is liable for goods sold or services rendered by the applicable Account Debtor to any Borrower or any Subsidiary thereof but only to the extent of the potential offset;

          (k) Accounts that arise with respect to goods that are delivered on a bill and hold, cash on delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional;

          (l) Accounts that are in default; provided, that, without limiting the generality of the foregoing, an Account shall be deemed in default upon the occurrence of any of the following:

(i)	the Account is not paid within the earlier of: 60 days following its due date or 90 days following its original invoice date;
(ii)	the Account Debtor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or
(iii)	a petition is filed by or against any Account Debtor obligated upon such Account under any bankruptcy law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors;

          (m) Accounts that are the obligations of an Account Debtor if 50% or more of the Dollar amount of all Accounts owing by that Account Debtor are ineligible under the other criteria set forth in this Exhibit 11.1(f);

          (n) Accounts as to which Agent’s Lien thereon, on behalf of itself and Lenders, is not a first priority perfected Lien;

          (o) Accounts as to which any of the representations or warranties in the Loan Documents are untrue;

          (p) Accounts that are evidenced by a judgment, Instrument or Chattel Paper;

          (q) Accounts to the extent such Account exceeds any credit limit established by Agent, in its reasonable credit judgment, following prior notice of such limit by Agent to Borrowers;

          (r) Accounts to the extent that such Account, together with all other Accounts owing to such Account Debtor and its Affiliates as of any date of determination exceed 10% of all Eligible Accounts (the “Concentration Limit”); provided, however, that so long as any of the following Account Debtors have a credit rating of at least BB+/Ba1, or such other level as Agent may agree in writing from time to time, from S&P or Moody’s assigned to their senior, unsecured long-term debt securities, the Concentration Limit for such Account Debtor shall be as set forth below;

	Concentration
Account Debtor	Limit
AmerisourceBergen Corporation	25% of all Eligible Accounts
McKesson Drug Company	25% of all Eligible Accounts
Cardinal Health, Inc.	30% of all Eligible Accounts

provided, further, however, that so long as Henry Schein, Inc. owns at least 51% of GIV and either (i) the trailing four quarter profit of Henry Schein, Inc. is at least $50,000,000 or (ii) GIV has no past due Accounts, then the Concentration Limit for GIV shall be 30% of all Eligible Accounts.

          (s) Accounts that are payable in any currency other than Dollars; or

          (t) Accounts that are otherwise unacceptable to Agent in its reasonable credit judgment of which Borrower has been provided written notice.

EXHIBIT 11.1(g)

ELIGIBLE INVENTORY

     “Eligible Inventory” shall mean Inventory owned by a Borrower and located in the United States of America (as of the date above, including adequate reserves for obsolete, slow-moving or excess quantities), excluding all Ineligible Inventory.

     “Ineligible Inventory” shall mean, without duplication,

          (a) Inventory that is not owned by a Borrower free and clear of all Liens and rights of any other Person (including the rights of a purchaser that has made progress payments and the rights of a surety that has issued a bond to assure such Borrower’s performance with respect to that Inventory), except the Liens in favor of Agent, on behalf of itself and Lenders;

          (b) Inventory that (i) is not located on premises owned, leased or rented by Borrowers and set forth on Schedule IV to the Guaranty and Security Agreement, (ii) is stored at a leased location, unless Agent has given its prior consent thereto and unless (x) a reasonably satisfactory landlord waiver has been delivered to Agent, or (y) Reserves satisfactory to Agent have been established with respect thereto, (iii) is stored with a bailee or warehouseman unless a reasonably satisfactory, acknowledged bailee letter has been received by Agent or Reserves reasonably satisfactory to Agent have been established with respect thereto, or (iv) is located at an owned location subject to a mortgage in favor of a lender other than Agent, unless a reasonably satisfactory mortgagee waiver has been delivered to Agent, or (v) is located at any site if the aggregate book value of Inventory at any such location is less than $100,000;

          (c) Inventory that is placed on consignment or is in transit, except Inventory in transit between domestic locations of Borrowers as to which Agent’s Liens have been perfected at origin and destination;

          (d) Inventory that is covered by a negotiable document of title, unless such document has been delivered to Agent with all necessary endorsements, free and clear of all Liens except those in favor of Agent and Lenders;

          (e) Inventory that is slow moving, excess, discontinued, quarantined, expired, shopworn, seconds, damaged, obsolete, unmerchantable, defective, used, unfit for sale, having an expiration of less than six months, not salable at prices approximating at least the cost of such Inventory in the ordinary course of business or unacceptable due to age, type, category, quantity, and/or failure to meet applicable customer specifications or acceptance procedures; or which does not comply with the rules or regulations of the United States Food and Drug Administration or any similar regulatory body located in the jurisdiction in which such Inventory is held for sale; or which is the subject of a recall;

          (f) Inventory that consists of display items or packing or shipping materials, manufacturing supplies, work in process Inventory, raw materials or replacement parts;

          (g) Inventory that consists of goods which have been returned by the buyer;

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          (h) Inventory that is not of a type held for sale in the ordinary course of business of Borrowers;

          (i) Inventory that is not subject to a first priority lien in favor of Agent on behalf of itself and Lenders subject to Permitted Liens;

          (j) Inventory that breaches any of the representations or warranties pertaining to Inventory set forth in the Loan Documents;

          (k) Inventory that consists of any costs associated with “freight in” charges;

          (l) Inventory that consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available;

          (m) Inventory that is not covered by casualty insurance maintained in accordance with the Loan Documents;

          (n) Inventory that is otherwise unacceptable to Agent in its reasonable credit judgment; or

          (o) Inventory subject to any licensing, trademark, trade name or copyright agreements with any third parties which would require any consent of any third party for the sale or disposition of that Inventory (which consent has not been obtained) or the payment of any monies to any third party upon such sale or other disposition (to the extent of such monies).

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EX-10.2

Exhibit 10.2

EXECUTION COPY

THIS SECURITY AND THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS.

AKORN, INC.

COMMON STOCK PURCHASE WARRANT

To Purchase 1,650,806 Shares of Common Stock

     THIS COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, EJ FUNDS, LP, a Delaware limited partnership (the “Holder”), is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after August 17, 2009 (the “Initial Exercise Date”) and on or prior to the close of business on the fifth (5th) anniversary following the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from Akorn, Inc., a Louisiana corporation (the “Company”), up to One Million Six Hundred Fifty Thousand Eight Hundred Six (1,650,806) shares, subject to adjustment as set forth herein (the “Warrant Shares”) of Common Stock, no par value per share, of the Company (the “Common Stock”). The purchase price of one share of Common Stock (the “Exercise Price”) under this Warrant shall be $1.16 per share, subject to adjustment hereunder. The Exercise Price and the number of Warrant Shares for which the Warrant is exercisable shall be subject to adjustment as provided herein. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Registration Rights Agreement (the “Registration Rights Agreement”), dated as of August 17, 2009, between the Company and Holder.

     Concurrently with the issuance of this Warrant, the Holder is entering into an Amended and Restated Credit Agreement dated as of August 17, 2009 (the “Amended Credit Agreement”), pursuant to which the Holder is providing certain financial accommodations to the Company as described therein, and this Warrant is being issued to Holder as partial consideration therefor.

     1. Title to Warrant. Prior to the Termination Date and subject to compliance with applicable laws and Section 7 hereof, this Warrant and all rights hereunder are transferable, in whole or in part, at the office or agency of the Company by the Holder in person or by duly authorized attorney, upon surrender of this Warrant together with the Assignment Form annexed hereto properly endorsed. The transferee shall sign an investment letter in form and substance reasonably satisfactory to the Company.

     2. Authorization of Shares. The Company covenants that all Warrant Shares which may be issued upon any Exercise of the purchase rights represented by this Warrant will, upon such Exercise in accordance with the terms of this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). The Company shall at all times reserve and keep available for issue upon the Exercise of this Warrant such number of shares of its authorized but unissued Common Stock as will be sufficient to permit the Exercise in full of this Warrant.

     3. Exercise of Warrant.

          (a) Exercise of the purchase rights represented by this Warrant may be made at any time or times on or after the Initial Exercise Date and on or before the Termination Date by the surrender of this Warrant and the Notice of Exercise annexed hereto duly executed, at the office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of such Holder appearing on the books of the Company) to the attention of the Chief Executive Officer or the Chief Financial Officer (the “Exercise”, and the date of such Exercise, the “Exercise Date”). After each Exercise and upon the occurrence of the Exercise Effectiveness Date (as hereinafter defined), the Holder shall immediately thereafter be entitled to receive a certificate for the number of Warrant Shares so purchased upon payment of the Exercise

Price of the shares thereby purchased. Payment of the Exercise Price may be made at the option of the Holder by (i) by wire transfer or cashier’s check drawn on a United States bank of United States dollars or (ii) the surrender and cancellation of Warrant Shares issuable upon such Exercise of this Warrant (i.e. on a “cashless exercise” basis), in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

Where:	X =	Y (A – B)
		A

     X = The net number of shares of Common Stock to be issued to the Holder pursuant to the election to exercise;

     Y = The gross number of shares of Common Stock in respect of which the election to exercise is made;

     A = The average of the market price of one share of the Common Stock for the ten (10) Trading Days immediately prior to the Exercise Date; and

     B = The Exercise Price.

“Market Price” shall mean the closing sale price of the Company’s Common Stock as reported on the Nasdaq Global Market, or if not then traded on the Nasdaq Global Market, such closing sale or bid price as reported on any exchange over which the Company’s Common Stock may then be traded, or if not then traded over any exchange, then the market price of the Company’s Common Stock shall be the fair market value of the Company’s Common Stock as determined in good faith by the Board of Directors of the Company. Certificates for shares purchased hereunder shall be delivered to the Holder (at an address in the United States specified by the Holder) within five (5) Trading Days after the later of the Exercise Effectiveness Date and payment of the Exercise Price of the shares thereby purchased as aforesaid or the Company shall instruct its transfer agent to register the shares purchased hereunder in book entry form within five (5) Trading Days after the later of the Exercise Effectiveness Date and payment of the Exercise Price of the shares thereby purchased as aforesaid. This Warrant shall be deemed to have been exercised and such certificate or certificates (or book entry shares) shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the last to occur of the Exercise Effectiveness Date, payment of the Exercise Price, and delivery of the required documentation and all taxes required to be paid by the Holder, if any, pursuant to Section 5 . For purposes of this Warrant, a “Trading Day” shall mean any day on which the national securities exchange or the national market system of FINRA are open for trading.

          (b) If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.

          (c) The Holder understands that, until such time as the Registration Statement has been declared effective or the Warrant Shares may be sold pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, (i) the Company shall be entitled to give its transfer agent stop transfer instructions respecting those Warrant Shares and (ii) the certificates representing any Warrants Shares issued upon Exercise of this Warrant will bear a restrictive legend in substantially the following form:

“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY HAS RECEIVED AN

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OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.”

          (d) Reporting and Waiting Requirements.

               (i) To the extent necessary, each of and the Company and the Holder shall file, within fifteen (15) days after each Exercise Date, before the expiration of any relevant legal deadline, with (i) the FTC and the Antitrust Division of the DOJ, a Notification and Report Form required under the HSR Act with respect to the transactions contemplated pursuant to such Exercise and any supplemental information requested in connection therewith pursuant to the HSR Act, which forms shall specifically request early termination of the waiting period prescribed by the HSR Act and (ii) any other Governmental Authority, any other filings, reports, information and documentation required for the transactions contemplated hereby pursuant to any other antitrust law of any other jurisdiction. The parties shall furnish to each other’s counsel such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of any filing or submission that is necessary under the HSR Act and any antitrust law of any other jurisdiction. The requirements under this Section 3(d)(i) shall be satisfied with respect to any Exercise (without the need for further action by a party) upon the soonest to occur of: (a) the HSR Clearance Date has occurred (provided, however, that rights obtained by the Holder pursuant to the Warrant outside the United States shall become effective upon the HSR Clearance Date or, if any ex-U.S. governmental or regulatory approvals are required prior to such rights becoming effective, upon the later to occur of (1) the HSR Clearance Date and (2) the receipt of any such required approvals), or (b) determination by the parties that such filings are unnecessary (with respect to such Exercise, the “Exercise Effectiveness Date”). The determination of the soonest to occur of the foregoing shall be made without taking into account the need for ex-U.S. governmental or regulatory approvals required prior to such rights becoming effective and if, giving effect to the foregoing, subsection (a) is the soonest to occur, then the Exercise Effectiveness Date shall be the HSR Clearance Date.

               (ii) The parties shall use their reasonable best efforts to promptly obtain any clearance required under the HSR Act and any other antitrust law for the consummation of the Exercise and the transactions contemplated thereby and shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and other Governmental Authorities concerning such clearances and shall use reasonable best efforts to comply promptly with any such inquiry or request; provided, however, that (a) neither party shall be required to consent to the divestiture or other disposition of any of its or its affiliates’ assets or those of the other party, or to agree to any modification or amendment of this Warrant that, in the reasonable opinion of such party’s legal and/or financial counsel, would be adverse to such party, and (b) neither party shall have any obligation to contest, administratively or in court, any ruling, order or other action of any Governmental Authority or private party respecting the transactions contemplated by this Warrant or to comply with any other structure or conduct remedy or restriction or limit on operation; provided, further, however, that the parties shall both promptly respond to the DOJ or the FTC to a request for additional information as defined under the HSR Act.

