Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender: (i) no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent; (ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements; (iii) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; provided that, any revisions to such projections approved by Borxxxxx’x board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; (iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials); (v) within five (5) days of filing, all reports of the Borrower on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;
Appears in 2 contracts
Samples: Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Bxxxxxxx’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) after approval thereof by Borxxxxx’x Bxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borxxxxx’x Bxxxxxxx’s annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x Bxxxxxxx’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Bxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Bxxxxxxx’s security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;
(vi) prompt notice (and in any event within five (5) Business Days) of any amendments of or other changes to the respective Operating Documents of Borrower or any of the Guarantors, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or any Guarantor, which statements may be provided to Collateral Agent and each Lender by any Loan Party or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice (and in any event, with respect to clause (A), within five (5) Business Days) of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days’ (or such shorter period agreed to by the Collateral Agent) prior to any Loan Party’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xi) written notice delivered at least thirty (30) days’ (or such shorter period agreed to by the Collateral Agent) prior to Borrower’s or any Guarantor’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower or any of the Guarantors), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon any Loan Party becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Bxxxxxxx’s proposal regarding how to cure such Event of Default or event;
(xiii) prompt (and in any event within three (3) Business Days) notice if Borrower or any Subsidiary of Borrower has Knowledge that Borrower, or any Subsidiary or controlled Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) concurrently with the delivery of any updated Perfection Certificate pursuant to Section 6.2(c), written notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor and not previously disclosed to the Collateral Agent, in each case in an amount greater than One Hundred and Fifty Thousand Dollars ($150,000.00), and of the general details thereof;
(xv) if Borrower or any Guarantor is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) prompt (and in any event within three (3) Business Days) delivery of copies of any Material Agreement or any material amendment to, material modification of, termination of or material waiver under any Material Agreement;
(xvii) written notice delivered within ten (10) days of any Key Person ceasing to be actively engaged in the management of Bxxxxxxx;
(xviii) prompt (and in any event within 10 days) written notice of any litigation or governmental proceedings pending or, to the knowledge of the Responsible Officers, threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00);
(xix) prompt (and in any event within 10 days) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Six Hundred Thousand Dollars ($600,000.00) individually or in the aggregate in any calendar year; and
(xx) other information relating to the Borrower and its Subsidiaries as reasonably requested by Collateral Agent or any Lender; provided, that neither the Borrower nor any of its Subsidiaries will, pursuant to this Section 6.2(a)(xx) or Sections 6.2(d) or 6.8, be required to disclose or permit the inspection or discussion of, any document, information or other matter (A) except to the extent reasonably necessary in order to realize upon any of the Collateral as part of an exercise of remedies under this Agreement or the other Loan Documents following the occurrence and during the continuance of an Event of Default, information constituting material trade secrets to the extent not materially relevant to the credit analysis of the Borrower and its Subsidiaries and to the extent the disclosure of such trade secrets would be materially harmful to the business of the Borrower and its Subsidiaries, or (B) that is subject to attorney-client privilege (or similar legally-recognized privilege that would be lost by virtue of such disclosure to the Collateral Agent and Lenders) or constitutes attorney work product
(xxi) promptly (and in any event on [Monday] of each calendar week) weekly cash flow forecasting reports on a rolling prospective thirteen week basis, which such reports shall include a variance analysis to the previous week’s weekly cash flow forecast , in form and substance satisfactory to Collateral Agent in its sole discretion;
(xxii) promptly (and in any event on Monday and Thursday of each calendar week) bi-weekly revenue reports, which such reports shall include a variance analysis to prior year actual results and budgeted figures, in form and substance satisfactory to Collateral Agent in its sole discretion;
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries during such month; and
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8(a) during such month.
(c) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above for March, June, September and December but no later than thirty (30) days after the last day of each such month, deliver to the Collateral Agent an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to in the information set forth in the Perfection Certificate after the Effective Date.
(d) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than ninety thirty (9030) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing each month, copies of the same with month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the SEC, audited consolidated financial statements covering applicable institution(s); (iv) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the consolidated operations of Borrower Borrower’s Intellectual Property and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiB) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of could reasonably be expected to result in a Material Adverse Change; (xv) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, (D) changing any organizational number (if any) assigned by its jurisdiction of organization, or (E) registering or filing any Intellectual Property; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower or any Guarantor and of the general details thereof; (ix) other information as reasonably requested by Collateral Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP and in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders Collateral. Such audits shall be conducted no later more often than seven once during the term of this Agreement unless (7and more frequently if) days after an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such approval;
(iv) within five (5) days Lxxxxx to communicate with Bxxxxxxx’s accounting firm, in the presence of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports a Responsible Officer of the Borrower on Form 10‑Kor the Parent, 10‑Q and 8‑K filed with respect to the Securities and Exchange Commission; provided that documents required to be consolidated financial statements delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;6.2.
Appears in 2 contracts
Samples: Business Loan and Security Agreement (Biofrontera Inc.), Business Loan and Security Agreement (Biofrontera Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than ninety thirty (9030) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing each month, copies of the same with month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the SEC, audited consolidated financial statements covering applicable institution(s); (iv) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the consolidated operations of Borrower Borrower’s Intellectual Property and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiB) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of could reasonably be expected to result in a Material Adverse Change; (xv) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary in accordance with the terms of Section 6.10; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, (D) changing any organizational number (if any) assigned by its jurisdiction of organization, or (E) registering or filing any Intellectual Property; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower and of the general details thereof; (ix) other information as reasonably requested by Collateral Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP and in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders Collateral. Such audits shall be conducted no later more often than seven twice every year unless (7and more frequently if) days after an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such approval;
(iv) within five (5) days Lxxxxx to communicate with Bxxxxxxx’s accounting firm, in the presence of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports a Responsible Officer of the Borrower on Form 10‑Kor the Parent, 10‑Q and 8‑K filed with respect to the Securities and Exchange Commission; provided that documents required to be consolidated financial statements delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;6.2.
Appears in 2 contracts
Samples: Subordinated Business Loan and Security Agreement (Loop Media, Inc.), Subordinated Business Loan and Security Agreement (Loop Media, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver Unless the information is public and Borrower has provided direction to Collateral Lenders and Agent in writing (e-mail to suffice), as to where to access it, Borrower shall deliver to Agent and each Lender:
: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than ninety thirty (9030) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing each month, copies of the same with month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Agent and each Lender by Borrower or directly from the SEC, audited consolidated financial statements covering the consolidated operations applicable institution(s); (iv) prompt notice of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
any event that could reasonably be expected to result in a Material Adverse Change; (iiiv) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of (x) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary in accordance with the terms of Section 6.10; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, or (D) changing any organizational number (if any) assigned by its jurisdiction of organization; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower or any Guarantor and of the general details thereof; (ix) other information as reasonably requested by Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) Collateral. Such audits shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information conducted no more often than twice every year unless an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 2 contracts
Samples: Subordinated Business Loan Agreement (Energous Corp), Subordinated Business Loan Agreement (Energous Corp)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-prepared consolidated cash balance sheet summary and income statement revenue summary of the Borrower Parent and its consolidated Subsidiaries for such month and, at any time there are Immaterial Subsidiaries, a stand-alone cash balance and revenue summary for any such Immaterial Subsidiary for such month, in each case, certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety forty-five (9045) days after the last day of Borxxxxx’x each of Parent’s fiscal quarters, a company prepared consolidated and, if prepared by the Loan Parties or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Agent;
(iii) as soon as available, but no later than one hundred twenty (120) days after the last day of Parent’s fiscal year or within five seven (57) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower Parent and its consolidated Subsidiaries for such fiscal year, prepared under GAAPIFRS, consistently appliedapplied except explanatory footnotes, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x each Loan Party’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x each Loan Party’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x such Loan Party’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x such Loan Party’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(ivv) within five (5) days of delivery, copies of all reports, financial statements and non-ministerial statements, reports and notices made available to Borxxxxx’x any Loan Party’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrowerany Loan Party’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(vvi) as soon as available, but no later than thirty (30) days after the last day of each month, (i) copies of any material consent, authorization, approval, clearance, exemption, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of any regulatory body (including, without limitation, the FDA) obtained by any Loan Party or any of its Subsidiaries and (ii) copies of all purchase orders with a purchase price in excess of $10,000,000;
(vii) prompt notice of any material amendments of or other material changes to the respective Operating Documents of any Loan Party or any of its Subsidiaries;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(ix) prompt delivery of (and in any event within five (5) days Business Days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice delivered no more than ten (10) Business Days’ after any Loan Party’s creation of a New Subsidiary;
(xii) written notice delivered at least fifteen (15) days’ prior to any Loan Party’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Million Dollars ($1,000,000.00) in assets or property of any Loan Party or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiii) upon any Loan Party becoming aware of the existence of any Event of Default or Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or Default, and such Loan Party’s proposal regarding how to cure such Event of Default or Default;
(xiv) prompt notice if any Loan Party or its Subsidiary has Knowledge that any Loan Party, or any Subsidiary or Affiliate of any Loan Party, is listed on Form 10‑Kthe OFAC Lists or (a) is convicted on, 10‑Q (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and 8‑K filed held over on charges involving money laundering or predicate crimes to money laundering;
(xv) within fifteen (15) Business Days of becoming aware thereof, notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by any Loan Party, in each case in an amount greater than Five Hundred Thousand Dollars ($500,000.00) and of the general details thereof;
(xvi) if any Loan Party or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvii) prompt (and in any event, within three (3) Business Days) notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement which has had or could reasonably be expected to have a Material Adverse Change;
(xviii) promptly after (and in any event, within five (5) Business Days) the receipt or delivery thereof, notice of any notice of termination or default or similar notice in connection with any Material Agreement and notice of the execution of any new Material Agreement;
(xix) within thirty (30) days after the execution or occurrence thereof, notice of the execution of any new material amendment, consent, waiver or other modification to or termination of any Material Agreement not previously disclosed;
(xx) promptly (and in any event, within two (2) Business Days) notify Agent and each Lender of the occurrence of any default or event of default under any document or other agreement to which a Loan Party or any of its Subsidiaries is a party evidencing Indebtedness in excess of One Million Dollars ($1,000,000.00);
(xxi) for any Acquisition the purchase price of which is equal to or greater than $50,000,000, deliver to the Agent not more than twenty five (25) days prior to the date of such Acquisition (in each case to the extent available), notice of such Acquisition together with copies of all material documents relating to such Acquisition, and historical financial statements for such acquired entity, division or line of business; and
(xxii) other information regarding the financial condition, assets or operations of the Loan Parties as reasonably requested by Agent or any Lender.
