IF IN EXISTENCE
ON THE DATE HEREOF (EXCEPT AS CONTEMPLATED BY THE OPERATING PLAN), PROVIDED THAT
IF AT ANY TIME (A) THE COMPANY REQUESTS A LOAN (AS DEFINED IN THE CREDIT
AGREEMENT), (B) THE CONDITIONS SET FORTH IN SECTION 4.02 OF THE CREDIT AGREEMENT
HAVE NOT BEEN SATISFIED AND (C) OPTIONEE (AS LENDER UNDER THE CREDIT AGREEMENT)
DOES NOT MAKE SUCH LOAN, THE COMPANY SHALL, IF THE REQUIREMENTS OF CLAUSES
(2) AND (3) BELOW ARE MET, BE ENTITLED TO INCUR UNSECURED INDEBTEDNESS FOR
BORROWED MONEY THAT, WHEN TAKEN TOGETHER WITH ALL OTHER INDEBTEDNESS OUTSTANDING
UNDER THIS PROVISO, DOES NOT EXCEED $10,000,000 IN AGGREGATE PRINCIPAL AMOUNT,
(2) THAT WOULD REQUIRE THE APPROVAL OR CONSENT OF ANY OTHER PERSON TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE MERGER AGREEMENT OR WOULD
OTHERWISE PROHIBIT, INTERFERE WITH OR DELAY THE EXERCISE OF THE OPTION BY
OPTIONEE OR THE CONSUMMATION OF THE MERGER OR (3) THAT WOULD NOT BE PERMITTED TO
BE REPAID PURSUANT TO ITS TERMS IN CONNECTION WITH THE CONSUMMATION OF THE
MERGER WITHOUT THE PAYMENT OF ANY PREPAYMENT PENALTY OR FEE;
(XI)
ENTER INTO ANY CONTRACT FOR THE PURCHASE OF
REAL PROPERTY OR ANY OPTION TO EXTEND A LEASE LISTED IN SCHEDULE 3.10(B);
(XII)
SELL, LEASE (AS LESSOR), TRANSFER OR OTHERWISE
DISPOSE OF, OR MORTGAGE OR PLEDGE, OR IMPOSE OR SUFFER TO BE IMPOSED ANY
ENCUMBRANCE ON, ANY OF ITS ASSETS, OTHER THAN (A) INVENTORY AND MINOR AMOUNTS OF
PERSONAL PROPERTY SOLD OR OTHERWISE DISPOSED OF
48
FOR FAIR VALUE IN THE ORDINARY COURSE OF BUSINESS AND OTHER THAN PERMITTED
ENCUMBRANCES AND (B) SALES OR OTHER DISPOSITIONS NOT IN THE ORDINARY COURSE OF
BUSINESS SO LONG AS SUCH SALES OR DISPOSITIONS ARE CONTEMPLATED BY THE OPERATING
PLAN OR DO NOT EXCEED $100,000 (INDIVIDUALLY OR IN THE AGGREGATE);
(XIII)
CANCEL ANY DEBTS OWED TO OR CLAIMS HELD BY IT
(INCLUDING THE SETTLEMENT OF ANY CLAIMS OR LITIGATION) OTHER THAN IN THE
ORDINARY COURSE OF BUSINESS;
(XIV)
PAY, DISCHARGE OR SATISFY ANY CLAIMS, LIABILITIES
OR OBLIGATIONS (ABSOLUTE, ACCRUED, ASSERTED OR UNASSERTED, CONTINGENT OR
OTHERWISE), OTHER THAN THE PAYMENT, DISCHARGE OR SATISFACTION THEREOF IN THE
ORDINARY COURSE OF BUSINESS;
(XV)
ACCELERATE OR DELAY COLLECTION OF ANY NOTES OR
ACCOUNTS RECEIVABLE IN ADVANCE OF OR BEYOND THEIR REGULAR DUE DATES OR THE DATES
WHEN THE SAME WOULD HAVE BEEN COLLECTED IN THE ORDINARY COURSE OF BUSINESS;
(XVI)
DELAY OR ACCELERATE PAYMENT OF ANY ACCOUNT PAYABLE
OR OTHER LIABILITY BEYOND OR IN ADVANCE OF ITS DUE DATE OR THE DATE WHEN SUCH
LIABILITY WOULD HAVE BEEN PAID IN THE ORDINARY COURSE OF BUSINESS, EXCEPT THAT
THE COMPANY MAY PAY OFF, AT ANY TIME, ALL OUTSTANDING INDEBTEDNESS UNDER THE
LOAN AND SECURITY AGREEMENT, DATED AS OF AUGUST 30, 2007, AMONG SILICON VALLEY
BANK, OXFORD FINANCE CORPORATION, THE OTHER LENDERS PARTY THERETO, THE COMPANY,
CT RESEARCH, INC. AND FULCRUM PHARMACEUTICALS, INC.;
(XVII)
MAKE ANY CHANGE IN THE ACCOUNTING POLICIES APPLIED
IN THE PREPARATION OF THE FINANCIAL STATEMENTS CONTAINED IN SCHEDULE 3.4, EXCEPT
AS REQUIRED BY U.S. GENERALLY