               (iii) The parties commit to instruct their respective counsel to cooperate with each other and use reasonable best efforts to facilitate and expedite the identification and resolution of any such issues and, consequently, the expiration of the applicable HSR Act waiting period and the waiting periods under any other antitrust law of any other jurisdiction, or the obtaining of clearances thereunder (as the case may be), at the earliest practicable dates. Such efforts and cooperation include, but are not limited to, the parties’ respective counsel undertaking (i) to keep each other appropriately informed of communications from and to personnel of the reviewing antitrust authority, and (ii) to confer with each other regarding appropriate contacts with and response to personnel of said antitrust authority.

               (iv) Each Party shall be responsible for its own costs and expenses associated with any filing under the HSR Act or the Law of any other jurisdiction.

               (v) Certain Terms. As used in this Section 3(d), the below terms shall have the meanings so specified.

                    (1) “DOJ” shall mean the United States Department of Justice.

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                    (2) “FTC” shall mean the United States Federal Trade Commission, or any successor entity thereto.

                    (3) “Governmental Authority” shall mean any administrative agency, commission or other governmental authority, body or instrumentality, federal, state, local, domestic or foreign governmental or regulatory authority.

                    (4) “HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (15 U.S.C. Section 18(a)), and the rules and regulations promulgated thereunder.

                    (5) “HSR Clearance Date” shall mean the earlier of (i) the date on which the FTC shall notify the Company and the Holder of early termination of the applicable waiting period under the HSR Act or (ii) the day after the date on which the applicable waiting period under the HSR Act expires without any action by any government agency or challenged to the termination.

          (e) If within five (5) Trading Days after the later of the Exercise Effectiveness Date and payment of the Exercise Price of the shares thereby purchased, the Company shall fail to issue and deliver a certificate to the Holder (at an address in the United States specified by the Holder) and register such Warrant Shares on the Company’s share register, or instruct its transfer agent to register in book entry form the number of Warrant Shares to which the Holder is entitled or credit the Holder’s balance account with the Depository Trust Company for the number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise hereunder, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Warrant Shares issuable upon such Exercise that the Holder anticipated receiving from the Company, then the Company shall, within five (5) Trading Days after the Holder’s request promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased over the product of (A) such number of shares of Common Stock, times (B) the closing sale price of the Common Stock on the Trading Day immediately preceding the last possible date which the Company could have issued such Warrant Shares to the Holder without violating this Section 3(e) .

     4. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the Exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such Exercise, the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the market price of one share of the Common Stock for the ten (10) Trading Days immediately prior to the Exercise Date of this Warrant.

     5. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names (provided the Holder has complied with the restrictions on transfer set forth herein) as may be directed by the Holder; provided , however , that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.

     6. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely Exercise of this Warrant, pursuant to the terms hereof.

     7. Transfer, Division and Combination.

          (a) Subject to compliance with any applicable securities laws and the conditions set forth in Sections 1 and 7(e) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to

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pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. A Warrant, if properly assigned, may be Exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.

          (b) This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 7(a) hereof, as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice.

          (c) The Company shall prepare, issue and deliver at its own expense (other than transfer taxes) the new Warrant or Warrants under this Section 7 .

          (d) The Company agrees to maintain, at its aforesaid office, books for the registration and the registration of transfer of the Warrants.

          (e) Prior to, and as a condition of, any transfer of this Warrant, the Holder or transferee of this Warrant, as the case may be must (i) execute and deliver to the Company an investment letter in form and substance reasonably acceptable to the Company and (ii) qualify as an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act.

     8. No Rights as Stockholder until Exercise. This Warrant does not entitle the Holder to any voting rights or other rights as a stockholder of the Company prior to the Exercise hereof. Upon the surrender of this Warrant and the payment of the aggregate Exercise Price, the Warrant Shares so purchased shall be and be deemed to be issued to such Holder as the record owner of such shares as of the close of business on the later of the date of such surrender or payment.

     9. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond or letter of credit), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.

     10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a legal holiday, then such action may be taken or such right may be Exercised on the next succeeding day not a Saturday, Sunday or legal holiday.

     11. Adjustments of Exercise Price and Number of Warrant Shares. The number and kind of securities purchasable upon the Exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the happening of any of the following. In case the Company shall (i) pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock to holders of its outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock, then the number of Warrant Shares purchasable upon Exercise of this Warrant immediately prior thereto shall be adjusted so that the Holder shall be entitled to receive the kind and number of Warrant Shares or other securities of the Company which it would have owned or have been entitled to receive had such Warrant been exercised in advance thereof. Upon each such adjustment of the kind and number of Warrant Shares or other securities of the Company which are purchasable hereunder, the Holder shall thereafter be entitled to purchase the number of Warrant Shares or other securities resulting from such adjustment at an Exercise Price per Warrant Share or other security obtained by multiplying the Exercise Price in effect immediately prior to

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such adjustment by the number of Warrant Shares purchasable pursuant hereto immediately prior to such adjustment and dividing by the number of Warrant Shares or other securities of the Company resulting from such adjustment. An adjustment made pursuant to this paragraph shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.

     12. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets. In case of (i) any capital reorganization or reclassification, (ii) any consolidation or merger to which the Company is a party other than a merger or consolidation in which the Company is the continuing corporation, (iii) any sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or (iv) any statutory exchange of securities with another corporation (including any exchange effected in connection with a merger of a third corporation into the Company) (each, a “Fundamental Transaction”), the Holder of this Warrant shall have the right thereafter to receive on the Exercise of this Warrant the kind and amount of securities, cash or other property which the Holder would have owned or have been entitled to receive immediately after such Fundamental Transaction had this Warrant been exercised immediately prior to the effective date of such Fundamental Transaction and in any such case, if necessary, appropriate adjustment shall be made in the application of the provisions set forth in Section 11 hereof with respect to the rights and interests thereafter of the Holder of this Warrant to the end that the provisions set forth in Section 11 hereof shall thereafter correspondingly be made applicable, as nearly as may reasonably be, in relation to any shares of stock or other securities or property thereafter deliverable on the Exercise of this Warrant. The above provisions of this Section 12 shall similarly apply to successive Fundamental Transactions. The Company shall require the issuer of any shares of stock or other securities or property thereafter deliverable on the Exercise of this Warrant to be responsible for all of the agreements and obligations of the Company hereunder. Notice of any such Fundamental Transaction and of said provisions so proposed to be made, shall be mailed to the Holder of this Warrant not less than thirty (30) days prior to such event. A sale of all or substantially all of the assets of the Company for a consideration consisting primarily of securities shall be deemed a consolidation or merger for the foregoing purposes. Notwithstanding the foregoing, following a Fundamental Transaction in which all or substantially all of the outstanding Common Stock of the Company is exchanged for, converted into, acquired for or constitutes the right to receive solely cash (a “Triggering Event”), at the written request of the Holder delivered before the twentieth (20 ^th ) day after such Triggering Event, the Company (or the successor entity) shall purchase this Warrant from the Holder by paying to the Holder, within five days after such request, cash in an amount equal to the Black-Scholes Value (as defined below) of the remaining unexercised portion of this Warrant. “Black-Scholes Value” means the value of the unexercised portion of this Warrant calculated using the Black-Scholes Option Pricing Model determined as of the day immediately following the public announcement of the applicable Triggering Event and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant as of the date of such request and (ii) an expected volatility equal to the one-hundred (100) day volatility obtained from the HVT function on Bloomberg.

     13. Notice of Adjustment. Whenever the number of Warrant Shares or number or kind of securities or other property purchasable upon the Exercise of this Warrant or the Exercise Price is adjusted, as herein provided, the Company shall give notice thereof to the Holder, which notice shall state the number of Warrant Shares (and other securities or property) purchasable upon the Exercise of this Warrant and the Exercise Price of such Warrant Shares (and other securities or property) after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made.

     14. Notice of Distribution. If the Board of Directors of the Company shall declare any dividend or other distribution with respect to its Common Stock other than a cash distribution out of earned surplus, the Company shall mail notice thereof to the Holder of this Warrant not less than twenty (20) days prior to the record date fixed for determining stockholders entitled to participate in such dividend or other distribution. Each such written notice shall be sufficiently given if addressed to the Holder at the last address of the Holder appearing on the books of the Company and delivered in accordance with Section 16(d) hereof.

     15. Registration Rights. The Common Stock issuable upon Exercise of this Warrant shall constitute Registrable Securities (as such term is defined in the Registration Rights Agreement). The original Holder of this Warrant, and any valid transferees thereof pursuant to the Registration Rights Agreement, shall be entitled to all of the benefits afforded to a holder of any Registrable Securities under the Registration Rights Agreement and such

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holder, by its acceptance of this Warrant, agrees to be bound by and to comply with the terms and conditions of the Registration Rights Agreement applicable to the holder as a holder of Registrable Securities.

     16. Miscellaneous.

          (a) Jurisdiction. This Warrant shall constitute a contract under the laws of the State of Louisiana.

          (b) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the Exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal securities laws.

          (c) Nonwaiver. No course of dealing or any delay or failure to exercise any right hereunder on the part of the Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding all rights hereunder terminate on the Termination Date.

          (d) Notices. Any notice, request or other document required or permitted to be given or delivered under this Warrant will be in writing and will be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by confirmed facsimile, electronic or digital transmission method; the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and upon receipt, if sent by certified or registered mail, return receipt requested; provided, that upon any permitted assignment of this Warrant, the assignee shall promptly provide the Company with its contact information. In each case notice will be sent to: (i) if to the Company, addressed to: Akorn, Inc., 1925 West Field Court, Suite 300, Lake Forest, Illinois 60045, Attention: Jerry Ellis; or (ii) if to Holder, addressed to: EJ Funds LP, 225 East Deerpath Road, Suite 250, Lake Forest, IL 60045.

          (e) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to Exercise this Warrant or purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.

          (f) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.

          (g) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the successors and permitted assigns of the Holder.

          (h) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.

          (i) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.

          (j) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.

**** [Signature Page Follows] ****

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     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized.

Dated: August 17, 2009

AKORN, INC.
By:
	Name:
	Title:

[Signature Page to Common Stock Purchase Warrant]

NOTICE OF EXERCISE

To: Akorn, Inc.

     1. The undersigned hereby elects to purchase                      Warrant Shares of Akorn, Inc. pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price for such Warrant Shares in full, together with all applicable transfer taxes, if any. Payment shall take the form of lawful money of the United States.

     2. The undersigned hereby elects to exercise the attached Warrant into Warrant Shares of Akorn, Inc. through “cashless exercise” in the manner specified in the Warrant. This exercise is made with respect to                      of the Warrant Shares covered by the Warrant.

     3. Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is specified below:

The Warrant Shares shall be delivered to the following:

     4. Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.

[PURCHASER]
By:
	Name:
	Title:
	Dated:

ASSIGNMENT FORM

(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to exercise the Warrant.)

     FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to                                                 

whose address is

.

Dated:                          ,           

Holder’s Signature:

Holder’s Address:

Signature Guaranteed:

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.

EX-10.3

Exhibit 10.3

Execution Copy

AMENDED AND RESTATED

SUBORDINATED PROMISSORY NOTE

THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN AMENDED AND RESTATED SUBORDINATION AGREEMENT (AS AMENDED, RESTATED, MODIFIED OR REPLACED FROM TIME TO TIME, THE “SUBORDINATION AGREEMENT”) DATED AS OF AUGUST 17, 2009, AMONG THE JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989, AKORN, INC. (“AKORN”), AKORN (NEW JERSEY), INC. (“AKORN NEW JERSEY” AND TOGETHER WITH AKORN, THE “COMPANIES”, AND EACH A “COMPANY”), AND EJ FUNDS, LP (“AGENT”), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANIES PURSUANT TO THAT CERTAIN CREDIT AGREEMENT DATED AS OF JANUARY 9, 2009 AMONG THE COMPANIES, GENERAL ELECTRIC CAPITAL CORPORATION, AS A LENDER AND AS AGENT FOR THE LENDERS (“GE CAPITAL”) AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS SUCH CREDIT AGREEMENT HAS BEEN (I) ASSIGNED BY GE CAPITAL AND THE OTHER LENDERS A PARTY THERETO TO EJ FUNDS LP, AS AGENT AND LENDER PURSUANT TO AN ASSIGNMENT AGREEMENT DATED AS OF MARCH 31, 2009, (II) AMENDED PURSUANT TO A MODIFICATION WARRANT AND INVESTOR RIGHTS AGREEMENT DATED AS OF THE APRIL 13, 2009 AMONG THE COMPANIES AND EJ FUNDS LP, AS AGENT AND LENDER, AS FURTHER AMENDED AND RESTATED BY THE (III) AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST [•], 2009 AMONG THE COMPANIES AND EJ FUNDS LP, AS AGENT AND LENDER, AND (IV) HEREAFTER MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE INDEBTEDNESS UNDER THAT AGREEMENT 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.