(b) Concurrently with the Securities delivery of the financial statements specified in Section 6.2(a)(ii) above, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and Exchange Commissionupdates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement;
(iii) written notice of any litigation or governmental proceedings pending or threatened (in writing) against any Loan Party or any of its Subsidiaries, which individually could reasonably be expected to result in damages or costs to any Loan Party or any of its Subsidiaries of One Million Dollars ($1,000,000.00); and
(iv) written notice of all returns, recoveries, disputes and claims regarding Inventory which constitutes LumiraDx Products that involve more than One Million Dollars ($1,000,000.00) individually or Five Million Dollars ($5,000,000.00) in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with IFRS in all material respects. Each Loan Party shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of such Loan Party, Agent or any Lender, during regular business hours upon reasonable prior notice (provided that documents no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than once during any fiscal year period, unless (and more frequently if) an Event of Default has occurred and is continuing. Each Loan Party shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of such Loan Party, Agent or any Lender, discuss the financial and operational performance and future prospects of the Loan Parties and their Subsidiaries with their officers, directors and independent accountants. Documents required to be delivered pursuant to this clauses (ii), (iii) and (v) of Section 6.2(a)(v6.2(a) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest date on which (i) Parent or the Borrower post such documents, or provides a link thereto on the Borrower’s websites on the Internet; (ii) such documents are posted on Parent’s or the Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the Agent have access (whether a commercial, third party website or whether sponsored by the Agent), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet at wxx.xxx.xxxxxx.xxx.xxx; provided that (A) the Borrower shall, at the request of the Agent, continue to deliver copies (which delivery may be by electronic transmission) of such documents to the Agent and (B) the Borrower shall notify the Collateral Agent (which notification may be by emailfacsimile or electronic transmission) each time the Agent of the posting of any information is delivered such documents on any website described in this paragraph. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Agent and maintaining its copies of such documents. The Borrower agrees that the Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting thereto;the Communications on the Platform.
Appears in 2 contracts
Samples: Loan and Security Agreement (LumiraDx LTD), Loan and Security Agreement (LumiraDx LTD)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to each Purchaser (and with respect to clauses (vii), (viii), (ix) and (xiii) below, also to the Collateral Agent and each Lender:Agent):
(i) no later than within ten (10) days upon a request by any Purchaser, with respect to any given month for which at least thirty (30) days after have elapsed since the last day of each such month, a company-company prepared consolidated balance sheet and sheet, income statement and cash flow statement, subject to year-end adjustments and the absence of footnotes, covering the Borrower consolidated operations of Issuer and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral AgentRequired Purchasers;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Issuer’s first three fiscal quarters, a company prepared consolidated and, if prepared by Issuer, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Issuer and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Required Purchasers;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Issuer’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower Issuer and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on financial statements from an independent certified public accounting firm reasonably acceptable to the financial statements;
Required Purchasers (iii) after approval thereof by Borxxxxx’x board it being understood that any accounting firm of directors, but no later than national standing is reasonably acceptable to the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; provided that, any revisions to such projections approved by Borxxxxx’x board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalRequired Purchasers);
(iv) within five (5) days of deliveryfiling, copies of all nonreports on Form 10-ministerial statementsK, reports 10-Q and notices made available to Borxxxxx’x security holders (other than materials provided to members of 8-K filed with the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)SEC;
(v) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower on Form 10‑K, 10‑Q Governmental Approvals material to Issuer’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(vi) prompt notice of any event that (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(vii) written notice delivered at least ten (10) days’ prior to Issuer’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10);
(viii) written notice delivered at least twenty (20) days’ (or such shorter period of time as Required Purchasers may agree) prior to Issuer’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Million Dollars ($1,000,000) in assets or property of Issuer or any of its Subsidiaries or are contract manufacturing sites), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(ix) upon Issuer or any Guarantor becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Issuer’s proposal regarding how to cure such Event of Default or event;
(x) immediate notice if Issuer or such Subsidiary has Knowledge that Issuer, or any Subsidiary or Affiliate of Issuer, is a Blocked Person or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xi) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Issuer or any Guarantor, in each case in an amount greater than One Million Dollars ($1,000,000) and of the general details thereof;
(xii) if Issuer or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xiii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Closing Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement; provided that documents delivery of such updated Perfection Certificate shall only be required once every six (6) months, starting with the month ending December 31, 2022;
(xiv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Issuer or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Issuer or any of its Subsidiaries in an amount greater than One Million Dollars ($1,000,000); and
(xv) other information as reasonably requested by any Purchaser; provided, that Issuer and each Guarantor, and each of their respective Subsidiaries, as applicable, shall not be required to deliver any information to a Purchaser pursuant to subsections (v), (vi), (x), (xi), and (xiv) above unless a Purchaser has specifically requested the same in writing, in which case the Issuer and each Guarantor, and each of their respective Subsidiaries, as applicable, shall provide such information pursuant to this Section 6.2(a) unless and until such Purchaser withdraws such request by delivery of written notice to the applicable party; provided, further, that such Purchaser may withdraw its request by delivery of written notice to the applicable party at any time, including prior to delivery of any such information requested. Notwithstanding the foregoing, (x) the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which (A) Issuer posts such documents, or provides a link thereto, on Issuer’s website on the internet at Issuer’s website address or (B) such documents are posted filed of record with the SEC, and (y) a Purchaser may designate an entity to receive information provided under this Section 6.2(a) (other than any information filed with the SEC).Issuer will be deemed to comply with the delivery requirements of financial and other information pursuant to Sections 6.2(a)(ii) and (iii) by timely filing, within the time periods (including any extension thereof) specified in the SEC’s rules and regulations, its quarterly report on Form 10-Q and its annual report on Form 10-K for the corresponding period, as applicable, with the SEC via the SEC’s XXXXX system (or any successor thereto). Notwithstanding anything to the contrary herein, the Issuer or Guarantors shall not provide any information under this Section 6.2(a), if Bluescape informs the Issuer in writing that it does not wish to receive such information.
(b) No later than forty-five (45) days after the last day of each month, deliver to each Purchaser a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Issuer shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Issuer, Collateral Agent or any Purchaser, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 2 contracts
Samples: Note Purchase Agreement (5E Advanced Materials, Inc.), Note Purchase Agreement (5E Advanced Materials, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) as soon as available, but no later than thirty (30) days after the last day of each quarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and its consolidated Subsidiaries for such month certified each Lender by a Responsible Officer Borrower or directly from the applicable institution(s); (iv) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a form reasonably acceptable to the Collateral Agent;
Material Adverse Change; (iiv) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of (x) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary in accordance with the terms of Section 6.10; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, (D) changing any organizational number (if any) assigned by its jurisdiction of organization, or (E) registering or filing any Intellectual Property; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower or any Guarantor and of the general details thereof; (ix) other information as reasonably requested by Collateral Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP and in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders Collateral. Such audits shall be conducted no later more often than seven twice every year unless (7and more frequently if) days after an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such approval;
(iv) within five (5) days Lxxxxx to communicate with Bxxxxxxx’s accounting firm, in the presence of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports a Responsible Officer of the Borrower on Form 10‑Kor the Parent, 10‑Q and 8‑K filed with respect to the Securities and Exchange Commission; provided that documents required to be consolidated financial statements delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;6.2.
Appears in 2 contracts
Samples: Subordinated Business Loan and Security Agreement (Perfect Moment Ltd.), Subordinated Business Loan and Security Agreement (Perfect Moment Ltd.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available after approval thereof by each Loan Party’s board of directors (or similar governing body), but no later than thirty the earlier of (30x) ten (10) days’ after such approval and (y) sixty (60) days after the end of Borrower’s fiscal year, Borrower’s consolidated annual financial projections for each fiscal quarter of the next fiscal year (if delivered prior to December 31) or of such fiscal year (if delivered in accordance with the preceding clause (y) after December 31), developed by the Loan Parties in good faith and approved by each Loan Party’s board of directors (or similar governing body), in form and substance reasonably acceptable to Collateral Agent (the “Future Budgets” and, together with the 2020 Budget, the “Budget”);
(ii) as soon as available, but no later than forty-five (45) days after the last day of each monthfiscal quarter, a company-prepared consolidated balance sheet and income statement copy of the Borrower and its consolidated Subsidiaries Budget updated to include the actual amounts for such month fiscal quarter and any prior fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iiiii) as soon as available, but no later than ninety forty-five (9045) days after the last day of Borxxxxx’x each of Borrower’s fiscal quarters, a company prepared consolidated and, if prepared by the Loan Parties, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iv) as soon as available, but no later than one hundred eighty (180) days after the last day of Borrower’s fiscal year or (or, for the fiscal year ended December 31, 2019, two hundred ten (210) days after December 31, 2019) or, if applicable, within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; provided that, if Borrower does not deliver to Lender an Unqualified Opinion on the financial statements or if the certified public accountants opining on such financial statements identify any revisions to material weaknesses, Lenders shall have the right to, and Borrower hereby authorizes Lenders to, speak with such projections approved by Borxxxxx’x board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after certified public accountants regarding such approvalfinancial statements;
(ivv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x any Loan Party’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s any Loan Party board of directors solely in their capacities as security holder and other than materials or holders of Subordinated Debt); provided, however, the foregoing may be subject to such redactions as Borrower determines in good faith are reasonably necessary to (1) preserve the confidentiality arrangements which preclude of highly sensitive information, (2) prevent impairment of the Borrower attorney client privilege or (3) prevent conflict of interest with Lenders; provided, further, that in case of (1) and (2) (solely, in the case of clause (2), to so deliver any the extent such materialsdisclosure is otherwise required under this Agreement), each Lender shall receive notice of (A) the existence of such statement, report or notice and (B) the basis for such exclusion;
(vvi) in the event that any Loan Party becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) together with delivery of the next Compliance Certificate, notice and copies of any amendments of or other changes to (i) the capitalization table of any Loan Party or any of its Subsidiaries and (ii) the respective Operating Documents of any Loan Party or any of its Subsidiaries;
(viii) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter (or, if Borrower’s unrestricted cash or Cash Equivalents held in Deposit Accounts subject to Control Agreements in favor of the Collateral Agent for the ratable benefit of the Secured Parties total less than Three Million Dollars ($3,000,000.00), no later than thirty (30) days after the last day of each month), a statement of the cash position of the Loan Parties;
(ix) promptly (and in any event, within five (5) Business Days) after reasonable request therefor, statements of accounts for each Deposit Account showing the daily balance of all unrestricted cash and Cash Equivalents therein;
(x) prompt delivery of (and in any event within five (5) Business Days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(xi) prompt notice (and in any event, within five (5) Business Days) of any event that could (A) reasonably be expected to materially and adversely affect the value of the Intellectual Property (including with respect to the validity, enforceability or ownership status thereof) or (B) could reasonably be expected to result in a Material Adverse Change;
(xii) written notice delivered at least ten (10) days’ prior to any Loan Party’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xiii) written notice delivered at least ten (10) days’ prior to any Loan Party’s (A) changing its respective jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its respective legal name, or (D) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiv) upon any Loan Party becoming aware of the existence of any Default or Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Default or Event of Default and such Loan Party’s proposal regarding how to cure such Default or Event of Default;
(xv) prompt notice if any Loan Party or its Subsidiary has Knowledge that any Loan Party, or any Subsidiary or Affiliate of any Loan Party, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xvi) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) held by any Loan Party and of the general details thereof;
(xvii) promptly (and in any event, within five (5) Business Days) notify Collateral Agent and each Lender of the occurrence of any default or event of default under (i) the Permitted Senior Debt Documents or (ii) any other document or other agreement to which a Loan Party is a party evidencing Indebtedness in excess of Two Hundred Fifty Thousand Dollars ($250,000.00);
(xviii) other information as reasonably requested by Collateral Agent or any Lender; provided provided, however, the foregoing may be subject to such redactions as Borrower determines in good faith are reasonably necessary to (1) preserve the confidentiality of highly sensitive information, (2) prevent impairment of the attorney client privilege or (3) prevent conflict of interest with Lenders; provided, further, that documents in each case of (1) and (2) (solely, in the case of clause (2), to the extent such disclosure is otherwise required under this Agreement), each Lender shall receive notice of (A) the existence of such statement, report or notice and (B) the basis for such exclusion; and
(xix) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter, record assignments of any later acquired Intellectual Property with the relevant United States recording office and provide Lender with sufficient evidence of such recording so as to enable Lender to perfect and maintain a first priority perfected security interest in such later acquired Intellectual Property. Notwithstanding the foregoing, the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii)-(iv) shall above will be deemed to have been be delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(iii) above but no later than forty-five (45) days after the last day of each fiscal quarter, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by any Loan Party or any of its Subsidiaries; and
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(c) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(iii) above with respect to the fourth quarter of each fiscal year but no later than forty-five (45) days after the last day of Borrower’s fiscal year, deliver to each Lender an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this agreement;
(d) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Each Loan Party shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of such Loan Party, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral; and each Loan Party shall, and shall notify cause each of its Subsidiaries to, allow, at the sole cost of such Loan Party, Collateral Agent or any Lender, discuss the financial and operational performance and future prospects of the Loan Parties and their Subsidiaries with their officers, directors and independent accountants;
(e) Deliver to each Lender prompt written notice (and in any event, within five (5) Business Days) of any litigation or governmental proceedings pending or threatened (in writing) against any Loan Party, which may could reasonably be by email) each time any information is delivered by posting thereto;expected to result in a Material Adverse Change.
