|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/27/2019|
its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect or (iii) as of the Closing Date, to the knowledge of Borrower, after due inquiry, no union representation question existing with respect to the employees of Borrower or its Subsidiaries and no union organizing activity taking place with respect to any of the employees of Borrower or its Subsidiaries. None of Borrower or its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of Borrower and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All material payments due from Borrower or its Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of Borrower, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
4.20 Borrower as a Holding Company. Borrower is a holding company and does not have any material liabilities (other than liabilities permitted by this Agreement arising under the Loan Documents and liabilities permitted by the Prepetition Revolving Credit Agreement that were outstanding as of the Petition Date), own any material assets (other than Equity Interests of its Subsidiaries and the Treximet Intercompany Note) or engage in any operations or business, in each case, other than in respect of agreements in the Ordinary Course of Business pursuant to which Borrower is party rather than the relevant operating Subsidiary, including, (A) licenses, sub-licenses and co-promotion agreements for products distributed by any Subsidiary of Borrower, (B) marketing of products distributed by any Subsidiary of Borrower, (C) agreements with pharmacy benefit managers and managed care organizations related to rebates on products distributed by any Subsidiary of Borrower, (D) agreements with distributors that provide for the payment of fees and/or rebates in respect of products distributed by any Subsidiary of Borrower and (E) similar commercial agreements and transactions (including intercompany cash management arrangements), in each case, in the Ordinary Course of Business.
4.21 Leases. Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed possession under all leases material to their business and to which they are parties or under which they are operating, and, subject to Permitted Protests, all of such material leases are valid and subsisting and no default by the applicable Loan Party or its Subsidiaries exists under any of them, except as could not reasonably be expected to result in a Material Adverse Effect.
4.22 Pernix Manufacturing, LLC. Pernix Manufacturing, LLC does not engage in any business activity or have any material assets or liabilities (including any Indebtedness) other than (i) the performance of its rights and obligations under or in connection with its organizational documents or any Loan Document and (ii) liabilities and actions incidental to maintaining its existence and complying with applicable laws.
4.23 Pernix Ireland Pain. Except as disclosed in public filings of the Borrower with the SEC prior to the Closing Date or in the Disclosure Letter (as defined in the Stalking Horse Sale Agreement), Pernix Ireland Pain (i) does not have any material assets (other than assets constituting Prepetition Term Collateral), and (ii) does not have any material liabilities (including any Indebtedness) other than (x) the performance of its rights and obligations under or in connection with its organizational documents, any Loan Document, any Prepetition Term Financing Document, Nalpropion’s organizational documents or any Sale Agreement entered into in compliance with this Agreement, and (y) liabilities and actions incidental to maintaining its existence and complying with applicable laws.
4.24 Certain Intercompany Obligations. None of the Loan Parties owe any Indebtedness or any other material liabilities or obligations to any Subsidiary that is not a Loan Party, except to the extent