THIS SUBORDINATED PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE OFFERED, SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS, OR AN EXEMPTION FROM REGISTRATION THEREUNDER.

US $5,853,266.68 (includes all accrued interest through the date hereof) August 17, 2009

     FOR VALUE RECEIVED, AKORN, INC., a Louisiana corporation (“Akorn”) and AKORN (NEW JERSEY), INC., an Illinois corporation (“Akorn New Jersey”) and collectively with Akorn, the “Makers” and each a “Maker”), hereby promise jointly and severally to pay to the order of THE JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989, or its permitted successors or assigns (“Payee”), the aggregate principal sum equal to $5,853,266.68 (equal to the sum of (i) the stated principal amount outstanding of the Prior Note (as defined below) of Five Million Dollars ($5,000,000), (ii) $804,892.58 of outstanding accrued but unpaid interest under the Prior Note as of its stated date of maturity and (iii) $48,374.10 of additional outstanding accrued but unpaid interest arising from and after the stated date of maturity of the Prior Note through and including the date hereof), on the terms and conditions set forth below, and to pay to Payee interest on the unpaid principal balance hereof at the rate and on the terms and conditions set forth herein.

     1. Payment of Principal. The principal amount of this Subordinated Promissory Note (the “Note”), together with all unpaid interest accrued hereon, shall be due and payable on the five year anniversary of the date hereof (the “Maturity Date”).

     2. Payment of Interest. The unpaid principal balance due hereunder shall bear interest at a fixed annual rate (based on a 360-day year) of fifteen percent (15%) (the “Interest Rate”) and such interest shall accrue monthly in arrears (each, whether at the Interest Rate or Default Interest Rate (as defined below), an “Interest

Payment”) on the first day of each month (each, an “Interest Payment Date”) commencing on September 1, 2009; provided that upon the occurrence of a Default, the outstanding principal balance hereunder shall accrue at a fixed annual rate (based on a 360-day year) of twenty percent (20%) (the “Default Interest Rate”). All accrued interest (including any interest at the Default Interest Rate) shall be paid in kind, and the amount thereof shall be added to the outstanding principal balance of this Note on such Interest Payment Date and, thereafter, for all purposes under this Note, references to the “principal amount” of this Note shall include the amount of any Interest Payment that has been added to the outstanding principal balance of this Note.

     3. Subordination. Pursuant to the terms of the Subordination Agreement, this Note and the indebtedness evidenced hereby shall at all times be and remain subordinated to any indebtedness owed to such senior lenders (any such indebtedness being collectively referred to herein as the “Senior Indebtedness”).

     4. Prepayment. Makers may, at their option at any time and from time to time hereafter, to the extent not prohibited by the Subordination Agreement, prepay, in whole but not in part, this Note by making payment to Payee of an amount equal to one hundred ten percent (110%) of the total amount of all outstanding obligations under this Note (including, without limitation, all principal and accrued but unpaid interest thereon to the date of prepayment).

     5. Defaults. Makers shall be deemed in default hereunder upon the occurrence of any of the following (a “Default”):

     (a) The failure of Makers to make the payment due hereunder on the Maturity Date;

     (b) Either Maker becomes insolvent or generally fails to pay, or admits in writing its inability or refusal to pay, debts as they become due; or either Maker applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian for such Maker or any property thereof, or makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for either Maker or for a substantial part of the property of either Maker and is not discharged within 60 days; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is commenced in respect of either Maker, and if such case or proceeding is not commenced by such Maker, it is consented to or acquiesced in by such Maker, or remains for 60 days undismissed; or either Maker takes any action to authorize, or in furtherance of, any of the foregoing; or

     (c) An “Event of Default” under and as defined in the senior credit agreement of Makers has occurred and is continuing and the lenders of any Senior Indebtedness thereunder have accelerated the maturity of such Senior Indebtedness.

     6. Consequence of Default. Upon the occurrence of a Default, the entire then unpaid principal balance hereof and all interest then accrued and unpaid thereon and all other sums payable hereunder shall, at the option of Payee, become immediately due and payable. Notwithstanding the foregoing, if there shall occur a Default under Section 5(a) or (b) above, the entire then unpaid principal balance hereof and all interest then accrued and unpaid thereon and all other sums payable hereunder, shall become immediately due and payable without any action on the part of Payee.

     7. Miscellaneous.

     (a) Principal and interest due hereunder shall be payable in lawful money of the United States of America. All payments shall be applied first to accrued and unpaid interest and thereafter to principal.

     (b) If any payment due on this Note shall become due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day. “Business Day” means any day on which banks are generally open for commercial banking business in Chicago, Illinois

     (c) No delay or omission on the part of Payee in the exercise of any right or remedy hereunder shall operate as a waiver thereof.

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     (d) If a Default shall occur under this Note, Makers shall pay on demand, subject to the terms of the Subordination Agreement, all reasonable costs and expenses of collection of Payee, including reasonable attorneys’ fees.

     (e) No amendment, modification, termination or waiver of any provision of this Note shall be effective unless the same shall be in writing and signed by Makers and Payee.

     (f) All notices hereunder shall be in writing (including facsimile transmission) and shall be sent to the applicable party at its address shown below or at such other address as such party may, by written notice received by the other parties, have designated as its address for such purpose. Notices sent by facsimile transmission shall be deemed to have been given when sent; notices sent by mail shall be deemed to have been given three Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier service shall be deemed to have been given when received.

Notices shall be addressed as follows:

If to Payee:

The John N. Kapoor Trust
c/o Dr. John N. Kapoor
225 E. Deerpath Road
Suite 250
Lake Forest, Illinois 60045
Telecopy: (847) 295-8680

With a copy to:

McDermott Will & Emery LLP
227 West Monroe Street
Chicago, Illinois 60606
Attention: Thomas Murphy
Telecopy: (312) 984-7700

If to a Maker:

1925 Field Court, Suite 300
Lake Forest, Illinois 60045
Attention: Chief Financial Officer
Telecopy: (847) 353-4936

With a copy to:

Bryan Cave LLP
161 North Clark Street, Suite 4300
Chicago, Illinois 60601
Attention: Donald E. Figliulo
Telecopy: (312) 698-7425

     (g) This Note may not be assigned (by operation of law or otherwise) by any Maker without the prior written consent of the Payee.

     (h) Makers shall be entitled to deduct and withhold from the amounts payable pursuant to this Note such amounts as it is required to deduct and withhold with respect to the making of such payment under any tax law. To the extent that amounts are so withheld or paid over to or deposited with the relevant taxing authority by Makers, such amounts shall be treated for all purposes of this Note as having been paid to Payee in respect of which such deduction and withholding was made by Maker.

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     (i) If interest payable under this Note is in excess of the maximum permitted by law, the interest chargeable hereunder shall be reduced to the maximum amount permitted by law and any excess over the maximum amount permitted by law shall be credited to the principal balance of this Note and applied to the same and not to the payment of interest.

     (j) This Note is to be governed by, and construed and enforced in accordance with, the laws of the State of Illinois, without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction.

     (k) This Note amends, restates, renews and replaces a Subordinated Promissory Note dated June 28, 2008 in the principal amount of $5,000,000.00 (the “Prior Note”). The stated principal amount of this note, which is the sum of (i) the stated principal amount of the Prior Note, (ii) $804,892.58 of outstanding accrued but unpaid interest under the Prior Note as of its stated date of maturity and (iii) $48,374.10 of additional outstanding accrued but unpaid interest arising from and after the stated date of maturity of the Prior Note through and including the date hereof, shall be deemed as principal amounts hereunder, and all guarantees, security interests and collateral given to support and/or secure such Prior Note shall continue in full force and effect from and after the date hereof and guaranty and secure all obligations under this Note. Nothing in this Note shall be construed to constitute a novation of the obligations of any Maker arising under the Prior Note, or to release, satisfy, discharge or otherwise affect or impair in any manner whatsoever (a) the validity or enforceability of the obligations under the Prior Note or (b) the charges, liens, pledges, security interests, assignments and conveyances effected by the Guaranty and Security Agreement dated as of May 27, 2009 among the Makers, Payee and each other party thereto entered into in connection with the Prior Note (the “Subordinated Security Agreement”) and any other agreement securing the obligations arising under the Prior Note, or the priority thereof. Each Maker hereby (x) restates, ratifies and reaffirms, subject to the modifications provided for in this Note, each and every term, covenant and condition set forth in the Prior Note and the Subordinated Security Agreement effective as of the date hereof, (y) acknowledges receipt of a copy of this Note, (z) consents to this Note and agrees to be bound hereby and (w) agrees that its guaranty of all obligations owed by the Makers, as set forth in the Guaranty and Security Agreement to which it is a party, will continue in full force and effect without diminution or impairment notwithstanding the execution and delivery of this Note.

[signature page follows]

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IN WITNESS WHEREOF, this Note has been executed as of the date first written above.

AKORN, INC.
By:
	Title:

AKORN (NEW JERSEY), INC.
By:
	Title:

5

EX-10.4

Exhibit 10.4

EXECUTION COPY

THIS SECURITY AND THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS.

AKORN, INC.

COMMON STOCK PURCHASE WARRANT

To Purchase 2,099,935 Shares of Common Stock

     THIS COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, THE JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989 (the “Holder”), is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after August 17, 2009 (the “Initial Exercise Date”) and on or prior to the close of business on the fifth (5th) anniversary following the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from Akorn, Inc., a Louisiana corporation (the “Company”), up to Two Million Ninety-Nine Thousand Nine Hundred Thirty-Five (2,099,935) shares, subject to adjustment as set forth herein (the “Warrant Shares”) of Common Stock, no par value per share, of the Company (the “Common Stock”). The purchase price of one share of Common Stock (the “Exercise Price”) under this Warrant shall be $1.16 per share, subject to adjustment hereunder. The Exercise Price and the number of Warrant Shares for which the Warrant is exercisable shall be subject to adjustment as provided herein. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Registration Rights Agreement (the “Registration Rights Agreement”), dated as of August 17, 2009, between the Company and Holder.

     Concurrently with the issuance of this Warrant, the Holder is entering into an Amended and Restated Subordination Agreement dated as of August 17, 2009 (the “Amended Subordination Agreement”), pursuant to which the Holder is providing certain financial accommodations to the Company as described therein, and this Warrant is being issued to Holder as partial consideration therefor.

     1. Title to Warrant. Prior to the Termination Date and subject to compliance with applicable laws and Section 7 hereof, this Warrant and all rights hereunder are transferable, in whole or in part, at the office or agency of the Company by the Holder in person or by duly authorized attorney, upon surrender of this Warrant together with the Assignment Form annexed hereto properly endorsed. The transferee shall sign an investment letter in form and substance reasonably satisfactory to the Company.

     2. Authorization of Shares. The Company covenants that all Warrant Shares which may be issued upon any Exercise of the purchase rights represented by this Warrant will, upon such Exercise in accordance with the terms of this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). The Company shall at all times reserve and keep available for issue upon the Exercise of this Warrant such number of shares of its authorized but unissued Common Stock as will be sufficient to permit the Exercise in full of this Warrant.

     3. Exercise of Warrant.

          (a) Exercise of the purchase rights represented by this Warrant may be made at any time or times on or after the Initial Exercise Date and on or before the Termination Date by the surrender of this Warrant and the Notice of Exercise annexed hereto duly executed, at the office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of such Holder appearing on the books of the Company) to the attention of the Chief Executive Officer or the Chief Financial Officer (the “Exercise”, and the date of such Exercise, the “Exercise Date”). After each Exercise and upon the occurrence of the Exercise Effectiveness Date (as hereinafter defined), the Holder shall immediately thereafter

be entitled to receive a certificate for the number of Warrant Shares so purchased upon payment of the Exercise Price of the shares thereby purchased. Payment of the Exercise Price may be made at the option of the Holder by (i) by wire transfer or cashier’s check drawn on a United States bank of United States dollars or (ii) the surrender and cancellation of Warrant Shares issuable upon such Exercise of this Warrant (i.e. on a “cashless exercise” basis), in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula:

Where:	X =	Y (A – B)
		A

     X = The net number of shares of Common Stock to be issued to the Holder pursuant to the election to exercise;

     Y = The gross number of shares of Common Stock in respect of which the election to exercise is made;

     A = The average of the market price of one share of the Common Stock for the ten (10) Trading Days immediately prior to the Exercise Date; and

     B = The Exercise Price.