Appears in 2 contracts
Samples: Loan and Security Agreement (Rapid Micro Biosystems, Inc.), Loan and Security Agreement (Rapid Micro Biosystems, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of the first three (3) of Borrower’s fiscal quarters, a company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer (provided, however, that such certification by a Responsible Officer of Borrower shall be deemed to have made if a similar certification is required under the Xxxxxxxx-Xxxxx Act of 2002 and such certification shall have been made available within the time period specified above on the SEC’s XXXXX system (or any successor system adopted by the SEC) and in a form reasonably acceptable to the Collateral Agent).
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Xxxxxxxx’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 sixty days after the start of the immediately preceding then-current calendar year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming then-next or current, as applicable, fiscal year as approved by Borxxxxx’x Xxxxxxxx’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Xxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to result in a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice delivered at least ten (10) days’ prior to Xxxxxxxx’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(x) written notice delivered at least ten (10) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Thousand Dollars ($200,000.00) in assets or property of Borrower or any of its Subsidiaries) (it being understood that this clause shall not apply to assets or property in transit), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xi) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Xxxxxxxx’s proposal regarding how to cure such Event of Default or event;
(xii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xiv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within ten (10) days of receiving such organizational identification number;
(xv) prompt notice of the execution of any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that documents and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the financial statements or other reports required to be delivered pursuant to this Section 6.2(a)(vclauses (ii), (iii) and (iv) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Xxxxxxxx’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above for each March, June, September and December, but no later than thirty (30) days after the last day of each such month, deliver to each Lender (x) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this agreement or (y) a certificate of a Responsible Officer certifying that there has been no change in such information from the most recent Perfection Certificate delivered to Collateral Agent.
(c) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of One Hundred Fifty Thousand Dollars ($150,000.00); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than One Hundred Thousand Dollars ($100,000.00) individually or in the aggregate in any calendar year.
(d) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than once every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Neuronetics, Inc.), Loan and Security Agreement (Neuronetics, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month month, certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) (A) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements, and (B) along with the delivery of the financial statements under clause (B) of this Section 6.2(a)(ii), an updated Perfection Certificate of Borrower to reflect any amendments, modifications and updates, if any, in the Perfection Certificate after the Effective Date;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten fifteen (1015) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, that any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K with the SEC;
(vi) together with the Compliance Certificate, notice of any amendments to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental 24 Authority that could reasonably be expected to have a material adverse effect on Form 10‑Kany of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that, 10‑Q to the Knowledge of the Responsible Officers, (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10);
(xi) written notice delivered at least fifteen (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Hundred Thousand Dollars ($100,000) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor which it intends to pursue, in each case in an amount greater than One Hundred Fifty Thousand Dollars ($150,000) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a duly authorized officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof; and
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000), and written notice of all returns (excluding expired product), disputes and claims regarding Inventory that involve more than One Hundred Thousand Dollars ($100,000) individually or in the aggregate in any month.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects except, in the case of unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and for delivery to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days following after the last day of each monthfiscal quarter or the date of the filing of Borrower’s reports on Form 10-Q with the Securities and Exchange Commission for such fiscal quarter of the Borrower, a company-company prepared consolidated balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to Maturity Date (and the impact of the Obligations payable on such date) that is within one year from the time such opinion is delivered) on such financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (it being understood that KPMG is acceptable to the Collateral Agent);
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors, which such financial projections and budget shall be set forth in a quarterly format (such annual financial projections as originally delivered to Collateral Agent are referred to herein as the “Annual Projections”; provided that, any revisions to such projections the Annual Projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders Borrower’s board of directors provided at full meetings of the board of directors (other than materials “Board Packages”); provided however that Borrower need not provide the Lenders with copies of routine actions of the board of directors, including without limitation option and stock grants under Borrower’s equity incentive plan in the normal course of business; and provided, further, however, that such Board Packages may be redacted to members the extent that (i) the board of directors determines such redaction is reasonably necessary to preserve the attorney-client privilege between Borrower and its counsel or any Subsidiary of Borrower and its counsel, to protect highly confidential proprietary information, or to comply with applicable law or regulation, (ii) such redacted material relates to the Lenders (or Borrower’s strategy regarding the Loans or Lenders) or (iii) such redacted material relates to executive sessions of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)directors;
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K, 10‑Q 10 Q and 8‑K 8 K filed with the Securities and Exchange Commission;
(vi) prompt notice of any amendments of or other changes to the Operating Documents of Borrower or any of its Subsidiaries in manner that is adverse to the interest of the Lenders, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice after becoming aware of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property; provided provided, that if Borrower has reasonably and in good faith determined that a common interest agreement is advisable prior to disclosure of such event to preserve the attorney-client privilege between Borrower and its counsel or any Subsidiary of Borrower and its counsel, Collateral Agent and/or Lender shall enter into a common interest agreement with Borrower in a form reasonably acceptable to Borrower before any disclosure of such event is made, and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) prompt written notice of any of Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) prompt notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) written notice of any commercial tort claim in excess of $250,000 and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding anything to the contrary in this Section 6.2(a), documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address or on the Securities and Exchange Commission’s website at xxx.xxx.xxx (or any successor website).
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above, deliver to Collateral Agent for delivery to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) if such month is the last month of the quarter, an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries (other than relating to Intellectual Property);
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than One Hundred and Fifty Thousand Dollars ($150,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than One Hundred and Fifty Thousand Dollars ($150,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole reasonable cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lender, Borrower shall notify agrees to permit such Lender to communicate with Borrower’s accounting firm with respect to the Collateral Agent (which may be by email) each time any information is consolidated financial statements delivered by posting thereto;pursuant to this Section 6.2.
Appears in 1 contract
Samples: Loan and Security Agreement (Eiger BioPharmaceuticals, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) a. Deliver to Collateral Agent and each Lender:
(i) Agent: i. commencing with the month ending August 31, 2015, as soon as available, but no later than thirty (30) days after the last day of each monthmonth (forty-five (45) days after the last day of the final month of each quarter), a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) . as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to a going concern qualification based solely on the amount of cash and Cash Equivalents held by Borrower) on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) . as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding yearapproval, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days . together with the delivery of deliverythe Compliance Certificate, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (except as otherwise required to be delivered hereunder, other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and board members or management of Borrower) or holders of Subordinated Debt (except as otherwise required to be delivered hereunder, other than materials subject provided to confidentiality arrangements which preclude the Borrower to so deliver any such materialsmembers of Borrower’s board of directors solely in their capacities as board members or management of Borrower);
v. with each Compliance Certificate, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
vi. prompt delivery of (v) and in any event within five (5) days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower on Form 10‑K, 10‑Q Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
vii. prompt notice of any event that (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
viii. written notice delivered at least ten (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10;
ix. written notice delivered at least twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
x. upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
xi. immediate notice if Borrower or such Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
xii. together with the delivery of the Compliance Certificate, notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Fifty Thousand Dollars ($50,000) and of the general details thereof;
xiii. if Borrower has any Subsidiaries any of which is not a Registered Organization upon formation thereof but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
xiv. no later than 45 days after the end of each fiscal quarter an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date; provided that and
xv. other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the terms herein, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;Borrower’s website address.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than ninety thirty (9030) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing each month, copies of the same with month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the SEC, audited consolidated financial statements covering applicable institution(s); (iv) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the consolidated operations of Borrower Borrower’s Intellectual Property and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiB) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of could reasonably be expected to result in a Material Adverse Change; (xv) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary in accordance with the terms of Section 6.10; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, (D) changing any organizational number (if any) assigned by its jurisdiction of organization, or (E) registering or filing any Intellectual Property; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower or any Guarantor and of the general details thereof; (ix) other information as reasonably requested by Collateral Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP and in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders Collateral. Such audits shall be conducted no later more often than seven twice every year unless (7and more frequently if) days after an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such approval;
(iv) within five (5) days Lxxxxx to communicate with Bxxxxxxx’s accounting firm, in the presence of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports a Responsible Officer of the Borrower on Form 10‑Kor the Parent, 10‑Q and 8‑K filed with respect to the Securities and Exchange Commission; provided that documents required to be consolidated financial statements delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;6.2.
