01Financial Statements and Other Information. Borrower will furnish to the Administrative Agent: (a) as soon as available and in any event within 45 days after the end of the first three fiscal quarters of each fiscal year (or 90 days, in the case of the fourth fiscal quarter), the consolidated balance sheets of the Obligors as of the end of such quarter, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of Borrower stating that such financial statements fairly present the financial condition of Borrower and its Subsidiaries as at such date and the results of operations of Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, such financial statements shall be deemed to have been delivered to the Administrative Agent on the date on which such financial statements are publicly available via XXXXX on the SEC’s website at xxx.xxx.xxx; (b) as soon as available and in any event within 90 days after the end of each fiscal year, the consolidated balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of Borrower’s then current independent certified public accountants of recognized national standing acceptable to the Majority Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and in the case of such consolidating financial statements, certified by a Responsible Officer of Borrower; provided that, such audited financial statements shall be deemed to have been delivered to the Administrative Agent on the date on which such financial statements are publicly available via XXXXX on the SEC’s website at xxx.xxx.xxx; (c) for any fiscal quarter during which the minimum Net Revenue covenant contained in Section 10.02 is in effect, together with the financial statements required pursuant to Sections 8.01(a) and (b), a compliance certificate of a Responsible Officer as of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate”) including details of any issues that are material that are raised by auditors; (d) together with the financial statements required pursuant to Sections 8.01(a) and (b), the reports required by Section 4.01 of the Revenue Participation Agreement; (e) promptly upon receipt thereof, copies of all letters of representation signed by an Obligor to its auditors and copies of all auditor reports delivered for each fiscal quarter; (f) promptly after the same are released, copies of all press releases; (g) promptly, and in any event within five Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor; (h) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05; (i) promptly following the Administrative Agent’s request at any time, proof of Borrower’s compliance with Article X; (i) copies of all statements, reports and notices made available to holders of Borrower’s Equity Interests and (ii) copies of all presentation materials or board kits provided to the Board of Directors of Borrower or any Subsidiary Guarantor, in each case within five (5) days of delivering or otherwise making available such material to such holders or directors; provided that any such material may be redacted by Borrower to exclude information relating to the Lenders (including Borrower’s strategy regarding the Loans); (k) from time to time upon the reasonable request of Majority Lenders, a comprehensive update on the business of the Obligors, including management reports and supporting data relating to productivity of sales representatives for the Products and weekly and monthly revenue, in each case in the aggregate and itemized by product and territory; (l) any correspondence with the FDA, including without limitation regarding any BLA or any other biologics licensing application with respect to any Product or any manufacturing audit; and (m) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Majority Lenders may from time to time reasonably request. For purposes of clarification, any request for the annually-prepared consolidated financial forecast for Borrower and its Subsidiaries for the following two fiscal years from the time such forecast was prepared, including projections of Net Revenue, on a quarterly basis, and forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries, shall be deemed reasonable. For the avoidance of doubt, in no event shall Borrower or any other Obligor furnish any of the materials and information required to be furnished under this Section 8.01 or Section 8.02 or any other provision of this Agreement or any other Loan Document that constitutes material non-public information to anyone other than to the Administrative Agent at the address of the Administrative Agent set forth in Section 15.02. Each Lender that desires that certain of its personnel not receive material non-public information with respect to Borrower and its Subsidiaries or their Affiliates shall so inform the Administrative Agent and shall designate one or more representatives that shall be permitted to receive from the Administrative Agent copies of materials and information furnished by Borrower or any other Obligor to the Administrative Agent.
Appears in 1 contract
Samples: Term Loan Agreement (Axogen, Inc.)
01Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentAgent for distribution to each Lender:
(a) as As soon as available and available, but in any event within 45 days five Business Days after the end of the first three fiscal quarters of each fiscal year (or 90 days, in the case of the fourth fiscal quarter), the consolidated balance sheets of the Obligors as of the end of such quarter, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of Borrower stating that such financial statements fairly present the financial condition of Borrower and its Subsidiaries as at such date and the results of operations of Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, such financial statements shall be deemed to have been delivered to the Administrative Agent on the date on which such financial statements are publicly available via XXXXX on required to be filed with the SEC (after giving effect to any permitted extensions) with respect to each of its Fiscal Years commencing with the Fiscal Year ending December 31, 2024 (or, if such financial statements are not required to be filed with the SEC’s website at xxx.xxx.xxx;
, on or before the date that is ninety (b90) as soon as available and in any event within 90 days after the end close of each fiscal yearsuch Fiscal Year), audited consolidated financial statements of the consolidated balance sheets of Borrower and its Subsidiaries for such Fiscal Year, including its consolidated balance sheet as of at the end of such fiscal year, Fiscal Year and the related consolidated statements of income, shareholders’ changes in equity and cash flows of Borrower and its Subsidiaries for such fiscal yearFiscal Year, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the previous fiscal yearFiscal Year, and prepared in accordance with GAAP and accompanied by a report and an opinion thereon of Borrower’s then current independent certified public accountants of recognized national standing acceptable to the Majority Lendersstanding, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or and without any qualification or exception as to the scope of such auditaudit (other than any such qualification or exception that is expressly with respect to, or expressly resulting from, (i) an upcoming maturity date under this Agreement or (ii) any prospective default or event of default in respect of Section 6.04) (it being understood and agreed that such report and opinion may include an explanatory note that is not a “going concern” exception or qualification or exception as to the scope of the audit performed as set forth above), and which opinion shall state that such audit was conducted in accordance with generally accepted auditing standards and said financial statements fairly present, in all material respects, the case financial condition and results of such consolidating financial statementsoperation of the Borrower and its consolidated Subsidiaries on a consolidated basis as at the end of, certified by a Responsible Officer of Borrower; provided thatand for, such audited financial statements shall be deemed to have been delivered to the Administrative Agent on Fiscal Year in accordance with GAAP consistently applied.
(b) As soon as available, but in any event within five Business Days after the date on which such financial statements are publicly available via XXXXX on required to be filed with the SEC (after giving effect to any permitted extensions) with respect to each of the first three Fiscal Quarters of each of its Fiscal Years commencing with the Fiscal Quarter ending September 30, 2024 (or, if such financial statements are not required to be filed with the SEC’s website , on or before the date that is forty-five (45) days after the end of such Fiscal Quarter), unaudited consolidated financial statements of the Borrower and its Subsidiaries for such Fiscal Quarter, including its consolidated unaudited balance sheets as at xxx.xxx.xxx;the end of such Fiscal Quarter and related consolidated unaudited statements of income, changes in equity and cash flows for such Fiscal Quarter and the then-elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by the Borrower executed on its behalf by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis as at the end of, and for, the period covered thereby in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes.
(c) for any fiscal quarter during which the minimum Net Revenue covenant contained in Section 10.02 is in effect, together Simultaneously with the financial statements required pursuant to Sections 8.01(a) and (b)delivery of each set of Financial Statements, a compliance certificate of a Responsible Officer as of Compliance Certificate with respect to the end of the applicable accounting fiscal period (which delivery may, unless a Lender requests executed originals, be covered by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate”) including details of any issues that are material that are raised by auditors;such financial statements.
(d) together Promptly (or, with the financial statements required pursuant respect to Sections 8.01(adecline in Index Debt Rating, within five (5) and (b)Business Days) after any Rating Agency shall have announced a change in such Rating Agency’s Index Debt Rating, the reports required by Section 4.01 written notice of the Revenue Participation Agreement;such change in such Index Debt Rating.