“Market Price” shall mean the closing sale price of the Company’s Common Stock as reported on the Nasdaq Global Market, or if not then traded on the Nasdaq Global Market, such closing sale or bid price as reported on any exchange over which the Company’s Common Stock may then be traded, or if not then traded over any exchange, then the market price of the Company’s Common Stock shall be the fair market value of the Company’s Common Stock as determined in good faith by the Board of Directors of the Company. Certificates for shares purchased hereunder shall be delivered to the Holder (at an address in the United States specified by the Holder) within five (5) Trading Days after the later of the Exercise Effectiveness Date and payment of the Exercise Price of the shares thereby purchased as aforesaid or the Company shall instruct its transfer agent to register the shares purchased hereunder in book entry form within five (5) Trading Days after the later of the Exercise Effectiveness Date and payment of the Exercise Price of the shares thereby purchased as aforesaid. This Warrant shall be deemed to have been exercised and such certificate or certificates (or book entry shares) shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the last to occur of the Exercise Effectiveness Date, payment of the Exercise Price, and delivery of the required documentation and all taxes required to be paid by the Holder, if any, pursuant to Section 5 . For purposes of this Warrant, a “Trading Day” shall mean any day on which the national securities exchange or the national market system of FINRA are open for trading.

          (b) If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.

          (c) The Holder understands that, until such time as the Registration Statement has been declared effective or the Warrant Shares may be sold pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, (i) the Company shall be entitled to give its transfer agent stop transfer instructions respecting those Warrant Shares and (ii) the certificates representing any Warrants Shares issued upon Exercise of this Warrant will bear a restrictive legend in substantially the following form:

“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY HAS RECEIVED AN

2

OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.”

          (d) Reporting and Waiting Requirements.

               (i) To the extent necessary, each of and the Company and the Holder shall file, within fifteen (15) days after each Exercise Date, before the expiration of any relevant legal deadline, with (i) the FTC and the Antitrust Division of the DOJ, a Notification and Report Form required under the HSR Act with respect to the transactions contemplated pursuant to such Exercise and any supplemental information requested in connection therewith pursuant to the HSR Act, which forms shall specifically request early termination of the waiting period prescribed by the HSR Act and (ii) any other Governmental Authority, any other filings, reports, information and documentation required for the transactions contemplated hereby pursuant to any other antitrust law of any other jurisdiction. The parties shall furnish to each other’s counsel such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of any filing or submission that is necessary under the HSR Act and any antitrust law of any other jurisdiction. The requirements under this Section 3(d)(i) shall be satisfied with respect to any Exercise (without the need for further action by a party) upon the soonest to occur of: (a) the HSR Clearance Date has occurred (provided, however, that rights obtained by the Holder pursuant to the Warrant outside the United States shall become effective upon the HSR Clearance Date or, if any ex-U.S. governmental or regulatory approvals are required prior to such rights becoming effective, upon the later to occur of (1) the HSR Clearance Date and (2) the receipt of any such required approvals), or (b) determination by the parties that such filings are unnecessary (with respect to such Exercise, the “Exercise Effectiveness Date”). The determination of the soonest to occur of the foregoing shall be made without taking into account the need for ex-U.S. governmental or regulatory approvals required prior to such rights becoming effective and if, giving effect to the foregoing, subsection (a) is the soonest to occur, then the Exercise Effectiveness Date shall be the HSR Clearance Date.

               (ii) The parties shall use their reasonable best efforts to promptly obtain any clearance required under the HSR Act and any other antitrust law for the consummation of the Exercise and the transactions contemplated thereby and shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and other Governmental Authorities concerning such clearances and shall use reasonable best efforts to comply promptly with any such inquiry or request; provided, however, that (a) neither party shall be required to consent to the divestiture or other disposition of any of its or its affiliates’ assets or those of the other party, or to agree to any modification or amendment of this Warrant that, in the reasonable opinion of such party’s legal and/or financial counsel, would be adverse to such party, and (b) neither party shall have any obligation to contest, administratively or in court, any ruling, order or other action of any Governmental Authority or private party respecting the transactions contemplated by this Warrant or to comply with any other structure or conduct remedy or restriction or limit on operation; provided, further, however, that the parties shall both promptly respond to the DOJ or the FTC to a request for additional information as defined under the HSR Act.

               (iii) The parties commit to instruct their respective counsel to cooperate with each other and use reasonable best efforts to facilitate and expedite the identification and resolution of any such issues and, consequently, the expiration of the applicable HSR Act waiting period and the waiting periods under any other antitrust law of any other jurisdiction, or the obtaining of clearances thereunder (as the case may be), at the earliest practicable dates. Such efforts and cooperation include, but are not limited to, the parties’ respective counsel undertaking (i) to keep each other appropriately informed of communications from and to personnel of the reviewing antitrust authority, and (ii) to confer with each other regarding appropriate contacts with and response to personnel of said antitrust authority.

               (iv) Each Party shall be responsible for its own costs and expenses associated with any filing under the HSR Act or the Law of any other jurisdiction.

               (v) Certain Terms. As used in this Section 3(d), the below terms shall have the meanings so specified.

                    (1) “DOJ” shall mean the United States Department of Justice.

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                    (2) “FTC” shall mean the United States Federal Trade Commission, or any successor entity thereto.

                    (3) “Governmental Authority” shall mean any administrative agency, commission or other governmental authority, body or instrumentality, federal, state, local, domestic or foreign governmental or regulatory authority.

                    (4) “HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (15 U.S.C. Section 18(a)), and the rules and regulations promulgated thereunder.

                    (5) “HSR Clearance Date” shall mean the earlier of (i) the date on which the FTC shall notify the Company and the Holder of early termination of the applicable waiting period under the HSR Act or (ii) the day after the date on which the applicable waiting period under the HSR Act expires without any action by any government agency or challenged to the termination.

          (e) If within five (5) Trading Days after the later of the Exercise Effectiveness Date and payment of the Exercise Price of the shares thereby purchased, the Company shall fail to issue and deliver a certificate to the Holder (at an address in the United States specified by the Holder) and register such Warrant Shares on the Company’s share register, or instruct its transfer agent to register in book entry form the number of Warrant Shares to which the Holder is entitled or credit the Holder’s balance account with the Depository Trust Company for the number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise hereunder, and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Warrant Shares issuable upon such Exercise that the Holder anticipated receiving from the Company, then the Company shall, within five (5) Trading Days after the Holder’s request promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased over the product of (A) such number of shares of Common Stock, times (B) the closing sale price of the Common Stock on the Trading Day immediately preceding the last possible date which the Company could have issued such Warrant Shares to the Holder without violating this Section 3(e) .

     4. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the Exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such Exercise, the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the market price of one share of the Common Stock for the ten (10) Trading Days immediately prior to the Exercise Date of this Warrant.

     5. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names (provided the Holder has complied with the restrictions on transfer set forth herein) as may be directed by the Holder; provided , however , that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.

     6. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely Exercise of this Warrant, pursuant to the terms hereof.

     7. Transfer, Division and Combination.

          (a) Subject to compliance with any applicable securities laws and the conditions set forth in Sections 1 and 7(e) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to

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pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. A Warrant, if properly assigned, may be Exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.

          (b) This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 7(a) hereof, as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice.

          (c) The Company shall prepare, issue and deliver at its own expense (other than transfer taxes) the new Warrant or Warrants under this Section 7 .

          (d) The Company agrees to maintain, at its aforesaid office, books for the registration and the registration of transfer of the Warrants.

          (e) Prior to, and as a condition of, any transfer of this Warrant, the Holder or transferee of this Warrant, as the case may be must (i) execute and deliver to the Company an investment letter in form and substance reasonably acceptable to the Company and (ii) qualify as an “accredited investor” as defined in Rule 501(a) promulgated under the Securities Act.

     8. No Rights as Stockholder until Exercise. This Warrant does not entitle the Holder to any voting rights or other rights as a stockholder of the Company prior to the Exercise hereof. Upon the surrender of this Warrant and the payment of the aggregate Exercise Price, the Warrant Shares so purchased shall be and be deemed to be issued to such Holder as the record owner of such shares as of the close of business on the later of the date of such surrender or payment.

     9. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond or letter of credit), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.

     10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a legal holiday, then such action may be taken or such right may be Exercised on the next succeeding day not a Saturday, Sunday or legal holiday.

     11. Adjustments of Exercise Price and Number of Warrant Shares. The number and kind of securities purchasable upon the Exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the happening of any of the following. In case the Company shall (i) pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock to holders of its outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock, then the number of Warrant Shares purchasable upon Exercise of this Warrant immediately prior thereto shall be adjusted so that the Holder shall be entitled to receive the kind and number of Warrant Shares or other securities of the Company which it would have owned or have been entitled to receive had such Warrant been exercised in advance thereof. Upon each such adjustment of the kind and number of Warrant Shares or other securities of the Company which are purchasable hereunder, the Holder shall thereafter be entitled to purchase the number of Warrant Shares or other securities resulting from such adjustment at an Exercise Price per Warrant Share or other security obtained by multiplying the Exercise Price in effect immediately prior to

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such adjustment by the number of Warrant Shares purchasable pursuant hereto immediately prior to such adjustment and dividing by the number of Warrant Shares or other securities of the Company resulting from such adjustment. An adjustment made pursuant to this paragraph shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.

     12. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets. In case of (i) any capital reorganization or reclassification, (ii) any consolidation or merger to which the Company is a party other than a merger or consolidation in which the Company is the continuing corporation, (iii) any sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or (iv) any statutory exchange of securities with another corporation (including any exchange effected in connection with a merger of a third corporation into the Company) (each, a “Fundamental Transaction”), the Holder of this Warrant shall have the right thereafter to receive on the Exercise of this Warrant the kind and amount of securities, cash or other property which the Holder would have owned or have been entitled to receive immediately after such Fundamental Transaction had this Warrant been exercised immediately prior to the effective date of such Fundamental Transaction and in any such case, if necessary, appropriate adjustment shall be made in the application of the provisions set forth in Section 11 hereof with respect to the rights and interests thereafter of the Holder of this Warrant to the end that the provisions set forth in Section 11 hereof shall thereafter correspondingly be made applicable, as nearly as may reasonably be, in relation to any shares of stock or other securities or property thereafter deliverable on the Exercise of this Warrant. The above provisions of this Section 12 shall similarly apply to successive Fundamental Transactions. The Company shall require the issuer of any shares of stock or other securities or property thereafter deliverable on the Exercise of this Warrant to be responsible for all of the agreements and obligations of the Company hereunder. Notice of any such Fundamental Transaction and of said provisions so proposed to be made, shall be mailed to the Holder of this Warrant not less than thirty (30) days prior to such event. A sale of all or substantially all of the assets of the Company for a consideration consisting primarily of securities shall be deemed a consolidation or merger for the foregoing purposes. Notwithstanding the foregoing, following a Fundamental Transaction in which all or substantially all of the outstanding Common Stock of the Company is exchanged for, converted into, acquired for or constitutes the right to receive solely cash (a “Triggering Event”), at the written request of the Holder delivered before the twentieth (20 ^th ) day after such Triggering Event, the Company (or the successor entity) shall purchase this Warrant from the Holder by paying to the Holder, within five days after such request, cash in an amount equal to the Black-Scholes Value (as defined below) of the remaining unexercised portion of this Warrant. “Black-Scholes Value” means the value of the unexercised portion of this Warrant calculated using the Black-Scholes Option Pricing Model determined as of the day immediately following the public announcement of the applicable Triggering Event and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant as of the date of such request and (ii) an expected volatility equal to the one-hundred (100) day volatility obtained from the HVT function on Bloomberg.

     13. Notice of Adjustment. Whenever the number of Warrant Shares or number or kind of securities or other property purchasable upon the Exercise of this Warrant or the Exercise Price is adjusted, as herein provided, the Company shall give notice thereof to the Holder, which notice shall state the number of Warrant Shares (and other securities or property) purchasable upon the Exercise of this Warrant and the Exercise Price of such Warrant Shares (and other securities or property) after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made.

     14. Notice of Distribution. If the Board of Directors of the Company shall declare any dividend or other distribution with respect to its Common Stock other than a cash distribution out of earned surplus, the Company shall mail notice thereof to the Holder of this Warrant not less than twenty (20) days prior to the record date fixed for determining stockholders entitled to participate in such dividend or other distribution. Each such written notice shall be sufficiently given if addressed to the Holder at the last address of the Holder appearing on the books of the Company and delivered in accordance with Section 16(d) hereof.

     15. Registration Rights. The Common Stock issuable upon Exercise of this Warrant shall constitute Registrable Securities (as such term is defined in the Registration Rights Agreement). The original Holder of this Warrant, and any valid transferees thereof pursuant to the Registration Rights Agreement, shall be entitled to all of the benefits afforded to a holder of any Registrable Securities under the Registration Rights Agreement and such

6

holder, by its acceptance of this Warrant, agrees to be bound by and to comply with the terms and conditions of the Registration Rights Agreement applicable to the holder as a holder of Registrable Securities.

     16. Miscellaneous.

          (a) Jurisdiction. This Warrant shall constitute a contract under the laws of the State of Louisiana.

          (b) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the Exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal securities laws.

          (c) Nonwaiver. No course of dealing or any delay or failure to exercise any right hereunder on the part of the Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding all rights hereunder terminate on the Termination Date.

