QUALIFIED AND LICENSED COULD NOT REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT.
THIS AGREEMENT AND THE OTHER DEBT DOCUMENTS HAVE
BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY EACH LOAN PARTY AND CONSTITUTE
LEGAL, VALID AND BINDING AGREEMENTS ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS;
PROVIDED, HOWEVER, THAT THE RESOLUTIONS OF BORROWER'S BOARD OF DIRECTORS ADOPTED
ON OR ABOUT MAY 31, 2008 REQUIRE BORROWER TO OBTAIN FURTHER AUTHORIZATION OF THE
BOARD OF DIRECTORS TO BORROW ANY ADDITIONAL TERM LOAN AFTER THE CLOSING DATE.
THE EXECUTION, DELIVERY AND PERFORMANCE BY EACH LOAN PARTY OF EACH DEBT DOCUMENT
EXECUTED OR TO BE EXECUTED BY IT IS IN EACH CASE WITHIN SUCH LOAN PARTY'S
POWERS.
5.2.
REQUIRED CONSENTS.
NO FILING, REGISTRATION, QUALIFICATION WITH, OR
APPROVAL, CONSENT OR WITHHOLDING OF OBJECTIONS FROM, ANY GOVERNMENTAL AUTHORITY
OR INSTRUMENTALITY OR ANY OTHER ENTITY OR PERSON IS REQUIRED WITH RESPECT TO THE
ENTRY INTO, OR PERFORMANCE BY ANY LOAN PARTY OF, ANY OF THE DEBT DOCUMENTS,
EXCEPT ANY ALREADY OBTAINED.
5.3.
NO CONFLICTS.
THE ENTRY INTO, AND PERFORMANCE BY EACH LOAN PARTY OF,
THE DEBT DOCUMENTS WILL NOT (A) VIOLATE ANY OF THE ORGANIZATIONAL DOCUMENTS OF
SUCH LOAN PARTY, (B) VIOLATE ANY LAW, RULE, REGULATION, ORDER, AWARD OR JUDGMENT
APPLICABLE TO SUCH LOAN PARTY, OR (C) RESULT IN ANY BREACH OF OR
12
CONSTITUTE A DEFAULT UNDER, OR RESULT IN THE CREATION OF ANY LIEN, CLAIM OR
ENCUMBRANCE ON ANY OF SUCH LOAN PARTY'S PROPERTY (EXCEPT FOR LIENS IN FAVOR OF
AGENT, ON BEHALF OF ITSELF AND LENDERS) PURSUANT TO, ANY INDENTURE, MORTGAGE,
DEED OF TRUST, BANK LOAN, CREDIT AGREEMENT, OR OTHER MATERIAL AGREEMENT (AS
DEFINED BELOW) TO WHICH SUCH LOAN PARTY IS A PARTY.
AS USED HEREIN, "MATERIAL
AGREEMENT" MEANS (I) ANY AGREEMENT OR CONTRACT TO WHICH SUCH LOAN PARTY IS A
PARTY AND INVOLVING THE RECEIPT OR PAYMENT OF AMOUNTS IN THE AGGREGATE EXCEEDING
$250,000 PER YEAR, (II) ANY AGREEMENT OR CONTRACT TO WHICH SUCH LOAN PARTY IS A
PARTY THE TERMINATION OF WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT, (III) THE AZIMUTH AGREEMENT AND (IV) THAT CERTAIN SUBLICENSE
AGREEMENT DATED AS OF OCTOBER 13, 2006 (AS AMENDED, THE "PHARMANOVA AGREEMENT")
BY AND BETWEEN PHARMANOVA INC. AND BORROWER.
A LIST OF ALL MATERIAL AGREEMENTS
AS OF THE CLOSING DATE IS SET FORTH ON SCHEDULE B HERETO.
5.4.
LITIGATION.
THERE ARE NO ACTIONS, SUITS, PROCEEDINGS OR INVESTIGATIONS
PENDING AGAINST OR AFFECTING ANY LOAN PARTY BEFORE ANY COURT, FEDERAL, STATE,
PROVINCIAL, MUNICIPAL OR OTHER GOVERNMENTAL DEPARTMENT, COMMISSION, BOARD,
BUREAU, AGENCY OR INSTRUMENTALITY, DOMESTIC OR FOREIGN, OR ANY BASIS THEREOF,
WHICH INVOLVES THE POSSIBILITY OF ANY JUDGMENT OR LIABILITY THAT COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, OR WHICH QUESTIONS THE
VALIDITY OF THE DEBT DOCUMENTS, OR THE OTHER DOCUMENTS REQUIRED THEREBY OR ANY
ACTION TO BE TAKEN PURSUANT TO ANY OF THE FOREGOING, NOR DOES ANY LOAN PARTY
HAVE REASON TO BELIEVE THAT ANY SUCH ACTIONS, SUITS, PROCEEDINGS OR
INVESTIGATIONS ARE THREATENED.
AS USED IN THIS AGREEMENT, THE TERM