Appears in 1 contract
Samples: Subordinated Business Loan and Security Agreement (American Rebel Holdings Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthquarter, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and sixty (y60) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as directors, security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)holders or holders of Subordinated Debt;
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries (other than an Excluded Account), which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(x) written notice at least (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) change its legal name, (E) changing any organizational number (if any) assigned by its jurisdiction of organization, or (F) registering or filing any Intellectual Property;
(xi) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) notice of any commercial tort claim with an expected value in excess of Fifty Thousand Dollars ($50,000) and of the general details thereof;
(xiv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xv) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each quarter, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lender, Borrower shall notify agrees to permit such Lender to communicate with Borrower’s accounting firm with respect to the Collateral Agent (which may be by email) each time any information is consolidated financial statements delivered by posting thereto;hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Imprimis Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) [***] days after the last day of each monthquarter, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) [***] days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ [***] days after such approval and (y) each December 15 [***] days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x and within [***] days following any Equity Cure, Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, (I) any revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) [***] days after such approval); and (II) any updated financial projections and/or budget delivered in connection with any Equity Cure shall be used by Collateral Agent to reset, as applicable, and review compliance with, the Performance to Plan Milestone;
(iv) within five (5) [***] days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as directors, security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)holders or holders of Subordinated Debt;
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) [***] days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) prompt notice of any amendments of or other changes to the capitalization table of Borrower and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than (x) [***] days after the last day of each month, if provided directly by the relevant financial institution, or (y) [***] days after the last day of each quarter, if provided by Borrower, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within [***] days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least [***] days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice at least [***] days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than [***] in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within [***] Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within [***] Business Days of receiving such organizational identification number;
(xvi) within [***] days after the earlier of each month end and delivery of the same, copies of all notices, minutes, consents and other materials that Borrower provides to its directors or other persons in connection with meetings of Borrower’s board of directors, as furnished to such directors or other persons; provided that Borrower shall be entitled to withhold any information, if and to the extent that access to such information would adversely affect the attorney-client privilege between Borrower and its counsel; and
(xvii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than [***] days after the last day of each quarter, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than [***] Dollars ($[***]); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than [***] Dollars ($[***]) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lender, Borrower shall notify the agrees to permit Collateral Agent to communicate with Borrower’s accounting firm with respect to the consolidated financial statements delivered pursuant to this Section 6.2 (which may provided that Collateral Agent shall be by email) each time permitted to include any information is delivered by posting thereto;Lender to participate in such communications).
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a companyCompliance Certificate certified by a Responsible Officer;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s fiscal quarters, a company prepared consolidated balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iiiii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual budget and financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any material revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(ivv) within five ten (510) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders generally or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(vvi) within five ten (510) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission; ;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) a summary of all material correspondence, reports, documents and other filings with any Governmental Authority that documents could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change (any materials required to be delivered pursuant under this subclause (viii) may be delivered by Borrower (a) publically filing such materials in a format accessible to the general public, and (b) providing notice of such filing and the specific location of such materials within such filing to the Collateral Agent);
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice delivered at least thirty (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in property (excluding Special Inventory) of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Five Hundred Thousand Dollars ($500,000.00) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) prompt notice of the execution of any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement;
(xvii) other information as reasonably requested by Collateral Agent or any Lender.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii) above but no later than forty-five (45) days after the last day of each quarter, deliver to each Lender:
(i) [reserved];
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 6.2(a)(v5.8 hereof;
(v) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Seven Hundred Fifty Thousand Dollars ($750,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Seven Hundred Fifty Thousand Dollars ($750,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be deemed required when an Event of Default has occurred and is continuing), to have been delivered on visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Rubius Therapeutics, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) February 28 of each December 15 of the immediately preceding year, Borxxxxx’x Xxxxxxxx’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Xxxxxxxx’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Xxxxxxxx’s security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxxxxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of the first three (3) of Borrower’s fiscal quarters, a company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer (provided, however, that such certification by a Responsible Officer of Borrower shall be deemed to have made if a similar certification is required under the Xxxxxxxx-Xxxxx Act of 2002 and such certification shall have been made available within the time period specified above on the SEC’s XXXXX system (or any successor system adopted by the SEC) and in a form reasonably acceptable to the Collateral Agent).
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 sixty days after the start of the immediately preceding then-current calendar year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming then-next or current, as applicable, fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to result in a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice delivered at least ten (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(x) written notice delivered at least ten (10) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Thousand Dollars ($200,000.00) in assets or property of Borrower or any of its Subsidiaries) (it being understood that this clause shall not apply to assets or property in transit), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xi) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xiv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within ten (10) days of receiving such organizational identification number;
(xv) prompt notice of the execution of any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that documents and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the financial statements or other reports required to be delivered pursuant to this Section 6.2(a)(vclauses (ii), (iii) and (iv) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above for each March, June, September and December, but no later than thirty (30) days after the last day of each such month, deliver to each Lender (x) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this agreement or (y) a certificate of a Responsible Officer certifying that there has been no change in such information from the most recent Perfection Certificate delivered to Collateral Agent.
(c) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of One Hundred Fifty Thousand Dollars ($150,000.00); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than One Hundred Thousand Dollars ($100,000.00) individually or in the aggregate in any calendar year.
(d) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than once every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth of Borrower, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any board approved revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all material non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely directors, security holders or holders of Subordinated Debt; provided, notwithstanding anything set forth in their capacities as security holder and other than materials subject this Section 6.2(a)(iv), Borrower shall not be required to confidentiality arrangements which preclude the Borrower to so deliver any such materials)statements, reports or notices (i) if Borrower determines in good faith and upon the advice of counsel that the receipt of such materials by Collateral Agent or the Lenders would jeopardize the attorney-client privilege between Borrower and its counsel, or any Subsidiary of Borrower and its counsel, (ii) if and to the extent necessary, to protect highly confidential proprietary information of Borrower or any of its Subsidiaries or (iii) if information that is being disclosed in such materials relate to Borrower or Subsidiary’s strategy, negotiating positions or similar matters relating to Collateral Agent or the Lenders;
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K, 10‑Q 10 Q and 8‑K 8 K filed with the Securities and Exchange Commission;
(vi) prompt notice of any amendments of or other changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice at least (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Three Hundred Thousand Dollars ($300,000.00) of book value in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim in excess of $100,000 (other than unasserted commercial tort claims) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) if such months is the last month of the quarter, an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Two Hundred Fifty Thousand Dollars ($250,000.00) not paid or covered by independent third party insurance; and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Thousand Dollars ($200,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than once every year unless (and more frequently if) an Event of Default has occurred and is continuing provided that unless an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lender, Borrower agrees to permit such Lender to communicate with Borrower’s accounting firm with respect to the consolidated financial statements delivered pursuant to this Section 6.2, provided such communication shall notify be in the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;presence of an authorized representative of Borrower.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter of Borrower, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than the later of (i) ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or (ii) within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely directors, security holders or holders of Subordinated Debt, provided that Borrower shall not be required to provide any information that is highly sensitive or a trade secret, as determined in their capacities as security holder and other than materials good faith by Borrower’s board of directors, subject to confidentiality arrangements attorney-client privilege or which preclude the Borrower to so deliver any such materials)presents a conflict of interest with Collateral Agent or Lenders;
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice at least (10) days prior to Borrower’s creation of a Subsidiary in accordance with the terms of Section 6.10);
(x) written notice: (1) at least thirty (30) days prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) change its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization; and (2) at least fifteen (15) days prior to Borrower’s registering or filing any Intellectual Property after the date hereof; provided, however, that the Borrower may, if commercially reasonable and in accordance with current practices, file or register any Intellectual Property prior to any such notice, provided that Borrower provides Collateral Agent with prompt notice after such filing;
(xi) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xii) notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) upon Borrower becoming aware of the existence of any commercial tort claim greater than Two Hundred Fifty Thousand Dollars ($250,000), notice of such commercial tort claim and of the general details thereof;
(xiv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xv) Upon Collateral Agent’s request, Borrower shall furnish to Collateral Agent a report, in form acceptable to Collateral Agent, reconciling the Royalties, Net Sales and all other revenue reported by Borrower to Collateral Agent during any reporting period to the Aggregate Revenue reported by Borrower hereunder for such period and the amount of Revenue-Based Payment(s) made by Borrower in connection with such period(s); and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) No later than thirty (30) days after the last day of each month, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lender, Borrower shall notify agrees to permit such Lender to communicate with Borrower’s accounting firm with respect to the Collateral Agent (which may be by email) each time any information is consolidated financial statements delivered by posting thereto;hereunder.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated balance sheet and consolidating income statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each quarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and sixty (y60) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as directors, security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)holders or holders of Subordinated Debt;
(vvi) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries (other than an Excluded Account), which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xi) written notice at least (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) change its legal name, (E) changing any organizational number (if any) assigned by its jurisdiction of organization, or (F) registering or filing any Intellectual Property;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim with an expected value in excess of Fifty Thousand Dollars ($50,000) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) upon Collateral Agent’s request, Borrower shall furnish to Collateral Agent a report, in form acceptable to Collateral Agent, reconciling the Royalties, Net Sales and all other revenue reported by Borrower to Collateral Agent during any reporting period to the Aggregate Revenue reported by Borrower hereunder for such period and the amount of Revenue-Based Payment(s) made by Borrower in connection with such period(s); and
(xvii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii) above but no later than forty five (45) days after the last day of each quarter, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lender, Borrower shall notify agrees to permit such Lender to communicate with Borrower’s accounting firm with respect to the Collateral Agent (which may be by email) each time any information is consolidated financial statements delivered by posting thereto;hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Imprimis Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Administrative Agent and each Lender:
(i) [reserved];