          (d) Notices. Any notice, request or other document required or permitted to be given or delivered under this Warrant will be in writing and will be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by confirmed facsimile, electronic or digital transmission method; the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and upon receipt, if sent by certified or registered mail, return receipt requested; provided, that upon any permitted assignment of this Warrant, the assignee shall promptly provide the Company with its contact information. In each case notice will be sent to: (i) if to the Company, addressed to: Akorn, Inc., 1925 West Field Court, Suite 300, Lake Forest, Illinois 60045, Attention: Jerry Ellis; or (ii) if to Holder, addressed to: John N. Kapoor Trust Dated September 20, 1989, c/o Dr. John N. Kapoor, 225 E. Deerpath Road, Suite 250,Lake Forest, Illinois 60045, Attention: Dr. John N. Kapoor.

          (e) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to Exercise this Warrant or purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.

          (f) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.

          (g) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the successors and permitted assigns of the Holder.

          (h) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.

          (i) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.

          (j) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.

**** [Signature Page Follows] ****

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     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized.

Dated: August 17, 2009

AKORN, INC.
By:
	Name:
	Title:

[Signature Page to Common Stock Purchase Warrant]

NOTICE OF EXERCISE

To: Akorn, Inc.

     1. The undersigned hereby elects to purchase                                          Warrant Shares of Akorn, Inc. pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price for such Warrant Shares in full, together with all applicable transfer taxes, if any. Payment shall take the form of lawful money of the United States.

     2. The undersigned hereby elects to exercise the attached Warrant into Warrant Shares of Akorn, Inc. through “cashless exercise” in the manner specified in the Warrant. This exercise is made with respect to                      of the Warrant Shares covered by the Warrant.

     3. Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is specified below:

The Warrant Shares shall be delivered to the following:

     4. Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.

[PURCHASER]
By:
	Name:
	Title:  Dated:

ASSIGNMENT FORM

(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to exercise the Warrant.)

     FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to                                                 

whose address is

.

Dated:                                         ,                     

Holder’s Signature:

Holder’s Address:

Signature Guaranteed:

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.

EX-10.5

Exhibit 10.5

EXECUTION COPY

REGISTRATION RIGHTS AGREEMENT

     THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of August 17, 2009, by and among AKORN, INC., a Louisiana corporation (the “Company”), THE JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989 (the “Kapoor Trust”) and EJ Funds LP, a Delaware limited partnership (“EJ Funds” and together with the Kapoor Trust and their respective Affiliates, the “Investors”). Capitalized terms that are used but not otherwise defined herein shall have the meanings ascribed to such terms in the Restated Credit Agreement (herein defined).

WITNESSETH:

     WHEREAS, on January 7, 2009, the Company, Akorn (New Jersey), Inc., an Illinois corporation (“Akorn NJ”), and General Electric Capital Corporation, a Delaware corporation (“GE Capital”), as agent and a lender, entered into a Credit Agreement (the “Credit Agreement”);

     WHEREAS, on March 31, 2009, GE Capital assigned the Credit Agreement to EJ Funds pursuant to an Assignment Agreement, and EJ Funds became the sole agent and lender under the Credit Agreement;

     WHEREAS, on April 13, 2009, the Company, Akorn NJ and EJ Funds entered into a Modification, Warrant and Investor Rights Agreement (the “Modification Agreement”) that, among other things, modified certain provisions of the Credit Agreement, reduced the aggregate revolving loan commitment from $25,000,000 to $5,650,000 and provided EJ Funds and its Affiliates with certain registration rights as set forth in the Modification Agreement;

     WHEREAS, concurrently with the execution of this Agreement, the Company, Akorn NJ and EJ Funds, as sole agent and lender under the Credit Agreement, as amended by the Modification Agreement, agreed to enter into an Amended and Restated Credit Agreement to, among other things, increase the aggregate revolving loan commitment from $5,650,000 to $10,000,000, eliminate the letter of credit subfacility and to temporarily suspend the financial covenants to the extent reflected (as may be amended, restated, modified or otherwise supplemented from time to time, the “Restated Credit Agreement”);

     WHEREAS, concurrently with the execution of this Agreement, the Kapoor Trust, as subordinated lender, permitted the Company to extend the maturity of the Company’s subordinated note for five years on substantially similar terms as in effect prior to the maturity of the original subordinated note, which indebtedness is evidenced by an Amended and Restated Subordinated Promissory Note of even date herewith (the “Restated Subordinated Note”); and

     WHEREAS, in order to induce EJ Funds to enter into the Restated Credit Agreement and to induce the Kapoor Trust to enter into the Restated Subordinated Note, the Company desires to (i) issue the First Warrant (defined herein) to EJ Funds, (ii) issue the Second Warrant (defined herein) to the Kapoor Trust and (iii) enter into this Agreement to provide to the Investors and their respective Affiliates certain registration rights on terms substantially similar to those previously granted under the Modification Agreement (which agreement shall cease to be in effect upon execution of the Restated Credit Agreement) and to clarify that such registration rights extend to the shares of Common Stock (defined herein) issuable upon exercise of the First Warrant and the Second Warrant.

     NOW, THEREFORE, in consideration of the foregoing premises and the agreements and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

     1. Warrants. In order to induce EJ Funds to enter into the Restated Credit Agreement, the Company hereby issues to EJ Funds a warrant for the purchase of up to One Million Six Hundred Fifty Thousand Eight Hundred Six (1,650,806) shares of common stock, no par value per share, of the Company (“Common Stock”), in the form attached hereto as Exhibit “A” (the “First Warrant”) and in order to induce the Kapoor Trust to enter into the Restated Subordinated Note, the Company hereby issues to the Kapoor Trust a warrant for the purchase of up to Two Million Ninety-Nine Thousand Nine Hundred Thirty-Five (2,099,935) shares of Common Stock in the form attached hereto as Exhibit “B” (the “Second Warrant”).

     2. Registration Rights. In order to induce EJ Funds to enter into the Restated Credit Agreement and to induce the Kapoor Trust to enter into the Subordinated Promissory Note, the Company hereby further agree as follows:

          (a) Resale Registration Statement. The Company shall (subject to Section 2(b)) use commercially reasonable efforts to:

               (i) cause to be filed with the U.S. Securities and Exchange Commission (the “SEC”) as soon as reasonably practicable, but in no event later than forty-five days (45) days after the date hereof (the “Resale Filing Deadline”), a registration statement pursuant to Rule 415 under the Securities Act (defined in Section 2(g)) (the “Resale Registration Statement”), which Resale Registration Statement shall provide for resales and Transfers (defined in Section 2(g)) of all Registrable Securities (defined in Section 2(g)) by the Holders (defined in Section 2(g)) as permitted by such Rule 415;

               (ii) cause the Resale Registration Statement to be declared effective by the SEC at the earliest practicable time, but in no event later than the earlier to occur of (i) if the SEC notifies the Company that it does not intend to review the Resale Registration Statement, ten (10) days after the Company receives such notice from the SEC; or (ii) if the SEC notifies the Company that it intends to review the Resale Registration Statement, one-hundred fifty (150) days after Resale Filing Deadline (or if such day is not a Business Day, the next succeeding Business Day, the “Resale Effective Deadline”);

               (iii) in connection with the foregoing, file all pre-effective amendments to the Resale Registration Statement as may be necessary in order to cause such Resale Registration Statement to become effective and, if applicable, a post-effective amendment to the Resale Registration Statement pursuant to Rule 430A under the Securities Act; and

               (iv) cause the Resale Registration Statement to remain Continuously Effective (defined in Section 2(g)), supplemented and amended as required by the provisions of Section 2(c) to the extent necessary to ensure that it is available for resales and Transfers of Registrable Securities by the Holders, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the SEC as announced from time to time, for a period beginning on the Resale Effective Deadline and continuing through the earliest to occur of (A) the date no shares of Common Stock qualify as Registrable Securities, (B) the date on which all of the Registrable Securities may be sold in a single transaction by the Holder to the public pursuant to Rule 144 or any similar rule promulgated by the SEC pursuant to the Securities Act permitting the resale of restricted securities without the necessity of a registration statement under the Securities Act or (C) the date upon which the Investors have Transferred all of the Registrable Securities.

          (b) Postponement of Registration Statement. The Company shall be entitled to (i) postpone the effectiveness of the Resale Registration Statement filed pursuant to this Agreement and (ii) suspend the use of any Prospectus (defined in Section 2(g) ) included in the Resale Registration Statement, in the event (a) of the issuance by the SEC of any stop order suspending the effectiveness of the Resale Registration Statement or the initiation of any proceedings for that purpose; (b) upon the occurrence of an event set forth in Section 2(c)(ii) or Sections 2(c)(v)(2)-(4); or (c) the Company’s chief executive officer delivers to the Holders an executed certificate stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders either for such Resale Registration Statement to become effective or for Transfers to be made thereunder (including, without limitation, due to the inadvisability of filing a required prospectus supplement or post-effective amendment), because such action would materially interfere with, or require premature disclosure of, any bona fide plan or proposal by the Company to engage in any material financing, acquisition, disposition, reorganization, merger or tender offer or other significant transaction. Notwithstanding anything to the contrary, the Company shall not exercise its rights under this Section 2(b) more than twice in any twelve (12) month period, nor for a period of more than sixty (60) days.

          (c) Registration Procedures. In connection with the Company’s obligations arising under this Agreement regarding the Resale Registration Statement (and any other Prospectus required by this Agreement to permit the resale and Transfer of Registrable Securities), the Company will (subject to Section 2(b) and, where

2

applicable, subject to the Resale Registration Statement having been declared effective) use commercially reasonable efforts to:

               (i) effect such registration to permit the sale of the Registrable Securities being sold in accordance with the intended method or methods of distribution selected by the Holders of the Registrable Securities and permitted by Rule 415, and keep the Resale Registration Statement Continuously Effective for all periods required by this Agreement;

               (ii) upon the occurrence of any event that would cause the Resale Registration Statement or any Prospectus filed in connection therewith (i) to contain a material misstatement or omission or (ii) not to be effective and usable for resale and Transfer of Registrable Securities during any period required by this Agreement, the Company shall file promptly an appropriate amendment to the Resale Registration Statement or a prospectus supplement, in the case of clause (i), correcting any such misstatement or omission, and, in the case of either clause (i) or (ii), if a post-effective amendment is utilized, cause such amendment to be declared effective and the Resale Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter;

               (iii) prepare and file with the SEC such amendments and post-effective amendments to the Resale Registration Statement as may be necessary to keep the Resale Registration Statement effective for the applicable period set forth in Section 2(a);

               (iv) cause the Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Resale Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in the Resale Registration Statement or supplement to the Prospectus;

               (v) advise the Holders promptly and, if requested by such Persons, to confirm such advice in writing, (1) when the Prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to the Resale Registration Statement or any post-effective amendment thereto, when the same has become effective; (2) of any request by the SEC for amendments to the Resale Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto; (3) of the issuance by the SEC of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; (4) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the SEC shall issue any stop order suspending the effectiveness of the Resale Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or blue sky laws, the Company shall obtain the withdrawal or lifting of such order as soon as practicable. The Investors acknowledges that trading the Company’s securities while in possession of material non-public information is not permitted under federal and state securities laws;

               (vi) furnish without charge to each of the Holders, and each of the underwriter(s) if any, before filing with the SEC, copies of the Resale Registration Statement or any Prospectus included therein or any amendments or supplements to the Resale Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of the Resale Registration Statement but excluding documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and any exhibits to such filings), which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least three (3) Business Days, and the Company will not file the Resale Registration Statement or Prospectus or any amendment or supplement to the Resale Registration Statement or Prospectus (including all such documents incorporated by reference but excluding documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and any exhibits to such filings) to which a Holder covered by such

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registration statement or the underwriter(s), if any, shall reasonably object in writing within three (3) Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy or e-mail transmission within such period), unless the Company receives advice from legal counsel that the delay required by such review period would be detrimental to the Company. For purposes of this Section 2(c)(vi), the objection of a Holder or underwriter, if any, shall be deemed to be reasonable if the Resale Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission;

               (vii) make available any document that is incorporated by reference into the Resale Registration Statement or Prospectus, provide copies of such document to the Holders, and to the underwriter(s), if any, and make the Company’s representatives available for discussion of such document and other customary due diligence matters;

               (viii) make available at reasonable times for inspection by the Holders or underwriter(s), if any, participating in any disposition pursuant to the Resale Registration Statement and any attorney or accountant retained by the Holders or underwriter(s), if any, all financial and other records, pertinent corporate documents and properties of the Company and cause the Company’s officers, directors and employees to supply all information reasonably requested by the Holders, underwriter(s), if any, or their attorneys or accountants in connection with the Resale Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by the underwriter(s), if any, and make members of the Company’s senior management available at reasonable times and places to participate in “road-shows” and investor calls as the underwriter(s), if any, may request;

               (ix) if requested by a Holder or the underwriter(s), if any, to promptly incorporate in the Resale Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as the Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities, information with respect to the Registrable Securities being sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;