(e) promptly As soon as possible and in any event within ten (10) Business Days after the Borrower has Knowledge that any of the events or conditions specified below has occurred or exists with respect to any Plan or Multiemployer Plan that would reasonably be expected (individually or in the aggregate) to result in a Material Adverse Effect, notice of the same and a statement, signed by the Borrower executed on its behalf by a Financial Officer describing said event or condition and the action which the Borrower or applicable member of the Controlled Group proposes to take with respect thereto (and a copy of any report or notice required to be filed with or given to the PBGC by the Borrower or applicable member of the Controlled Group with respect to such event or condition):
(i) the occurrence of any Reportable Event, or any waiver shall be requested under Section 412(c) of the Code with respect to any Plan;
(ii) the receipt by the Borrower or any member of the Controlled Group from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan or the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or any action taken by the Borrower, any of its Subsidiaries or any member of the Controlled Group to terminate any Plan under Section 4041(c) of ERISA or the Borrower, any of its Subsidiaries or any member of the Controlled Group would reasonably be expected to incur any liability under Title IV of ERISA with respect to the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from any Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Plan or Multiemployer Plan by the Borrower, any of its Subsidiaries or any member of the Controlled Group that would reasonably be expected to result in liability of the Borrower, any of its Subsidiaries or such Controlled Group member under Title IV of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default), or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from a Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA;
(v) the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice or the receipt by any Multiemployer Plan from the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice concerning the imposition of any liability arising from a complete or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or would reasonably be expected to be, insolvent or in endangered, critical or critical and declining status;
(vi) the institution of a proceeding by a fiduciary of any Multiemployer Plan against the Borrower, any of its Subsidiaries or any member of the Controlled Group to enforce Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(vii) the adoption of an amendment to any Plan that would result in the loss of tax exempt status of the trust of which such Plan is a part if the Borrower, any of its Subsidiaries or any member of the Controlled Group fails to timely provide security to the Plan in accordance with the provisions of Section 436 of the Code and Section 206 of ERISA.
(f) Promptly upon receipt the filing thereof, copies of all letters registration statements (other than Form S-8 or any similar form) and annual (other than Form 11-K or any similar form), quarterly, monthly or other regular reports which the Borrower or any of representation signed by an Obligor its Subsidiaries files with the SEC, in each case to its auditors and copies of all auditor reports the extent not otherwise required to be delivered for each fiscal quarter;under this Agreement.
(fg) promptly after Promptly upon the same are releasedfurnishing thereof to all shareholders of the Borrower generally, copies of all press releases;financial statements, reports and proxy statements so furnished, in each case to the extent not otherwise required to be delivered under this Agreement.
(gh) promptlyPromptly, and in any event within five (5) Business Days Days, after receipt thereof by an Obligor the Borrower obtains Knowledge thereof, notice of the occurrence of a Default or Event of Default, specifying the nature thereof and what action the Borrower proposes to take with respect thereto.
(i) Promptly, and in any event within ten (10) Business Days, after the Borrower obtains Knowledge thereof, (i) the pendency or commencement of any litigation, arbitration or governmental proceeding against the Borrower or any Subsidiary which, in the opinion of the Borrower’s management, if adversely determined, would have or would reasonably be expected to have a Material Adverse Effect and (ii) the institution of any proceeding against any Loan Party or any of its Subsidiaries with respect to, or the receipt of notice by such Person of potential liability or responsibility for violation or alleged violation of, any law, rule or regulation (including any Environmental Law) which would reasonably be expected to have a Material Adverse Effect.
(j) Upon the reasonable request of the Administrative Agent or any Lender, certificates of insurance coverage with respect to the insurance required by Section 5.04 or copies of each notice the applicable policies.