(ii) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthof Holdings’ first three fiscal quarters, a company-company prepared consolidated and, if prepared by Holdings, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Holdings and its consolidated Subsidiaries for such month fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral AgentRequired Lenders;
(iiiii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Holdings’ fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower Holdings and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on financial statements from an independent certified public accounting firm reasonably acceptable to the financial statementsRequired Lenders (it being understood that any accounting firm of national standing is reasonably acceptable to the Required Lenders);
(iiiiv) after approval thereof Upon a Lender’s reasonable request, Holdings’ annual financial projections for the entire current fiscal year as approved by Borxxxxx’x board the Board of directors, but no later than Directors; provided that such projections shall not be required to be delivered before the earlier of (x) ten (10) days’ after such approval and (y) each December March 15 of the immediately preceding such year, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; provided that, any revisions to such projections approved by Borxxxxx’x board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(ivv) within five (5) days of delivery, copies of all non-ministerial material statements, reports and notices made available generally to Borxxxxx’x Holdings’ security holders or holders of the Existing Notes (other than materials provided to members of the Borrower’s board Board of directors Directors solely in their capacities as security holder and other than materials holder); provided, however, the foregoing may be subject to such exclusions and redactions as Borrower deems reasonably necessary, in the exercise of their good faith judgment, in order to (i) preserve the confidentiality arrangements which preclude of highly sensitive information, (ii) prevent impairment of the Borrower to so deliver any such materials)attorney client privilege or (iii) avoid conflict of interest with Lenders for new financing;
(vvi) [reserved];
(vii) [reserved];
(viii) [reserved];
(ix) Upon a Lender’s request, prompt delivery (and in any event within five (5) days after such request) of filingcopies of all material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower on Form 10‑KGovernmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change, 10‑Q and 8‑K except to the extent filed with the Securities SEC;
(x) prompt notice of any event that (A) could reasonably be expected to materially and Exchange Commissionadversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice delivered at least ten (10) days’ prior to Holdings’ creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xii) written notice delivered at least twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations in the U.S., including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Holdings or any of its Subsidiaries or are contract manufacturing sites), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Xxxxxxxx’s proposal regarding how to cure such Event of Default or event;
(xiv) prompt notice if Holdings or such Subsidiary has Knowledge that Holdings, or any Subsidiary or Affiliate of Holdings, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Five Hundred Thousand Dollars ($500,000.00) and of the general details thereof;
(xvi) if Holdings or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement; provided that documents delivery of such updated Perfection Certificate shall only be required once every year, starting with the month ending December 31, 2023;
(xviii) prompt written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(xix) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Holdings or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Holdings or any of its Subsidiaries of Five Hundred Thousand Dollars ($500,000.00); and
(xx) other information as reasonably requested by any Lender. Notwithstanding the foregoing, (x) the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Holdings posts such documents are posted documents, or provides a link thereto, on Holdings’ website on the internet at wxx.xxx.xxxHoldings’ website address or filed with the SEC and (y) a Lender may designate an entity to receive information provided under this Section 6.2(a) (other than any information filed with the SEC); provided that Highbridge designates Administrative Agent as its designee as of the Effective Date and reserves the right to designate a third party subject to the confidentiality obligations herein to receive such information. In furtherance of the foregoing, and notwithstanding anything herein to the contrary, in no event shall the Administrative Agent (i) have any duties or obligations with respect to such designation other than to receive the information required to be delivered by the Borrower to Highbridge pursuant to this Section 6.2(a) on Highbridge’s behalf, (ii) be responsible or liable for monitoring delivery of such information by the Borrower or soliciting such information from the Borrower, (iii) be liable to Highbridge or any other Person with respect to such designation as its designee, including without limitation, for any violation of any securities or other laws or the receipt or non-receipt of non-public information by any Person or (iv) be charged with knowledge of any information contained in such deliverables received by it as designee for Highbridge. Highbridge hereby directs the Administrative Agent to not provide any information received by the Administrative Agent as Highbridge’s designee pursuant to this Section 6.2(a) to Highbridge unless directed in writing otherwise by Highbridge.
(b) Concurrently with the deliveries in Sections 6.2(a)(ii) and 6.2(a)(iii), deliver to each Lender a duly completed Compliance Certificate signed by a Responsible Officer;
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Holdings shall, and shall notify cause each of its Subsidiaries to, at the sole cost of Holdings, allow Administrative Agent, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
(d) Notwithstanding anything set forth above to the contrary, if any notice or Compliance Certificate required to be furnished pursuant to this Section 6.2 contains material non-public information (any such notice, a “MNPI Notice”), Borrower, instead of delivering such MNPI Notice to each Lender, shall promptly notify each Lender in writing or orally that Borrower desires to deliver an MNPI Notice. Within five (5) Business Days of receipt of such notification, each Lender may either (i) refuse the delivery of such MNPI Notice, in which case Borrower’s obligations under this Section 6.2 with respect to such MNPI Notice and such Lender shall be deemed satisfied, or (ii) enter into good faith negotiations with Borrower to agree the time period within which Borrower will make the material non-public information contained in such MNPI Notice publicly available by including such information in a filing with the SEC (provided that during the period of good faith negotiations, a Lender may direct Borrower to send such MNPI Notice to one of its advisors or agents, including without limitation, its attorneys, for review). If Borrower and such Lender agree on such time period, Borrower shall promptly deliver to such Lender such MNPI Notice and shall include the applicable material non-public information in a public filing with the SEC within such agreed to time period. The failure to agree on such time period will be by email) each time any information is delivered by posting thereto;deemed to satisfy Borrower’s obligations under this Section 6.2 with respect to such MNPI Notice and such Lender.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) (A) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated balance sheet and income statement and cash burn statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent and (B) as soon as available, but no later than forty-five (45) days after the last day of each quarter a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its Subsidiaries for such quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than ninety one hundred twenty (90120) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any board approved revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as directors, security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)holders or holders of Subordinated Debt;
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission; ;
(vi) prompt notice of any amendments of or other changes to the capitalization table of Borrower and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, provided that (x) Borrower shall cause such statements to be provided to Collateral Agent and each Lender by the applicable institution(s), by virtue of the inclusion of the same in any control agreement(s) delivered by such institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) prompt written notice upon Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred and Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim which could result in proceeds to the Borrower in excess of Two Hundred and Fifty Thousand Dollars ($250,000.00) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i)(A), deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) after the first Advance hereunder has been made, a Borrowing Base Certificate signed by a Responsible Officer, together with detailed aged listings by invoice date of accounts receivable and accounts payable; provided, however, such a Borrowing Base Certificate along with detailed aged listings by invoice date of accounts receivable and accounts payable shall also be delivered five (5) Business Days in advance of first Advance made hereunder;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Two Hundred and Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred and Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than once every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lender, but not more frequently than annually, unless an Event of Default has occurred and is continuing, Borrower shall notify the agrees to permit Collateral Agent or such Lender to communicate with Borrower’s accounting firm with respect to the consolidated financial statements delivered pursuant to this Section 6.2.
(which may be d) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i)(B), deliver to Collateral Agent and each Lender, an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by emailone or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender.
(e) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii), deliver to Bank a detailed listing of each time any information is delivered by posting thereto;Account Debtor and each such Account Debtor’s contact information
Appears in 1 contract
Samples: Loan and Security Agreement (Bionano Genomics, Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Xxxxxxxx’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) February 28 of each December 15 of the immediately preceding year, Borxxxxx’x Xxxxxxxx’s annual financial projections for the entire upcoming currentupcoming fiscal year as approved by Borxxxxx’x Xxxxxxxx’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Xxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Xxxxxxxx’s security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxxxxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to each Purchaser (and with respect to clauses (vii), (viii), (ix) and (xiii) below, also to the Collateral Agent and each Lender:Agent):
(i) no later than within ten (10) days upon a request by any Purchaser, with respect to any given month for which at least thirty (30) days after have elapsed since the last day of each such month, a company-company prepared consolidated balance sheet and sheet, income statement and cash flow statement, subject to year-end adjustments and the absence of footnotes, covering the Borrower consolidated operations of Issuer and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral AgentRequired Purchasers;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Issuer’s first three fiscal quarters, a company prepared consolidated and, if prepared by Issuer, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Issuer and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Required Purchasers;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Issuer’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower Issuer and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on financial statements from an independent certified public accounting firm reasonably acceptable to the financial statements;
Required Purchasers (iiiit being understood that any accounting firm of national standing is reasonably acceptable to the Required Purchasers) after approval thereof by Borxxxxx’x board of directors, but no later (other than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borxxxxx’x annual financial projections a qualification with respect to a going concern for the entire upcoming Company’s fiscal year as approved by Borxxxxx’x board of directors; provided thatended June 30, any revisions to such projections approved by Borxxxxx’x board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval2024);
(iv) within five (5) days of deliveryfiling, copies of all nonreports on Form 10-ministerial statementsK, reports 10-Q and notices made available to Borxxxxx’x security holders (other than materials provided to members of 8-K filed with the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)SEC;
(v) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower on Form 10‑K, 10‑Q Governmental Approvals material to Issuer’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(vi) prompt notice of any event that (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(vii) written notice delivered at least ten (10) days’ prior to Issuer’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10); ASIA-DOCS\12847562.6 DRAFT 076267-0001
(viii) written notice delivered at least twenty (20) days’ (or such shorter period of time as Required Purchasers may agree) prior to Issuer’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Million Dollars ($1,000,000) in assets or property of Issuer or any of its Subsidiaries or are contract manufacturing sites), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(ix) upon Issuer or any Guarantor becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Issuer’s proposal regarding how to cure such Event of Default or event;
(x) immediate notice if Issuer or such Subsidiary has Knowledge that Issuer, or any Subsidiary or Affiliate of Issuer, is a Blocked Person or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xi) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Issuer or any Guarantor, in each case in an amount greater than One Million Dollars ($1,000,000) and of the general details thereof;
(xii) if Issuer or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xiii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Closing Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement; provided that documents delivery of such updated Perfection Certificate shall only be required once every six (6) months, starting with the month ending December 31, 2022;
(xiv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Issuer or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Issuer or any of its Subsidiaries in an amount greater than One Million Dollars ($1,000,000); and
(xv) other information as reasonably requested by any Purchaser; provided, that Issuer and each Guarantor, and each of their respective Subsidiaries, as applicable, shall not be required to deliver any information to a Purchaser pursuant to subsections (v), (vi), (x), (xi), and (xiv) above unless a Purchaser has specifically requested the same in writing, in ASIA-DOCS\12847562.6 DRAFT 076267-0001 which case the Issuer and each Guarantor, and each of their respective Subsidiaries, as applicable, shall provide such information pursuant to this Section 6.2(a) unless and until such Purchaser withdraws such request by delivery of written notice to the applicable party; provided, further, that such Purchaser may withdraw its request by delivery of written notice to the applicable party at any time, including prior to delivery of any such information requested. Notwithstanding the foregoing, (x) the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which (A) Issuer posts such documents, or provides a link thereto, on Issuer’s website on the internet at Issuer’s website address or (B) such documents are posted filed of record with the SEC, and (y) a Purchaser may designate an entity to receive information provided under this Section 6.2(a) (other than any information filed with the SEC).Issuer will be deemed to comply with the delivery requirements of financial and other information pursuant to Sections 6.2(a)(ii) and (iii) by timely filing, within the time periods (including any extension thereof) specified in the SEC’s rules and regulations, its quarterly report on Form 10-Q and its annual report on Form 10-K for the corresponding period, as applicable, with the SEC via the SEC’s XXXXX system (or any successor thereto). Notwithstanding anything to the contrary herein, the Issuer or Guarantors shall not provide any information under this Section 6.2(a), if any Purchaser informs the Issuer in writing that it does not wish to receive such information.