               (x) furnish to each Holder and each of the underwriter(s), if any, upon request, without charge, at least one copy of the Resale Registration Statement, as first filed with the SEC, and of each amendment thereto, including financial statements and schedules, all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference);

               (xi) deliver to each Holder and each of the underwriter(s), if any, upon request, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Holder reasonably may request;

               (xii) enter into such customary agreements (including a customary underwriting agreement), and make such customary representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities pursuant to the Resale Registration Statement contemplated by this Agreement, all to such extent as may be reasonably requested by any Holder or underwriter(s), if any, in connection with any resale or Transfer pursuant to the Resale Registration Statement; and if and only if the registration is an Underwritten Registration (defined in Section 2(g)), the Company shall:

                    (1) furnish to each Holder, and each underwriter, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the initial effective date of the Resale Registration Statement:

                         (A) a certificate, dated the date of the date of effectiveness of the Resale Registration Statement signed by (i) the Chief Executive Officer or President and (ii) the principal financial or accounting officer of the Company confirming, as of the date thereof, such matters (including, without limitation representations and warranties) as the Holders and underwriters may reasonably request;

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                         (B) an opinion, dated the date of effectiveness of the Resale Registration Statement, of outside counsel for the Company, covering such matters as the Holders and the underwriter(s) may reasonably request, and in any event including a statement to the effect that such counsel have participated in conferences with officers and other representatives of the Company, representatives of the independent public or certified public accountants for the Company and with representatives of the underwriter(s), and counsel to the underwriter(s) at which the contents of the Resale Registration Statement and the related Prospectus and related matters were discussed and, on the basis of the foregoing, no facts have come to such counsel’s attention that would lead such counsel to believe that (i) the Resale Registration Statement, at the time of the Resale Registration Statement or any post effective amendment thereto became effective, or (ii) that the Prospectus contained in the Resale Registration Statement as of its date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and

                         (C) a customary comfort letter, dated the date of effectiveness of the Resale Registration Statement, from the Company’s independent accountants, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings, and covering or affirming the matters set forth in any comfort letters delivered pursuant to the Resale Registration Statement;

                    (2) set forth in full the indemnification provisions and procedures of Section 2(f) with respect to all parties to be indemnified pursuant to said Section; and

                    (3) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with Section 2(c)(xii)(1)(A) and with any customary conditions contained in the underwriting agreement entered into by the Company pursuant to this Section 2(c)(xii) .

If at any time the representations and warranties of the Company contemplated in Section 2(c)(xii)(1)(A) cease to be true and correct, the Company shall so advise the Holders and the underwriter(s), promptly and, if requested by such Persons, shall confirm such advice in writing;

               (xiii) prior to any public offering of Registrable Securities, cooperate with the Holders, the underwriter(s), if any, and their respective counsel in connection with the registration and qualification of the Registrable Securities under the state securities or blue sky laws of such jurisdictions as the Holders or underwriter(s), if any, may reasonably request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Resale Registration Statement; provided, however, that the Company shall not be required to register or qualify as a foreign corporation where it is not then so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Resale Registration Statement, in any jurisdiction where it is not then so subject and provided, further, that if the Common Stock is not then a “covered security” as defined in Section 18 of the Securities Act, then the Company shall not be required to register and qualify the Registrable Securities under the state securities or blue sky laws in more than ten (10) states;

               (xiv) cooperate with the Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold and not bearing any restrictive legends (subject to the limitations set forth in Section 2(d)); and enable such Registrable Securities to be in such denominations and registered in such names as the Holders or the underwriter(s), if any, may request at least three (3) Business Days prior to any sale of Registrable Securities made by such Holders or underwriter(s), if any; provided, the Holders provide the Company with the necessary information to prepare such certificates at least four (4) Business Days prior to the applicable sale of Registrable Securities;

               (xv) if any fact or event contemplated by Section 2(c)(v)(4) shall exist or have occurred, prepare a supplement or post-effective amendment to the Resale Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading;

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               (xvi) cooperate and assist in any filings required to be made with FINRA (defined in Section 2(g)) and in the performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of FINRA;

               (xvii) otherwise comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) for the twelve-month period (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering or (ii) if not sold to underwriters in such an offering, beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Resale Registration Statement;

               (xviii) cause all securities covered by the Resale Registration Statement to be listed on each securities exchange or automated quotation system on which the Common Stock issued by the Company is then listed if requested by any Holder or the underwriter(s), if any; and

               (xix) provide promptly to each Holder upon request each document filed with the SEC pursuant to the requirements of Section 13 and Section 15 of the Exchange Act.

          (d) Holder Obligations. Each Holder agrees to, and in addition it shall be a condition precedent to the obligation of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of the Holders, that each Holder shall:

               (i) Promptly furnish to the Company such information regarding the Holder, the number of the Registrable Securities owned by it, the number of Registrable Securities to be registered and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Securities of the Holders, and cooperate fully with the Company in preparing the Resale Registration Statement and any related Prospectus;

               (ii) If the Company has delivered a Prospectus to the Holder and after having done so the Prospectus is amended or supplemented to comply with the requirements of the Securities Act, at the written request of the Company, the Holder shall immediately cease making offers or Registrable Securities and, upon receipt of the amended or supplemented Prospectus from the Company, the Holder shall use only such amended or supplemented Prospectus in making offers of the Registrable Securities;

               (iii) During such time as the Holder may be engaged in a distribution of Registrable Securities, the Holder shall comply with Regulation M promulgated under the Exchange Act and pursuant thereto it shall, among other things, (i) not engage in any stabilization activity in connection with the securities of the Company in contravention of such regulation or (ii) distribute Registrable Securities under the Resale Registration Statement other than in the manner described in the Resale Registration Statement;

               (iv) If the Company has delivered to the Holder written notice in accordance with Section 2(b), then the Holder shall immediately cease making offers or Transfers of Registrable Securities until the Company shall have given the Holder written notice that the Holder may once again commence making offers or Transfers of Registrable Securities under the current (or amended or supplemented) Prospectus; and

               (v) Dispose of the Registrable Securities only (a) pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act or (b) pursuant to an available exemption from the registration requirements of the Securities Act, and in compliance with any applicable state securities laws, including providing the Company an opinion of counsel selected by the Holder, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration under the Securities Act.

          (e) Registration Expenses:

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               (i) Company Expenses. Subject to Section 2(e)(ii), all expenses incident to the Company’s performance of or compliance with this Section 2, including all registration and filing fees, fees of any transfer agent and registrar, fees and expenses of compliance with securities or blue sky laws, printing expenses, fees and disbursements of counsel for the Company and its independent certified public accountants, the Company’s internal expenses and the expenses and fees for listing the securities to be registered on each securities exchange or quotation system on which similar securities issued by the Company are then listed or quoted (all such expenses being herein called “Registration Expenses”) shall be borne by the Company.

               (ii) Holder Expenses. In connection with the registration contemplated hereunder, the Company shall reimburse the Holders included in a registration for the reasonable fees and disbursements of one counsel. The Holders, and not the Company, shall be responsible for all fees and expenses of underwriters (including discounts and commissions attributable to the Registrable Securities included in such registration).

          (f) Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:

               (i) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Holder, and the partners, members, officers, directors, employees, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorney’s fees and disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any of the following statements or omissions (collectively, a “Violation”):

                    (1) any untrue statement or alleged untrue statement of a material fact contained in the registration statement, including any preliminary Prospectus or final Prospectus contained therein, or any amendments or supplements thereto; or

                    (2) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the indemnification required by this Section 2(f)(i) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such Loss to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of a Holder or any underwriter expressly for use in connection with such registration; and provided, further, that any indemnification required by this Section 2(f)(i) shall not apply to the extent that any such Loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, included in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given by the Holder or any underwriter to the Person alleging damage at or prior to the confirmation of sale to such Person; and provided, further, that this indemnity shall not apply to the extent that any such Loss is based on an offer or Transfer of Registrable Securities during any period which the Company has notified the Holder that such offers and Transfers must cease under the Agreement, including under Section 2(b), Section 2(c)(ii) or Section 2(c)(v) .

               (ii) To the extent permitted by applicable law, the Holders (severally and not jointly) shall indemnify and hold harmless the Company, each of the directors of the Company, each of the officers of the Company who shall have signed the Resale Registration Statement, each Person, if any, who controls the Company within the meaning of the Securities Act, and each officer, director, partner, and employee of such controlling Person, against any and all Losses incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any Violation, in each case to the extent that such Violation arises out of or is based upon information

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furnished in writing by or on behalf of a Holder expressly for use in connection with such registration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that any indemnification required by this Section 2(f)(ii) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the Holders (which consent shall not be unreasonably withheld) and in no event shall the amount of any indemnity obligation under this Section 2(f)(ii) exceed the gross proceeds from the applicable offering received by the Holders.

               (iii) Promptly after receipt by an indemnified party under this Section 2(f) of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 2(f), such indemnified party shall deliver to the indemnifying party a written notice thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 2(f) to the extent, but only to the extent, of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 2(f). Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels).

               (iv) If the indemnification required by this Section 2(f) from the indemnifying party is unavailable to an indemnified party hereunder in respect of any Losses referred to in this Section 2(f) :

                    (1) the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 2(f)(i), 2(f)(ii) and 2(f)(iii), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding;

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                    (2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2(f)(iv) were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 2(f)(iv)(1). No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

               (v) The obligations of the Company and the Holders under this Section 2(f) shall survive the completion of any offering of Registrable Securities pursuant to the registration statement under this Agreement, and otherwise.

          (g) Definitions. The following terms used in this Section 2 shall have the following meanings:

     “Continuously Effective” with respect to the Resale Registration Statement means that such registration statement shall not cease to be effective and available for Transfers of Registrable Securities.

     “FINRA” means the Financial Industry Regulatory Authority (f/k/a the National Association of Securities Dealers) and any successor entity.

     “Holder” means with respect to any Registrable Securities, EJ Funds or the Kapoor Trust, as applicable, unless and until EJ Funds or the Kapoor Trust, as applicable, Transfers such Registrable Securities to new Holders in accordance with Section 3(e).

     “Prospectus” means any prospectus included in the Resale Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus.

     “Registrable Securities” means (a) any Common Stock now held by any Investor or any of their respective affiliates or issuable or issued upon any conversion or exercise of any other securities (including the First Warrant, the Second Warrant and any other warrants) held by any Investors or its affiliates and (b) any Common Stock issued or issuable with respect to any of the securities referred to in clause (a) by way of an event triggering any adjustment in the number of shares of Common Stock into which such securities convert or are exercisable. Except for purposes of Section 2(a)(iv)(C), Registrable Securities shall be deemed to be outstanding and in existence, whenever such Person has the right to acquire such Registrable Securities upon exercise or conversion of such securities, whether or not such exercise or conversion has actually been effected, and such Person shall be entitled to exercise the rights of a Holder of such Registrable Securities hereunder. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when they (x) have been registered and Transferred pursuant to the Securities Act or (y) have been Transferred pursuant to Rule 144 or any similar rule promulgated by the SEC pursuant to the Securities Act permitting the resale of restricted securities without the necessity of a registration statement under the Securities Act.

     Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at that time.

     “Transfer” means and includes the act of selling, giving, transferring, creating a trust (voting or otherwise), assigning or otherwise disposing of (other than pledging, hypothecating or otherwise transferring as security) (and correlative words shall have correlative meanings); provided, however, that any transfer or other disposition upon foreclosure or other exercise of remedies of a secured creditor after an event of default under or with respect to a pledge, hypothecation or other transfer as security shall constitute a “Transfer”; provided, further, however, no “Transfer” shall be deemed to have occurred if EJ Funds or the Kapoor Trust, as the case may be, continues to be an affiliate of the Holder of the Registrable Securities after giving effect to such transfer or other distribution.

     “Underwritten Registration” means a registration in which securities of the Company are sold to an underwriter for reoffering to the public.

     3. Miscellaneous.

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          (a) Entire Agreement. This Agreement reflects the entire understanding of the parties with respect to the subject matter of registration rights herein contained and supersedes any prior agreements, whether written or oral, in regard thereto.

          (b) Governing Law. This Agreement shall be governed by, and shall be construed in accordance with, the laws of the State of New York and all applicable laws of the United States of America.

          (c) WAIVER OF RIGHT TO JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES TRIAL BY JURY AND CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE A JUDGE OF A COURT OF COMPETENT JURISDICTION.

          (d) Counterparts; Facsimile. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which, taken together, shall constitute but one and the same agreement among the parties. This Agreement may be executed and transmitted by facsimile and with confirmation of transmission shall have the same binding effect as though such executed Agreement was delivered as an original.

          (e) Assignment; Binding Nature. The Investors may assign their rights under this Agreement, including, without limitation, the rights of any Holder to cause the Company to register Registrable Securities pursuant to this Agreement, without the Company’ consent. The Company may not assign its rights under this Agreement without the prior written consent of the Investors, which shall not be unreasonably withheld, conditioned or delayed. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

          (f) Captions. The captions to the Sections and paragraphs of the Agreement are for the convenience of the parties only, and are not a part of this Agreement.