(k) Promptly following any reasonable request therefor, (i) such other information (including nonfinancial information) as the Administrative Agent or any other correspondence received from any securities regulator or exchange to the authority of which Borrower Lender may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(h) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05;
(i) promptly following the Administrative Agent’s reasonably request at any time, proof of Borrower’s compliance with Article X;
(i) copies of all statements, reports and notices made available to holders of Borrower’s Equity Interests and (ii) copies of all presentation materials or board kits provided to information and documentation reasonably requested by the Board of Directors of Borrower Administrative Agent or any Subsidiary GuarantorLender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, in each case within five (5including the Patriot Act and the Beneficial Ownership Regulation. Documents or information required to be delivered or provided pursuant to Section 5.01(a), Section 5.01(b), Section 5.01(d), Section 5.01(e), Section 5.01(f) days of delivering or otherwise making available such material to such holders or directors; provided that any such material Section 5.01(g) may be redacted delivered electronically and shall be deemed to have been so delivered on the date (x) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s public website or (y) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website (including the SEC’s XXXXX website), if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Borrower to exclude information relating the Administrative Agent). The Administrative Agent may make available to the Lenders (including Borrower’s strategy regarding the Loans);
(k) from time to time upon the reasonable request of Majority Lenders, a comprehensive update materials and/or information provided by or on the business behalf of the ObligorsBorrower hereunder (collectively, including management reports and supporting data relating to productivity of sales representatives for “Company Materials”) by posting the Products and weekly and monthly revenue, in each case in the aggregate and itemized by product and territory;
(l) any correspondence with the FDA, including without limitation regarding any BLA or any other biologics licensing application with respect to any Product or any manufacturing audit; and
(m) such other information respecting the operations, properties, business or condition (financial or otherwise) Company Materials on an Approved Electronic Platform. The Borrower hereby acknowledges that certain of the Obligors (including with respect to the Collateral) as the Majority Lenders may from time to time reasonably request. For purposes of clarification, any request for the annually-prepared consolidated financial forecast for Borrower and its Subsidiaries for the following two fiscal years from the time such forecast was prepared, including projections of Net Revenue, on a quarterly basis, and forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries, shall be deemed reasonable. For the avoidance of doubt, in no event shall Borrower or any other Obligor furnish any of the materials and information required elect to be furnished under this Section 8.01 or Section 8.02 or any other provision of this Agreement or any other Loan Document “public-side” Lenders (i.e., Lenders that constitutes material non-public information do not wish to anyone other than to the Administrative Agent at the address of the Administrative Agent set forth in Section 15.02. Each Lender that desires that certain of its personnel not receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”) and its Subsidiaries or their Affiliates the Borrower hereby agrees that (w) all Company Materials that are to be made available to Public Lenders shall so inform be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Company Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and shall designate one the Lenders to treat such Company Materials as either publicly available information or more representatives that shall not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws, (y) all Company Materials marked “PUBLIC” are permitted to receive from be made available through a portion of the Approved Electronic Platform designated “Public Investor” and (z) the Administrative Agent copies shall be entitled to treat Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of materials and information furnished by Borrower or any other Obligor to the Administrative AgentApproved Electronic Platform not designated “Public Investor.”
Appears in 1 contract
01Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:Agent for distribution to each Lender (provided that, the Administrative Agent shall not be required to distribute any document or report to any Lender to the extent such distribution would cause the Administrative Agent to breach or violate any agreement that it has with another Person (including any non-reliance or non-disclosure letter with any Approved Third-Party Appraiser)):
(a) within 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2018), the audited consolidated balance sheet and the related audited consolidated statements of operations, audited consolidated statements of changes in net assets, audited consolidated statements of cash flows and related audited consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as soon of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year (to the extent full fiscal year information is available), all reported on by Xxxxx & Xxxxx LLP or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (which report shall be unqualified as available to going concern and scope of audit and shall not contain any explanatory paragraph or paragraph of emphasis with respect to going concern); provided that the requirements set forth in any event this clause (a) may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report filed by the Borrower with the SEC on Form 10-K for the applicable fiscal year;