(b) No later than forty-five (45) days after the last day of each month, deliver to each Purchaser a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Issuer shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Issuer, Collateral Agent or any Purchaser, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Restructuring Support Agreement (5E Advanced Materials, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth (commencing with June 2014), a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to a going-concern qualification based solely on the amount of cash and Cash Equivalents held by Borrower) on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding yearapproval, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days together with the delivery of deliverythe Compliance Certificate, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders (except as otherwise required to be delivered hereunder, other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and board members or management of the Borrower) or holders of Subordinated Debt (except as otherwise required to be delivered hereunder, other than materials subject provided to confidentiality arrangements which preclude members of the Borrower to so deliver any such materialsBorrower’s board of directors solely in their capacities as board members or management of the Borrower);
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days together with the delivery of filingthe Compliance Certificate, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) unless the IPO has occurred, together with the delivery of the Compliance Certificate, notice of any amendments (A) to the capitalization table of Borrower, and (B) to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments with respect thereto;
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice delivered at least ten (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(x) written notice delivered at least ten (10) days with respect to clause (A) and thirty (30) days with respect to clause (B) through (E) prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Hundred Fifty Thousand Dollars ($150,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xi) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xii) immediate notice if Borrower or such Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Fifty Thousand Dollars ($50,000.00) and of the general details thereof;
(xiv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes a Registered Organization, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xv) other information as reasonably requested by Collateral Agent. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of One Hundred Fifty Thousand Dollars ($150,000.00); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Fifty Thousand Dollars ($50,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
(d) Semi-annually, on or before the last Business Day of January and July of each year (commencing with January 2015), deliver to Collateral Agent (which may be by email) each time an updated Perfection Certificate and Disclosure Schedules to reflect any amendments, modifications and updates, if any, to certain information is delivered by posting thereto;in the Perfection Certificate and Disclosure Schedule.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Xxxxxxxx’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borxxxxx’x Xxxxxxxx’s annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x Xxxxxxxx’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Xxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Xxxxxxxx’s security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxxxxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;
(vi) prompt notice (and in any event within five (5) Business Days) of any amendments of or other changes to the respective Operating Documents of Borrower or any of the Guarantors, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or any Guarantor, which statements may be provided to Collateral Agent and each Lender by any Loan Party or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice (and in any event, with respect to clause (A), within five (5) Business Days) of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days’ (or such shorter period agreed to by the Collateral Agent) prior to any Loan Party’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xi) written notice delivered at least thirty (30) days’ (or such shorter period agreed to by the Collateral Agent) prior to Borrower’s or any Guarantor’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower or any of the Guarantors), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon any Loan Party becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Xxxxxxxx’s proposal regarding how to cure such Event of Default or event;
(xiii) prompt (and in any event within three (3) Business Days) notice if Borrower or any Subsidiary of Borrower has Knowledge that Borrower, or any Subsidiary or controlled Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) concurrently with the delivery of any updated Perfection Certificate pursuant to Section 6.2(c), written notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor and not previously disclosed to the Collateral Agent, in each case in an amount greater than One Hundred and Fifty Thousand Dollars ($150,000.00), and of the general details thereof;
(xv) if Borrower or any Guarantor is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) prompt (and in any event within three (3) Business Days) delivery of copies of any Material Agreement or any material amendment to, material modification of, termination of or material waiver under any Material Agreement;
(xvii) written notice delivered within ten (10) days of any Key Person ceasing to be actively engaged in the management of Xxxxxxxx;
(xviii) prompt (and in any event within 10 days) written notice of any litigation or governmental proceedings pending or, to the knowledge of the Responsible Officers, threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00);
(xix) prompt (and in any event within 10 days) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Six Hundred Thousand Dollars ($600,000.00) individually or in the aggregate in any calendar year; and
(xx) other information relating to the Borrower and its Subsidiaries as reasonably requested by Collateral Agent or any Lender; provided, that neither the Borrower nor any of its Subsidiaries will, pursuant to this Section 6.2(a)(xx) or Sections 6.2(d) or 6.8, be required to disclose or permit the inspection or discussion of, any document, information or other matter (A) except to the extent reasonably necessary in order to realize upon any of the Collateral as part of an exercise of remedies under this Agreement or the other Loan Documents following the occurrence and during the continuance of an Event of Default, information constituting material trade secrets to the extent not materially relevant to the credit analysis of the Borrower and its Subsidiaries and to the extent the disclosure of such trade secrets would be materially harmful to the business of the Borrower and its Subsidiaries, or (B) that is subject to attorney-client privilege (or similar legally-recognized privilege that would be lost by virtue of such disclosure to the Collateral Agent and Lenders) or constitutes attorney work product.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries during such month; and
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8(a) during such month.
(c) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above for March, June, September and December but no later than thirty (30) days after the last day of each such month, deliver to the Collateral Agent an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to in the information set forth in the Perfection Certificate after the Effective Date.
(d) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderCitibank:
(i) no later than thirty the date that is forty five (3045) days after the last day of each monthof the Borrower’s fiscal quarters (other than the last fiscal quarter of each fiscal year) or, if the Borrower has received an extension for the filing of the same from the SEC, on such later date as such information is filed with the SEC (but in any event no later than sixty (60) days after the last day of each of the Borrower’s fiscal quarters (other than the last fiscal quarter of each fiscal year)), a company-prepared consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income statement and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, and, if prepared by the Borrower, consolidating balance sheet (accompanied by A/R and A/P agings for each Loan Party), statements of income and cash flows covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month fiscal quarter, certified by a Responsible Officer and in a form reasonably acceptable to the Collateral AgentCitibank;
(ii) as soon as available, but no later than the date that is ninety (90) days after the last day of Borxxxxx’x the Borrower’s fiscal year or within five (5) days of or, if the Borrower has received an extension for the filing of the same from the SEC, on such later date as such information is filed with the SECSEC (but in any event no later than 105 days after the last day of each fiscal year of the Borrower), audited consolidated financial statements covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such fiscal yearyear (accompanied by A/R and A/P agings for each Loan Party), prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Citibank in its reasonable discretion;
(iii) after approval thereof by Borxxxxx’x board of directorsas soon as available, but no and in any event not later than 30 days after the earlier first day of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding fiscal year, Borxxxxx’x annual financial projections for the entire upcoming Borrower and its Subsidiaries for such fiscal year as approved by Borxxxxx’x presented to the Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x presented the Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders Citibank no later than seven (7) days after such approvalpresentation;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x the Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) in the event that the Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, on the date such information is filed with the SEC, all reports on Form 10‑K, 10‑Q and 8‑K; SF\5875461.15
(vi) prompt notice of any amendments of or other changes to the capitalization table of the Borrower and to the respective Operating Documents of any Loan Party, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account holding more than One Million Dollars ($1,000,000) maintained by any Loan Party at a bank or institution other than Citibank, which statements may be provided to Citibank by such Loan Party or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower on Form 10‑KGovernmental Approvals material to the Loan Parties’ business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (i) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (ii) could reasonably be expected to have a Material Adverse Change;
(x) written notice delivered at least (10) days’ prior to any Loan Party’s creation or acquisition of a Subsidiary;
(xi) written notice delivered at least thirty (30) days prior to any Loan Party (1) changing its respective jurisdiction of organization, 10‑Q and 8‑K filed (2) changing its organizational type, (3) changing its respective legal name, or (4) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon any Loan Party becoming aware of the existence of any Event of Default or event which, with the Securities giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and such Loan Party’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if any Loan Party or any Subsidiary has knowledge that such Loan Party, such Subsidiary or Affiliate of such Loan Party or Subsidiary, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (iv) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) if any Loan Party is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; SF\5875461.15
(xv) concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii) above, an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain of the information therein after the Effective Date; and
(xvi) other information as reasonably requested by Citibank.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) and 6.2(a)(ii) above, deliver to Citibank:
(i) a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower;
(ii) updated Disclosure Schedules to reflect any amendments, modifications and updates, if any, to certain information in the Disclosure Schedules after the Effective Date;
(iii) copies of any material Governmental Approvals obtained by any Loan Party or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against any Loan Party or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to any Loan Party or any of its Subsidiaries of Five Hundred Thousand Dollars ($500,000);
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000) individually or in the aggregate in any calendar year;
(vii) a list of any new offices or business locations of the Loan Parties including warehouses (unless such new offices or business locations or warehouses contain less than One Million Dollars ($1,000,000) in assets or property of any Loan Party); and
(viii) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by any Loan Party, in each case in an amount greater than Five Hundred Thousand Dollars ($500,000) and of the general details thereof.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Each Loan Party shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of such Loan Party, Citibank, during regular business hours upon not less than three (3) Business Days prior notice (provided that documents no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. 33 SF\5875461.15
(d) Documents required to be delivered pursuant to this Section 6.2(a)(v6.2(a)(i), (ii) or (v) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which the Borrower posts such documents are posted at wxx.xxx.xxxdocuments, or provides a link thereto on the Borrower’s website on the Internet; provided that the Borrower shall notify Citibank (by facsimile or electronic mail) of the Collateral Agent posting of any such documents and provide to Citibank by electronic mail electronic versions (which may be by emaili.e., soft copies) each time any information is delivered by posting thereto;of such documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Global Eagle Entertainment Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth that is not a quarter-end, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement, in each case subject to year-end adjustments and the absence of footnotes, covering the consolidated operations of Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter, a company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement, in each case subject to year-end adjustments and the absence of footnotes, covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to a going concern limitation based solely on the amount of cash and Cash Equivalents held by Borrower) on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iiiiv) no later than sixty (60) days after approval thereof by Borxxxxx’x board the last day of directorsBorrower’s fiscal year, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 thereof by the Borrower’s board of the immediately preceding yeardirectors, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days together with the delivery of deliverythe Compliance Certificate, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (except as otherwise required to be delivered hereunder, other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and board members or management of Borrower) or holders of Subordinated Debt (except as otherwise required to be delivered hereunder, other than materials subject provided to confidentiality arrangements which preclude the Borrower to so deliver any such materialsmembers of Borrower’s board of directors solely in their capacities as board members or management of Borrower);