          (g) Time of the Essence. Time is of the essence under this Agreement.

          (h) Remedies. Any party having rights under any provision of this Agreement shall be entitled to enforce such rights specifically, to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages are not an adequate remedy for any breach of the provisions of this Agreement and that any party may apply for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.

[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]

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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals effective as of the date first above written.

AKORN, INC, a Louisiana corporation
By:
	Name:
	Title:
THE JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989
By:
	Name:	John N. Kapoor
	Title:	Trustee
EJ FUNDS LP
By:	EJ Financial Enterprises, Inc.
Its:	General Partner
By:
	John N. Kapoor
	President

[Signature Page to Registration Rights Agreement]

EXHIBIT A

FORM OF FIRST WARRANT

See Attached.

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EXHIBIT A

FORM OF SECOND WARRANT

See Attached.

13

EX-10.6

Exhibit 10.6

Execution Copy

AMENDED AND RESTATED

SUBORDINATION AGREEMENT

     This AMENDED AND RESTATED SUBORDINATION AGREEMENT dated as of August 17, 2009 (this “Agreement”) is by and among THE JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989 (“Subordinated Creditor”), AKORN, INC., a Louisiana corporation (“Akorn”), AKORN (NEW JERSEY), INC., an Illinois corporation (“Akorn New Jersey” and together with Akorn, the “Companies” and each a “Company”), and EJ FUNDS, LP (“EJ Funds”), a Delaware limited partnership (and assignee of General Electric Capital Corporation, a Delaware corporation (“GE Capital”) (“Agent”) for all Senior Lenders party to the Restated Credit Agreement described below) and amends and restates that certain Subordination Agreement entered into as of January 7, 2009, by and among the same parties.

RECITALS

     A. The Companies, Agent and Senior Lenders (as hereinafter defined) have entered into a Credit Agreement dated as of January 7, 2009, as amended by a Modification Warrant and Investor Rights Agreement dated as of April 13, 2009 and as further amended and restated by the Amended and Restated Credit Agreement dated as of the date hereof (as the foregoing may be further amended, restated, supplemented or otherwise modified from time to time, the “Restated Credit Agreement”) pursuant to which, among other things, the Senior Lenders have agreed, subject to the terms and conditions set forth in the Restated Credit Agreement, to make certain loans and financial accommodations to the Companies. All of the Companies’ obligations to Agent and Senior Lenders under the Restated Credit Agreement and the other Senior Debt Documents (as hereinafter defined) are secured by liens on and security interests in substantially all of the now existing and hereafter acquired real and personal property of the Companies (the “Collateral”).

     B. Subordinated Creditor has extended credit to the Company as evidenced by a Subordinated Promissory Note dated as of July 28, 2008 in the principal amount of $5,000,000.00 and with accrued but unpaid interest of $[•] and Subordinated Creditor is amending, restating, renewing and replacing that note as of even date herewith (as the same has been and may be further amended, restated, supplemented or otherwise modified from time to time, the “Subordinated Note”).

     C. As one of the conditions precedent to the agreement of Agent and Senior Lenders to enter into the Restated Credit Agreement, Agent and Senior Lenders have required the execution and delivery of this Agreement by Subordinated Creditor and the Companies in order to set forth the relative rights and priorities of Agent, Senior Lenders and Subordinated Creditor under the Senior Debt Documents and the Subordinated Debt Documents (as hereinafter defined).

     NOW, THEREFORE, in order to induce Agent and Senior Lenders to enter into the Restated Credit Agreement, and for other good and valuable consideration, the receipt, and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:

1. Definitions. The following terms shall have the following meanings in this Agreement:

     “Agent” shall mean EJ Funds, LP (as the assignee of GE Capital), as Agent for the Senior Lenders, or any other Person appointed by the holders of the Senior Debt as agent for purposes of the Senior Debt Documents and this Agreement.

     “Bankruptcy Code” shall mean Chapter 11 of Title 11 of the United States Code, as amended from time to time and any successor statute and all rules and regulations promulgated thereunder.

     “Distribution” means, with respect to any indebtedness, obligation or security, (a) any payment or distribution by any Person of cash, securities, or other property (other than payments in kind (but not in cash) of

interest on the Subordinated Debt in accordance with the terms of the Subordinated Debt Documents and the issuance of the warrants or common stock of Akorn), by set-off or otherwise, on account of such indebtedness, obligation or security, (b) any redemption, purchase or other acquisition of such indebtedness, obligation or security by any Person or (c) the granting of any lien or security interest to or for the benefit of the holders of such indebtedness, obligation or security in or upon any property of any Person.

     “EJ Funds Loan Documents” shall mean the Restated Credit Agreement and all other agreements, documents and instruments executed from time to time in connection therewith, including without limitation any agreements, documents and instruments evidencing “Obligations” as such term is defined in the Restated Credit Agreement, in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.

     “Enforcement Action” shall mean (a) to take from or for the account of either Company or any guarantor of the Subordinated Debt, by setoff or in any other manner, the whole or any part of any moneys which may now or hereafter be owing by the Company or any such guarantor with respect to the Subordinated Debt, (b) to sue for payment of, or to initiate or participate with others in any suit, action or proceeding against either Company or any such guarantor to (i) enforce payment of or to collect the whole or any part of the Subordinated Debt or (ii) commence judicial enforcement of any of the rights and remedies under the Subordinated Debt Documents or applicable law with respect to the Subordinated Debt, (c) to accelerate the Subordinated Debt (but excluding any acceleration occurring by operation of law in connection with bankruptcy proceedings), (d) to exercise any put option or to cause either Company or any such guarantor to honor any redemption or mandatory prepayment obligation under any Subordinated Debt Document or (e) to take any action under the provisions of any state or federal law, including, without limitation, the Uniform Commercial Code, or under any contract or agreement, to enforce, foreclose upon, take possession of or sell any property or assets of the Company or any such guarantor.

     “Person” means any natural person, corporation, general or limited partnership, limited liability company, firm, trust, association, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.

     “Proceeding” shall mean any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of a Person.

     “Refinancing Senior Debt Documents” shall mean any financing documentation which replaces the EJ Funds Loan Documents and pursuant to which the Senior Debt under the EJ Funds Loan Documents are refinanced, as such financing documentation may be amended, restated, supplemented or otherwise modified from time to time in compliance with this Agreement.

     “Senior Debt” shall mean all obligations, liabilities and indebtedness of every nature of the Company from time to time owed to Agent or any Senior Lender under the Senior Debt Documents, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest, all “Obligations” as such term is defined in the Restated Credit Agreement and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and from time to time hereafter owing, due or payable, whether before or after the filing of a Proceeding under the Bankruptcy Code together with (a) any amendments, restatements, modifications, renewals or extensions thereof to the extent not prohibited by the terms of this Agreement and (b) any interest accruing thereon after the commencement of a Proceeding, without regard to whether or not such interest is an allowed claim. Senior Debt shall be considered to be outstanding whenever any loan commitment under the Senior Debt Documents is outstanding.

     “Senior Debt Documents” shall mean the EJ Funds Loan Documents and, after any refinancing of the Senior Debt under the EJ Funds Loan Documents, the Refinancing Senior Debt Documents.

     “Senior Default” shall mean any “Event of Default” under the Senior Debt Documents, or any condition or event that, after notice or lapse of time or both, would constitute such an Event of Default if that condition or event were not cured or removed within any applicable grace or cure period set forth therein.

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     “Senior Lenders” shall mean the holders of the Senior Debt.

     “Subordinated Debt” shall mean all of the obligations of the Companies to Subordinated Creditor evidenced by or incurred pursuant to the Subordinated Debt Documents.

     “Subordinated Debt Documents” shall mean the Subordinated Note, the Subordinated Guaranty and Security Agreement, the Subordinated Patent Security Agreement, the Subordinated Trademark Security Agreement and all other documents, agreements and instruments now existing or hereinafter entered into evidencing or pertaining to all or any portion of the Subordinated Debt.

     “Subordinated Debt Default” shall mean a default in the payment of the Subordinated Debt or in the performance of any term, covenant or condition contained in the Subordinated Debt Documents or any other occurrence permitting Subordinated Creditor to accelerate the payment of all or any portion of the Subordinated Debt.

     “Subordinated Debt Default Notice” shall mean a written notice from Subordinated Creditor or either Company to Agent pursuant to which Agent is notified of the occurrence of a Subordinated Debt Default, which notice incorporates a reasonably detailed description of such Subordinated Debt Default and which notice expressly states that it is a “Subordinated Debt Default Notice” hereunder.

     “Subordinated Guaranty and Security Agreement” shall mean the Guaranty and Security Agreement dated as of May 27, 2009 among the Companies, each other grantor from time to time party thereto and the Subordinated Creditor.

     “Subordinated Patent Security Agreement” shall mean the Patent Security Agreement dated as of May 12, 2009 by each of the Companies in favor of the Senior Creditor.

     “Subordinated Security Interests” shall mean the security interest in and lien upon all of the Collateral (as defined in the Subordinated Guaranty and Security Agreement) pursuant to the terms of the Subordinated Guaranty and Security Agreement. The Subordinated Security Interests are and shall at all times hereafter remain subordinated solely to the security interests of the Senior Lenders pursuant to the Senior Loan Documents.

     “Subordinated Trademark Security Agreement” shall mean the Patent Security Agreement dated as of May 12, 2009 by the Companies in favor of the Senior Creditor.

2. Subordination.

     2.1 Subordination of Subordinated Debt to Senior Debt. Each Company covenants and agrees, and Subordinated Creditor by its acceptance of the Subordinated Debt Documents (whether upon original issue or upon transfer or assignment) likewise covenants and agrees, notwithstanding anything to the contrary contained in any of the Subordinated Debt Documents, that the payment of any and all of the Subordinated Debt shall be subordinate and subject in right and time of payment, to the extent and in the manner hereinafter set forth, to the prior indefeasible payment in full in cash of all Senior Debt. Each holder of Senior Debt, whether such Senior Debt is now outstanding or hereafter created, incurred, assumed or guaranteed, shall be deemed to have acquired Senior Debt in reliance upon the provisions contained in this Agreement.

     2.2 Liquidation, Dissolution, Bankruptcy. In the event of any Proceeding involving the Company:

          (a) All Senior Debt shall first be indefeasibly paid in full in cash and all commitments to lend under the Senior Debt Documents shall be terminated before any Distribution, whether in cash, securities or other property, shall be made to Subordinated Creditor on account of any Subordinated Debt.

          (b) Any Distribution, whether in cash, securities or other property which would otherwise, but for the terms hereof, be payable or deliverable in respect of the Subordinated Debt shall be paid or delivered directly to Agent (to be held and/or applied by Agent in accordance with the terms of the Senior Debt Documents) until all Senior Debt is indefeasibly paid in full in cash and all commitments to lend under the Senior Debt Documents shall have been terminated. Subordinated Creditor irrevocably authorizes, empowers and directs any

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debtor, debtor in possession, receiver, trustee, liquidator, custodian, conservator or other Person having authority, to pay or otherwise deliver all such Distributions to Agent. Subordinated Creditor also irrevocably authorizes and empowers Agent, in the name of Subordinated Creditor, to demand, sue for, collect and receive any and all such Distributions.

          (c) Subordinated Creditor agrees not to initiate, prosecute, or participate in any claim, action, or other proceeding challenging the enforceability, validity, perfection, or priority of the Senior Debt or any liens and security interests securing the Senior Debt.

          (d) Subordinated Creditor agrees to execute, verify, deliver and file any proofs of claim in respect of the Subordinated Debt requested by Agent in connection with any such Proceeding and hereby irrevocably authorizes, empowers and appoints Agent its Agent and attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the failure of Subordinated Creditor promptly to do so prior to 30 days before the expiration of the time to file any such proof of claim and (ii) vote such claim in any such Proceeding upon the failure of Subordinated Creditor to do so prior to 15 days before the expiration of the time to vote any such claim; provided Agent shall have no obligation to execute, verify, deliver, file and/or vote any such proof of claim. In the event that Agent votes any claim in accordance with the authority granted hereby, Subordinated Creditor shall not be entitled to change or withdraw such vote.

          (e) The Senior Debt shall continue to be treated as Senior Debt and the provisions of this Agreement shall continue to govern the relative rights and priorities of Senior Lenders and Subordinated Creditor even if all or part of the Senior Debt or the security interests securing the Senior Debt are subordinated, set aside, avoided, invalidated or disallowed in connection with any such Proceeding, and this Agreement shall be reinstated if at any time any payment of any of the Senior Debt is rescinded or must otherwise be returned by any holder of Senior Debt or any representative of such holder.

     2.3 Subordinated Debt Payment Restrictions. Notwithstanding the terms of the Subordinated Debt Documents, each Company hereby agrees that it may not make, and Subordinated Creditor hereby agrees that it will not accept, any Distribution with respect to the Subordinated Debt until the Senior Debt is indefeasibly paid in full in cash and all commitments to lend under the Senior Debt Documents have terminated, other than reimbursement of all costs and expenses incurred by the Subordinated Creditor in connection with the negotiation, execution and delivery of the Subordinated Debt Documents and the consummation of the transactions contemplated thereby in an aggregate amount not to exceed $2,500 and (ii) the existence and continuation of the Subordinated Security Interests.