(b) within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or 90 dayscommencing with the fiscal quarter ending March 31, 2019), the consolidated balance sheet and the related consolidated statements of operations, consolidated statements of changes in net assets, consolidated statements of cash flows and related consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and the then elapsed portion of the 110 fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the fourth fiscal quarter)statement of assets and liabilities, the consolidated balance sheets of the Obligors as of the end of) the corresponding period or periods of the previous fiscal year (to the extent such quarterinformation is available for the previous fiscal year), all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with on a certificate of a Responsible Officer of Borrower stating that such financial statements fairly present the financial condition of Borrower and its Subsidiaries as at such date and the results of operations of Borrower and its Subsidiaries for the period ended on such date and have been prepared consolidated basis in accordance with GAAP consistently applied, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notesfootnotes; provided that, such financial statements shall that the requirements set forth in this clause (b) may be deemed to have been delivered fulfilled by providing to the Administrative Agent for distribution to each Lender the report filed by the Borrower with the SEC on the date on which such financial statements are publicly available via XXXXX on the SEC’s website at xxx.xxx.xxx;
(b) as soon as available and in any event within 90 days after the end of each fiscal year, the consolidated balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures Form 10-Q for the previous fiscal year, accompanied by a report and opinion thereon of Borrower’s then current independent certified public accountants of recognized national standing acceptable to the Majority Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and in the case of such consolidating financial statements, certified by a Responsible Officer of Borrower; provided that, such audited financial statements shall be deemed to have been delivered to the Administrative Agent on the date on which such financial statements are publicly available via XXXXX on the SEC’s website at xxx.xxx.xxxapplicable quarterly period;
(c) for concurrently with any fiscal quarter during which the minimum Net Revenue covenant contained in Section 10.02 is in effect, together with the delivery of financial statements required pursuant to Sections 8.01(aunder clause (a) and (b), a compliance certificate of a Responsible Officer as of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate”) including details of any issues that are material that are raised by auditors;
(d) together with the financial statements required pursuant to Sections 8.01(a) and (b), the reports required by Section 4.01 of the Revenue Participation Agreement;
(e) promptly upon receipt thereof, copies of all letters of representation signed by an Obligor to its auditors and copies of all auditor reports delivered for each fiscal quarter;
(f) promptly after the same are released, copies of all press releases;
(g) promptly, and in any event within five Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(h) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05;
(i) promptly following the Administrative Agent’s request at any time, proof of Borrower’s compliance with Article X;
(i) copies of all statements, reports and notices made available to holders of Borrower’s Equity Interests and (ii) copies of all presentation materials or board kits provided to the Board of Directors of Borrower or any Subsidiary Guarantor, in each case within five (5) days of delivering or otherwise making available such material to such holders or directors; provided that any such material may be redacted by Borrower to exclude information relating to the Lenders (including Borrower’s strategy regarding the Loans);
(k) from time to time upon the reasonable request of Majority Lenders, a comprehensive update on the business of the Obligors, including management reports and supporting data relating to productivity of sales representatives for the Products and weekly and monthly revenue, in each case in the aggregate and itemized by product and territory;
(l) any correspondence with the FDA, including without limitation regarding any BLA or any other biologics licensing application with respect to any Product or any manufacturing audit; and
(m) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Majority Lenders may from time to time reasonably request. For purposes of clarification, any request for the annually-prepared consolidated financial forecast for Borrower and its Subsidiaries for the following two fiscal years from the time such forecast was prepared, including projections of Net Revenue, on a quarterly basis, and forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries, shall be deemed reasonable. For the avoidance of doubt, in no event shall Borrower or any other Obligor furnish any of the materials and information required to be furnished under this Section 8.01 or Section 8.02 or any other provision of this Agreement or any other Loan Document that constitutes material non-public information to anyone other than to the Administrative Agent at the address of the Administrative Agent set forth in Section 15.02. Each Lender that desires that certain of its personnel not receive material non-public information with respect to Borrower and its Subsidiaries or their Affiliates shall so inform the Administrative Agent and shall designate one or more representatives that shall be permitted to receive from the Administrative Agent copies of materials and information furnished by Borrower or any other Obligor to the Administrative Agent.or
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Barings BDC, Inc.)
01Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 45 days after the end of the first three fiscal quarters , on behalf of each fiscal year (or 90 daysLender, in the case of the fourth fiscal quarter), the consolidated balance sheets of the Obligors as of the end of such quarter, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such quarter and the portion of beginning with the fiscal year through the end of such quarterending December 31, prepared in accordance with GAAP consistently applied2019 and thereafter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of Borrower stating that such financial statements fairly present the financial condition of Borrower and its Subsidiaries as at such date and the results of operations of Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, such financial statements shall be deemed to have been delivered to the Administrative Agent on or before the date on which such financial statements are publicly available via XXXXX on required or permitted to be filed with the SEC (or, if such financial statements are not required to be filed with the SEC’s website at xxx.xxx.xxx;
(b) as soon as available and in any event within , on or before the date that is 90 days after the end of each such fiscal yearyear of the Borrower), the an audited consolidated balance sheets sheet and audited consolidated statements of income and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal year, and the related consolidated statements of incomenotes thereto, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in each case in comparative form the figures for the previous fiscal yearyear (which comparative form may be based on pro forma financial information to the extent any previous fiscal year includes a period occurring prior to the Effective Date), accompanied all reported on by a report and opinion thereon of Borrower’s then current KPMG LLP or other independent certified public accountants of recognized national standing acceptable to the Majority Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any (without a “going concern” or like qualification or exception or and without any qualification or exception as to the scope of such auditaudit (other than any exception or explanatory paragraph, and but not a qualification, that is expressly solely with respect to, or expressly resulting solely from, (A) an upcoming maturity date of any Indebtedness occurring within one year from the time such opinion is delivered or (B) any potential inability to satisfy a financial maintenance covenant on a future date or in a future period)) to the case of effect that such consolidating financial statements, certified by a Responsible Officer of Borrower; provided that, such audited consolidated financial statements shall be deemed to have been delivered to the Administrative Agent on the date on which such financial statements are publicly available via XXXXX on the SEC’s website at xxx.xxx.xxx;
(c) for any fiscal quarter during which the minimum Net Revenue covenant contained present fairly in Section 10.02 is in effect, together with all material respects the financial statements required pursuant to Sections 8.01(a) position and (b), a compliance certificate results of a Responsible Officer operations and cash flows of the Borrower and its Subsidiaries as of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate”) including details of any issues that are material that are raised by auditors;
(d) together with the financial statements required pursuant to Sections 8.01(a) and (b), the reports required by Section 4.01 of the Revenue Participation Agreement;
(e) promptly upon receipt thereof, copies of all letters of representation signed by an Obligor to its auditors and copies of all auditor reports delivered for each fiscal quarter;
(f) promptly after the same are released, copies of all press releases;
(g) promptly, and in any event within five Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(h) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05;
(i) promptly following the Administrative Agent’s request at any time, proof of Borrower’s compliance with Article X;
(i) copies of all statements, reports and notices made available to holders of Borrower’s Equity Interests and (ii) copies of all presentation materials or board kits provided to the Board of Directors of Borrower or any Subsidiary Guarantor, in each case within five (5) days of delivering or otherwise making available such material to such holders or directors; provided that any such material may be redacted by Borrower to exclude information relating to the Lenders (including Borrower’s strategy regarding the Loans);
(k) from time to time upon the reasonable request of Majority Lenders, a comprehensive update on the business of the Obligors, including management reports and supporting data relating to productivity of sales representatives for the Products and weekly and monthly revenue, in each case in the aggregate and itemized by product and territory;
(l) any correspondence with the FDA, including without limitation regarding any BLA or any other biologics licensing application with respect to any Product or any manufacturing audit; and
(m) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Majority Lenders may from time to time reasonably request. For purposes of clarification, any request for the annually-prepared consolidated financial forecast for Borrower and its Subsidiaries for the following two fiscal years from the time such forecast was prepared, including projections of Net Revenue, year on a quarterly basis, and forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries, shall be deemed reasonable. For the avoidance of doubt, basis in no event shall Borrower or any other Obligor furnish any of the materials and information required to be furnished under this Section 8.01 or Section 8.02 or any other provision of this Agreement or any other Loan Document that constitutes material non-public information to anyone other than to the Administrative Agent at the address of the Administrative Agent set forth in Section 15.02. Each Lender that desires that certain of its personnel not receive material non-public information accordance with respect to Borrower and its Subsidiaries or their Affiliates shall so inform the Administrative Agent and shall designate one or more representatives that shall be permitted to receive from the Administrative Agent copies of materials and information furnished by Borrower or any other Obligor to the Administrative Agent.GAAP consistently applied;
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