(vvi) with each Compliance Certificate, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower on Form 10‑K, 10‑Q Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice delivered at least five (5) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10;
(x) written notice delivered at least twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xi) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xii) immediate notice if Borrower or such Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) together with the delivery of the Compliance Certificate, notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000) and of the general details thereof;
(xiv) if Borrower has any Subsidiaries any of which is not a Registered Organization upon formation thereof but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xv) no later than 45 days after the end of each fiscal quarter an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date; provided that and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the terms herein, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to going concern based solely on the amount of cash and cash equivalents held by Borrower) on the financial statementsstatements from Deloitte & Touche LLP or another independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding yearapproval, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders (other than materials provided to members or holders of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)Subordinated Debt;
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission; provided that documents . Documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the Internet at wxx.xxx.xxxBorrower’s website address; provided that the provided, however, Borrower shall promptly notify the Collateral Agent Bank in writing (which may be by emailelectronic mail) of the posting of any such documents;
(vi) prompt notice of any amendments of or other changes to the capitalization table of Borrower and to the respective Operating Documents of Borrower or any of its Subsidiaries, in each time case together with any information is delivered by posting copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xi) written notice at least ten (10) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless each such new office or business location contains less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; and
(xvi) other information relating to Borrower or its Subsidiaries as reasonably requested by Collateral Agent.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) [Reserved];
(iii) [Reserved];
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000.00)individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthquarter, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent (it being agreed and understood that Borrower may provide separate financial statements required by this clause (i) (but not including expenses) for the Collateral Agentfirst two quarters after the Effective Date for the Oncotype DX GPS business and that for such first two quarters after the Effective Date, they may not be included in Borrower’s consolidated financials);
(ii) as soon as available, but no later than ninety one hundred twenty (90120) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAPIFRS, consistently applied, together with an Unqualified Opinion unqualified opinion (except for a going concern qualification) on the such financial statementsstatements from an independent certified public accounting firm of a well-established international reputation;
(iii) as soon as available after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Xxxxxxxx’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Xxxxxxxx’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the BorrowerXxxxxxxx’s board of directors solely in their capacities as directors, security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)holders or holders of Subordinated Debt;
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K (or Form 20 K), 10‑Q 10 Q and 8‑K 8 K (or Form 6 K) filed with the (or similar reports filed with the Securities and Exchange Commission);
(vi) notice (at the end of the applicable quarter) of any amendments of or other changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each quarter (or month if an Event of Default has occurred and is continuing), copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Xxxxxxxx’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice at least (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim of Borrower in excess of Three Hundred Thousand Dollars ($300,000) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and (xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each quarter, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer (if such month is the last month of the quarter);
(ii) an updated Perfection Certificate, on a quarterly basis, to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs (to be awarded against Borrower or any of its Subsidiaries) to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00); and (vi) written notice of all returns, recoveries, disputes and claims regarding Inventory or services that involve more than Five Hundred Thousand Dollars ($500,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with applicable law and IFRS in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that the Borrower no notice shall notify be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral Agent (which provided, however, access to highly confidential proprietary information of Borrower or any of its Subsidiaries may not be by emailprovided unless such information relates to the occurrence of Event of Default under this Agreement). Such audits shall be conducted no more often than once every year unless (and more frequently if) each time an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any information is Xxxxxx, Xxxxxxxx agrees to permit such Xxxxxx to communicate with Xxxxxxxx’s accounting firm (in the presence of a representative of the Borrower) with respect to the consolidated financial statements delivered by posting thereto;pursuant to this Section 6.2.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by any Loan Party or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Loan Parties and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s first three fiscal quarters, a company prepared consolidated and, if prepared by the Loan Parties or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of the Loan Parties and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower the Loan Parties and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x each Loan Party’s board of directorsdirectors (or similar governing body), but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x each Loan Party’s board of directorsdirectors (or similar governing body); provided that, any revisions to such projections approved by Borxxxxx’x any Loan Party’s board of directors (or similar governing body) shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(ivv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x any Loan Party’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrowerany Loan Party’s board of directors (or similar governing body) solely in their capacities as security holder and other than materials or holders of Subordinated Debt), provided, however, the foregoing may be subject to such exclusions and redactions as Borrower deems reasonably necessary, in the exercise of its good faith judgment, in order to (i) preserve the confidentiality arrangements which preclude of highly sensitive information, (ii) prevent impairment of the Borrower to so deliver any such materials)attorney-client privilege or (iii) conflict of interest with Lenders for new financings;
(vvi) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by each Loan Party or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by each Loan Party or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least (10) days’ prior to any Loan Party’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice delivered at least (30) days’ prior to any Loan Party’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Million Dollars ($1,000,000) in assets or property of any Loan Party or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon any Loan Party becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and such Loan Party’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if any Loan Party or its Subsidiary has Knowledge that any Loan Party, or any Subsidiary or Affiliate of any Loan Party, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by any Loan Party or any Guarantor, in each case in an amount greater than Two Hundred Fifty Thousand Dollars ($250,000) and of the general details thereof;
(xv) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that documents and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) with respect the delivery of financial statements pursuant to Section 6.2(a)(ii) and within ninety (90) days after the last day of each of Borrower’s last fiscal quarter of each year, an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this agreement;
(iii) copies of any material Governmental Approvals obtained by any Loan Party or any of its Subsidiaries not otherwise filed with the Securities and Exchange Commission;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against any Loan Party or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to such Loan Party or any of its Subsidiaries of One Million Dollars ($1,000,000), in the aggregate; and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000), individually, or One Million Dollars ($1,000,000), in the aggregate, in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Each Loan Party shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of such Loan Party, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated consolidated, and if prepared by Borrower, consolidating balance sheet and sheet, income statement and cash flow statement, subject to year-end adjustments and the absence of footnotes, covering the consolidated operations of Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety the earlier of (90x) one hundred eighty (180) days after the last day of Borxxxxx’x Borrower’s fiscal year or (y) within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) days Business Days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission;
(vi) prompt notice of any non-ministerial amendments of or other changes to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xi) written notice delivered at twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its corporate organizational type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within five (5) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xv) written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) promptly within five (5) Business Days notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement;
(xvii) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Thousand Dollars ($200,000.00);
(xviii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section Sections 6.2(a)(i), 6.2(a)(ii), 6.2(a)(v) (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxx; Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer;
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable 48 hour prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each month, a company-company prepared consolidated balance sheet and sheet, income statement and cash flow statement, subject to year-end adjustments and the absence of footnotes, covering the consolidated operations of Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s first three fiscal quarters, a company prepared consolidated and, if prepared by Borrower, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 March 1 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days of delivery, copies of all non-ministerial material statements, reports and notices made available generally to Borxxxxx’x Borrower’s security holders or holders of the 2018 Notes or the 2019 Notes and/or Permitted Convertible Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials holder); provided, however, the foregoing may be subject to such exclusions and redactions as Borrower deems reasonably necessary, in the exercise of its good faith judgment, in order to (i) preserve the confidentiality arrangements which preclude of highly sensitive information, (ii) prevent impairment of the Borrower to so deliver any such materials)attorney client privilege or (iii) conflict of interest with Lenders for new financing;
(vvi) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) [reserved];
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice delivered at least ten (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xii) written notice delivered at least twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) or such location involves a contract manufacturer) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiv) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Five Hundred Thousand Dollars ($500,000.00) and of the general details thereof;
(xvi) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement; provided that documents delivery of such updated Perfection Certificate shall only be required once every six (6) months, starting with the month ending December 31, 2019; and
(xviii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxx; Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than forty-five (45) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iii) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Five Hundred Thousand Dollars ($500,000.00).
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Senseonics Holdings, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than ninety forty-five (9045) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing each month, copies of the same with month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the SEC, audited consolidated financial statements covering applicable institution(s); (iv) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the consolidated operations of Borrower Borrower’s Intellectual Property and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiB) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of could reasonably be expected to result in a Material Adverse Change; (xv) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary in accordance with the terms of Section 6.10; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, (D) changing any organizational number (if any) assigned by its jurisdiction of organization, or (E) registering or filing any Intellectual Property; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower or any Guarantor and of the general details thereof; (ix) other information as reasonably requested by Collateral Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Fifty Thousand Dollars ($50,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Fifty Thousand Dollars ($50,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP and in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders Collateral. Such audits shall be conducted no later more often than seven twice every year unless (7and more frequently if) days after an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Xxxxxx, Xxxxxxxx agrees to permit such approval;
(iv) within five (5) days Xxxxxx to communicate with Xxxxxxxx’s accounting firm, in the presence of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports a Responsible Officer of the Borrower on Form 10‑Kor the Parent, 10‑Q and 8‑K filed with respect to the Securities and Exchange Commission; provided that documents required to be consolidated financial statements delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;6.2.