     2.4 Subordinated Debt Standstill Provisions. Until the Senior Debt is indefeasibly paid in full in cash and all commitments to lend under the Senior Debt Documents shall be terminated, Subordinated Creditor shall not, without the prior written consent of Agent, take any Enforcement Action with respect to the Subordinated Debt. Notwithstanding the foregoing, Subordinated Creditor may file proofs of claim against either Company in any Proceeding involving such Company. Any Distributions or other proceeds of any Enforcement Action obtained by Subordinated Creditor in violation of the foregoing prohibition shall in any event be held in trust by it for the benefit of Agent and Senior Lenders and promptly paid or delivered to Agent for the benefit of Senior Lenders in the form received until all Senior Debt is indefeasibly paid in full in cash and all commitments to lend under the Senior Debt Documents shall have been terminated.

     2.5 Incorrect Payments. If any Distribution on account of the Subordinated Debt not permitted to be made by either Company or accepted by Subordinated Creditor under this Agreement is made and received by Subordinated Creditor, such Distribution shall not be commingled with any of the assets of Subordinated Creditor, shall be held in trust by Subordinated Creditor for the benefit of Agent and Senior Lenders and shall be promptly paid over to Agent for application (in accordance with the Senior Debt Documents ) to the payment of the Senior Debt then remaining unpaid, until all of the Senior Debt is paid in full.

     2.6 Sale, Transfer or other Disposition of Subordinated Debt.

          (a) Subordinated Creditor shall not sell, assign, pledge, dispose of or otherwise transfer all or any portion of the Subordinated Debt or any Subordinated Debt Document unless (i) the transferee or pledgee

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thereof signs a subordination agreement on the same terms hereof or other acknowledgement of the terms of this Agreement, in each case in form and substance satisfactory to the Agent and (ii) such transferee or pledgee is acceptable to the Agent.

          (b) Notwithstanding the foregoing, the subordination effected hereby shall survive any sale, assignment, pledge, disposition or other transfer of all or any portion of the Subordinated Debt in violation of the foregoing prohibition, and the terms of this Agreement shall be binding upon the successors and assigns of Subordinated Creditor, as provided in Section 9 hereof.

     2.7 Legends. Until the termination of this Agreement in accordance with Section 15 hereof, Subordinated Creditor will cause to be clearly, conspicuously and prominently inserted on the face of the Subordinated Note and any other Subordinated Debt 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 Amended and Restated Subordination Agreement (as amended, restated, modified or replaced from time to time, the “Subordination Agreement”) dated as of August 17, 2009, among the John N. Kapoor Trust dated September 20, 1989, Akorn, Inc. (“Akorn”), Akorn (New Jersey), Inc. (“Akorn New Jersey” and together with Akorn, the “Companies”, and each a “Company”), and EJ Funds, LP (“Agent”), to the indebtedness (including interest) owed by the Companies pursuant to that certain Credit Agreement dated as of January 9, 2009 among the Companies, General Electric Capital Corporation, as a lender and as Agent for the lenders (“GE Capital”) and the lenders from time to time party thereto, as such Credit Agreement has been (i) assigned by GE Capital and the other lenders a party thereto to EJ Funds LP, as Agent and lender pursuant to an Assignment Agreement dated as of March 31, 2009, (ii) amended pursuant to a Modification Warrant and Investor Rights Agreement dated as of the April 13, 2009 among the Companies and EJ Funds LP, as Agent and lender, as further amended and restated by the (iii) Amended and Restated Credit Agreement dated as of August [•], 2009 among the Companies and EJ Funds LP, as Agent and lender, and (iv) hereafter may be amended, restated, supplemented or otherwise modified from time to time and to indebtedness refinancing the indebtedness under that agreement 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.”

3. Modifications.

     3.1 Modifications to Senior Debt Documents. Senior Lenders may at any time and from time to time without the consent of or notice to Subordinated Creditor, without incurring liability to Subordinated Creditor and without impairing or releasing the obligations of Subordinated Creditor under this Agreement, change the amount of principal, interest, fees or any other amounts payable relating to the Senior Debt, change the manner or place of payment or extend the time of payment and/or loan commitments thereunder of or renew or alter any of the terms of the Senior Debt, or otherwise amend or restate in any manner any agreement, note, guaranty or other instrument evidencing or securing or otherwise relating to the Senior Debt.

     3.2 Modifications to Subordinated Debt Documents. Until the Senior Debt has been indefeasibly paid in full in cash and all lending commitments under the Senior Debt Documents have terminated, and notwithstanding anything to the contrary contained in the Subordinated Debt Documents, Subordinated Creditor shall not, without the prior written consent of Agent, agree to any amendment, restatement, modification or supplement to the Subordinated Debt Documents.

4. Representations and Warranties. Subordinated Creditor hereby represents and warrants to Agent and Senior Lenders that as of the date hereof: (a) true and accurate copies of the relevant portions of Subordinated Creditor’s trust documents have been provided to Agent; (b) Subordinated Creditor has the power and authority to enter into, execute, deliver and carry out the terms of this Agreement, all of which have been duly authorized by all proper and necessary action; (c) the execution of this Agreement by Subordinated Creditor will not violate or conflict with any agreement binding upon Subordinated Creditor or any law, regulation or order or require any consent or approval which has not been obtained; (d) this Agreement is the legal, valid and binding obligation of Subordinated Creditor, enforceable against Subordinated Creditor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws

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affecting the enforcement of creditors’ rights generally and by equitable principles; (e) Subordinated Creditor is the sole owner, beneficially and of record, of the Subordinated Debt Documents and the Subordinated Debt; and (f) other than the Subordinated Security Interests, the Subordinated Debt is, and at all times prior to the termination of this Agreement shall remain, an unsecured obligation of the Companies.

5. Subrogation. Subject to the indefeasible payment in full in cash of all Senior Debt and the termination of all lending commitments under the Senior Debt Documents, Subordinated Creditor shall be subrogated to the rights of Agent and Senior Lenders to receive Distributions with respect to the Senior Debt until the Subordinated Debt is paid in full. Subordinated Creditor agrees that in the event that all or any part of a payment made with respect to the Senior Debt is recovered from the holders of the Senior Debt in a Proceeding or otherwise, any Distribution received by Subordinated Creditor with respect to the Subordinated Debt at any time after the date of the payment that is so recovered, whether pursuant to the right of subrogation provided for in this Agreement or otherwise, shall be deemed to have been received by Subordinated Creditor in trust as property of the holders of the Senior Debt and Subordinated Creditor shall forthwith deliver the same to the Agent for the benefit of the Senior Lenders for application to the Senior Debt until the Senior Debt is paid in full. A Distribution made pursuant to this Agreement to Agent or Senior Lenders which otherwise would have been made to Subordinated Creditor is not, as between the Company and Subordinated Creditor, a payment by the Company to or on account of the Senior Debt.

6. Modification. Any modification or waiver of any provision of this Agreement, or any consent to any departure by any party from the terms hereof, shall not be effective in any event unless the same is in writing and signed by Agent and Subordinated Creditor, and then such modification, waiver or consent shall be effective only in the specific instance and for the specific purpose given. Any notice to or demand on any party hereto in any event not specifically required hereunder shall not entitle the party receiving such notice or demand to any other or further notice or demand in the same, similar or other circumstances unless specifically required hereunder.

7. Further Assurances. Each party to this Agreement promptly will execute and deliver such further instruments and agreements and do such further acts and things as may be reasonably requested in writing by any other party hereto that may be necessary or desirable in order to effect fully the purposes of this Agreement.

8. Notices. Unless otherwise specifically provided herein, any notice delivered under this Agreement shall be in writing, addressed to the party to be notified and sent to the address or facsimile number indicated on the signature pages to this Agreement and may be personally served, telecopied or sent by overnight courier service or certified or registered United States mail and shall be deemed to have been given (a) if delivered in person, when delivered; (b) if delivered by telecopy, on the date of transmission if transmitted on a business day before 5:00 p.m. (New York time) or, if not, on the next succeeding business day; (c) if delivered by overnight courier, one business day after delivery to such courier properly addressed; or (d) if by United States mail, four business days after deposit in the United States mail, postage prepaid and properly addressed.

9. Successors and Assigns. This Agreement shall inure to the benefit of, and shall be binding upon, the respective successors and assigns of Agent, Senior Lenders, Subordinated Creditor and the Companies. To the extent permitted under the Senior Debt Documents, Senior Lenders may, from time to time, without notice to Subordinated Creditor, assign or transfer any or all of the Senior Debt or any interest therein to any Person and, notwithstanding any such assignment or transfer, or any subsequent assignment or transfer, the Senior Debt shall, subject to the terms hereof, be and remain Senior Debt for purposes of this Agreement, and every permitted assignee or transferee of any of the Senior Debt or of any interest therein shall, to the extent of the interest of such permitted assignee or transferee in the Senior Debt, be entitled to rely upon and be the third party beneficiary of the subordination provided under this Agreement and shall be entitled to enforce the terms and provisions hereof to the same extent as if such assignee or transferee were initially a party hereto.

10. Relative Rights. This Agreement shall define the relative rights of Agent, Senior Lenders and Subordinated Creditor. Nothing in this Agreement shall (a) impair, as among the Companies, Agent and Senior Lenders and as between the Companies and Subordinated Creditor, the obligation of the Companies with respect to the payment of the Senior Debt and the Subordinated Debt in accordance with their respective terms or (b) affect the relative rights of Agent, Senior Lenders or Subordinated Creditor with respect to any other creditors of the Company.

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11. Conflict. In the event of any conflict between any term, covenant or condition of this Agreement and any term, covenant or condition of any of the Subordinated Debt Documents, the provisions of this Agreement shall control and govern.

12. Headings. The paragraph headings used in this Agreement are for convenience only and shall not affect the interpretation of any of the provisions hereof.

13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

14. Severability. In the event that any provision of this Agreement is deemed to be invalid, illegal or unenforceable by reason of the operation of any law or by reason of the interpretation placed thereon by any court or governmental authority, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and the affected provision shall be modified to the minimum extent permitted by law so as most fully to achieve the intention of this Agreement.

15. Continuation of Subordination; Termination of Agreement. This Agreement shall remain in full force and effect until the indefeasible payment in full in cash of the Senior Debt and the termination of all lending commitments under the Senior Debt Documents after which this Agreement shall terminate without further action on the part of the parties hereto.

16. Applicable Law. This Agreement shall be governed by and shall be construed and enforced in accordance with the internal laws of the State of New York, without regard to conflicts of law principles.

17. CONSENT TO JURISDICTION. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. EACH OF SUBORDINATED CREDITOR AND THE COMPANIES HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF SUBORDINATED CREDITOR AND THE COMPANIES FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH OF SUBORDINATED CREDITOR AND THE COMPANIES HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE, AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

18. WAIVER OF JURY TRIAL. THE PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS AGREEMENT, ANY OF THE SUBORDINATED DEBT DOCUMENTS OR ANY OF THE SENIOR DEBT DOCUMENTS AND ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

[signature pages follow]

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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement under seal as of the date first above written.

	AGENT:
Addresses for Notices:	EJ FUNDS LP
	as Lender and Agent
EJ Funds LP
225 E. Deerpath Road
Suite 250	By:	EJ Financial Enterprises, Inc.
Lake Forest, Illinois 60045		Its General Partner
Attention: Rao Akella
Telecopy: (847) 295-8680	By:
		Name:	John N. Kapoor
		Title:	President
With a copy to:
McDermott Will & Emery LLP 227 West Monroe Street 47th Floor Chicago, Illinois 60606 Attention: Thomas J. Murphy Telecopy: (312) 984-7700

Signature page to Amended and Restated Subordination Agreement

	SUBORDINATED CREDITOR:
Address for Notices:	JOHN N. KAPOOR TRUST DATED SEPTEMBER 20, 1989
John N. Kapoor Trust Dated September 20, 1989
c/o Dr. John N. Kapoor	By:
225 E. Deerpath Road		Name:	John N. Kapoor
Suite 250		Title:	Trustee
Lake Forest, Illinois 60045
Attention: Dr. John N. Kapoor
Telecopy: (847) 295-8680
With a copy to:
McDermott Will & Emery LLP
227 West Monroe Street
47th Floor
Chicago, Illinois 60606
Attention: Thomas J. Murphy
Telecopy: (312) 984-7700
	COMPANIES:
Address for Notices:	AKORN, INC.
1925 West Field Court	By:
Suite 300		Name:	Timothy A. Dick
Lake Forest, Illinois 60045		Title:	Chief Financial Officer
Attention: Chief Financial Officer
Facsimile: (847) 353-4936
	AKORN (NEW JERSEY), INC.
	By:
		Name:	Timothy A. Dick
		Title:	Chief Financial Officer

Signature page to Amended and Restated Subordination Agreement