Appears in 1 contract
Samples: Business Loan and Security Agreement (Super League Enterprise, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthfiscal month (other than the last fiscal month of any fiscal quarter) of Borrower, a company-company prepared summary consolidated balance sheet and income statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such fiscal month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter or, if earlier, within five (5) days of filing its quarterly report on Form 10-Q with the Securities and Exchange Commission, a company prepared consolidated balance sheet, income statement, statement of operations and cash flow statement covering the consolidated operations of Borrower and its Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent (the form thereof delivered to Collateral Agent prior to the Original Effective Date being acceptable to Collateral Agent);
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from EisnerAmper LLP or such other independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Bxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and sixty (y60) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Bxxxxxxx’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any board approved revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(ivv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the BorrowerBxxxxxxx’s board of directors solely directors, security holders generally or holders of Subordinated Debt; provided, notwithstanding anything set forth in their capacities as security holder and other than materials subject this Section 6.2(a)(v), Borrower shall not be required to confidentiality arrangements which preclude the Borrower to so deliver any such materials)statements, reports or notices (i) if Borrower determines in good faith and upon the advice of counsel that the receipt of such materials by Collateral Agent or the Lenders would jeopardize the attorney-client privilege between Borrower and its counsel, or any Subsidiary of Borrower and its counsel, (ii) if and to the extent necessary, to protect highly confidential proprietary information of Borrower or any of its Subsidiaries or (iii) if information that is being disclosed in such materials relate to Borrower or Subsidiary’s strategy, negotiating positions or similar matters relating to Collateral Agent or the Lenders;
(vvi) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K, 10‑Q 10 Q and 8‑K 8 K filed with the Securities and Exchange Commission;
(vii) prompt notice of any amendments of or other changes to the Operating Documents of Borrower or any of its Subsidiaries (other than the Indian Subsidiary), together with any copies reflecting such amendments or changes with respect thereto;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice at least (10) days prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xii) written notice at least fifteen (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Three Hundred Fifty Thousand Dollars ($350,000.00) of book value in assets or property of Borrower), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xiii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiv) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xv) notice of any commercial tort claim in excess of $100,000 (other than unasserted commercial tort claims) and of the general details thereof;
(xvi) [reserved]; provided that and
(xvii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii) above but no later than forty-five (45) days after the last day of each fiscal quarter, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00) (not paid or covered by independent third party insurance);
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year;
(vi) an updated Perfection Certificate to reflect any amendments, modifications and updates to information set forth in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender; and
(vii) to the extent not included in the materials provided with the updated Perfection Certificate provided pursuant to Section 6.2(b)(vi) above, a written notice of any registrations or applications for Intellectual Property, to the extent not previously disclosed to Collateral Agent and Lenders.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing, provided that unless an Event of Default has occurred and is continuing, only one such audit in any year shall be at the cost of Borrower. Notwithstanding the foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such Lxxxxx to communicate with Bxxxxxxx’s accounting firm with respect to the consolidated financial statements delivered pursuant to this Section 6.2, provided such communication shall be in the presence of an authorized representative of Borrower, and provided further than the inability of Borrower to provide access to such accounting firm when requested by such lender shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;not constitute an Event of Default hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Rockwell Medical, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthfiscal month (other than the last fiscal month of any fiscal quarter) of Borrower, a company-company prepared summary consolidated balance sheet and income statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such fiscal month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter or, if earlier, within five (5) days of filing its quarterly report on Form 10-Q with the Securities and Exchange Commission, a company prepared consolidated balance sheet, income statement, statement of operations and cash flow statement covering the consolidated operations of Borrower and its Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent (the form thereof delivered to Collateral Agent prior to the Effective Date being acceptable to Collateral Agent);
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from Xxxxxx LLP or such other independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion; provided, however, the auditor’s opinion on the financial statements for fiscal year ending December 31, 2019 may identify material weaknesses related to deficiencies in Borrower’s information technology general controls that have been previously identified in the audit for the financial statements for fiscal year ending December 31, 2018 but shall not identify any more material weaknesses nor have any qualifications with respect to going concern;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and sixty (y60) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any board approved revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely directors, security holders generally or holders of Subordinated Debt; provided, notwithstanding anything set forth in their capacities as security holder and other than materials subject this Section 6.2(a)(v), Borrower shall not be required to confidentiality arrangements which preclude the Borrower to so deliver any such materials)statements, reports or notices (i) if Borrower determines in good faith and upon the advice of counsel that the receipt of such materials by Collateral Agent or the Lenders would jeopardize the attorney-client privilege between Borrower and its counsel, or any Subsidiary of Borrower and its counsel, (ii) if and to the extent necessary, to protect highly confidential proprietary information of Borrower or any of its Subsidiaries or (iii) if information that is being disclosed in such materials relate to Borrower or Subsidiary’s strategy, negotiating positions or similar matters relating to Collateral Agent or the Lenders;
(vvi) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K, 10‑Q 10 Q and 8‑K 8 K filed with the Securities and Exchange Commission;
(vii) prompt notice of any amendments of or other changes to the Operating Documents of Borrower or any of its Subsidiaries (other than the Indian Subsidiary), together with any copies reflecting such amendments or changes with respect thereto;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice at least (10) days prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xii) written notice at least fifteen (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Three Hundred Fifty Thousand Dollars ($350,000.00) of book value in assets or property of Borrower), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xiii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiv) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xv) notice of any commercial tort claim in excess of $100,000 (other than unasserted commercial tort claims) and of the general details thereof;
(xvi) [reserved]; provided that and
(xvii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii) above but no later than forty-five (45) days after the last day of each fiscal quarter, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than One Hundred Thousand Dollars ($500,000.00) (not paid or covered by independent third party insurance);
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year;
(vi) an updated Perfection Certificate to reflect any amendments, modifications and updates to information set forth in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender; and
(vii) to the extent not included in the materials provided with the updated Perfection Certificate provided pursuant to Section 6.2(b)(vi) above, a written notice of any registrations or applications for Intellectual Property, to the extent not previously disclosed to Collateral Agent and Lenders.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing, provided that unless an Event of Default has occurred and is continuing, only one such audit in any year shall be at the cost of Borrower. Notwithstanding the foregoing, upon request of any Lender, Borrower agrees to permit such Lender to communicate with Borrower’s accounting firm with respect to the consolidated financial statements delivered pursuant to this Section 6.2, provided such communication shall notify be in the Collateral Agent (which may be presence of an authorized representative of Borrower, and provided further than the inability of Borrower to provide access to such accounting firm when requested by email) each time any information is delivered by posting thereto;such lender shall not constitute an Event of Default hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Rockwell Medical, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s fiscal quarters, a company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(vvi) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) [reserved];
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice delivered at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xii) written notice delivered at least (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred and Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiv) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Two Hundred and Fifty Thousand Dollars ($250,000.00) and of the general details thereof;
(xvi) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvii) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that documents and
(xviii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically (including via the SEC’s XXXXX website) and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month (or, in the case of (ii) below, no later than thirty (30) days after the last day of each fiscal quarter), deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred and Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred and Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than ninety thirty (9030) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing each month, copies of the same with month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the SEC, audited consolidated financial statements covering applicable institution(s); (iv) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the consolidated operations of Borrower Borrower’s Intellectual Property and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiB) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of could reasonably be expected to result in a Material Adverse Change; (xv) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary in accordance with the terms of Section 6.10; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, (D) changing any organizational number (if any) assigned by its jurisdiction of organization, or (E) registering or filing any Intellectual Property; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower or any Guarantor and of the general details thereof; (ix) other information as reasonably requested by Collateral Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Fifty Thousand Dollars ($50,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Fifty Thousand Dollars ($50,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP and in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders Collateral. Such audits shall be conducted no later more often than seven twice every year unless (7and more frequently if) days after an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such approval;
(iv) within five (5) days Lxxxxx to communicate with Bxxxxxxx’s accounting firm, in the presence of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports a. Responsible Officer of the Borrower on Form 10‑Kor the Parent, 10‑Q and 8‑K filed with respect to the Securities and Exchange Commission; provided that documents required to be consolidated financial statements delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;6.2.
Appears in 1 contract
Samples: Business Loan, Guaranty, and Security Agreement (Amphitrite Digital Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) no later than thirty (30) days after the last day of each month, a company-prepared consolidated balance sheet and income statement of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) February 28 of each December 15 of the immediately preceding year, Borxxxxx’x Xxxxxxxx’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Xxxxxxxx’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Xxxxxxxx’s security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission; provided that documents required to be delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxxxxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;
(vi) prompt notice (and in any event within five (5) Business Days) of any amendments of or other changes to the respective Operating Documents of Borrower or any of the Guarantors, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or any Guarantor, which statements may be provided to Collateral Agent and each Lender by any Loan Party or directly from the applicable institution(s); 118773011_2
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to any Loan Party’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice (and in any event, with respect to clause (A), within five (5) Business Days) of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days’ (or such shorter period agreed to by the Collateral Agent) prior to any Loan Party’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xi) written notice delivered at least thirty (30) days’ (or such shorter period agreed to by the Collateral Agent) prior to Borrower’s or any Guarantor’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower or any of the Guarantors), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon any Loan Party becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Xxxxxxxx’s proposal regarding how to cure such Event of Default or event;
(xiii) prompt (and in any event within three (3) Business Days) notice if Borrower or any Subsidiary of Borrower has Knowledge that Borrower, or any Subsidiary or controlled Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) concurrently with the delivery of any updated Perfection Certificate pursuant to Section 6.2(c), written notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor and not previously disclosed to the Collateral Agent, in each case in an amount greater than One Hundred and Fifty Thousand Dollars ($150,000.00), and of the general details thereof;
(xv) if Borrower or any Guarantor is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) prompt (and in any event within three (3) Business Days) delivery of copies of any Material Agreement or any material amendment to, material modification of, termination of or material waiver under any Material Agreement;
(xvii) written notice delivered within ten (10) days of any Key Person ceasing to be actively engaged in the management of Xxxxxxxx;
(xviii) prompt (and in any event within 10 days) written notice of any litigation or governmental proceedings pending or, to the knowledge of the Responsible Officers, threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Five Hundred Thousand Dollars ($500,000.00); 26 118773011_2
(xix) prompt (and in any event within 10 days) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Six Hundred Thousand Dollars ($600,000.00) individually or in the aggregate in any calendar year; and
(xx) other information relating to the Borrower and its Subsidiaries as reasonably requested by Collateral Agent or any Lender; provided, that neither the Borrower nor any of its Subsidiaries will, pursuant to this Section 6.2(a)(xx) or Sections 6.2(d) or 6.8, be required to disclose or permit the inspection or discussion of, any document, information or other matter (A) except to the extent reasonably necessary in order to realize upon any of the Collateral as part of an exercise of remedies under this Agreement or the other Loan Documents following the occurrence and during the continuance of an Event of Default, information constituting material trade secrets to the extent not materially relevant to the credit analysis of the Borrower and its Subsidiaries and to the extent the disclosure of such trade secrets would be materially harmful to the business of the Borrower and its Subsidiaries, or (B) that is subject to attorney-client privilege (or similar legally-recognized privilege that would be lost by virtue of such disclosure to the Collateral Agent and Lenders) or constitutes attorney work product.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries during such month; and
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8(a) during such month.
(c) Concurrently with the delivery of the financial statements specified in Section 6.2(a) above for March, June, September and December but no later than thirty (30) days after the last day of each such month, deliver to the Collateral Agent an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to in the information set forth in the Perfection Certificate after the Effective Date.
(d) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth (except for forty five (45) days after the last day of the final month of each quarter), a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) within forty-five (45) days following the end of each December 15 of the immediately preceding fiscal year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) days after such approval);
(iv) within five (5) days Business Days of delivery, copies of all non-ministerial statements, reports and notices made generally available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude or holders of Subordinated Debt) (provided that the Borrower is not required to so deliver disclose any such materialsinformation covered by attorney client privilege or that would violate confidentiality obligations or applicable law);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) together with the Compliance Certificate delivered for the period ending as of the last day of each fiscal quarter, (x) notice of any non-ministerial amendments of or other changes to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case, together with any copies reflecting such amendments or changes with respect thereto; and (y) a supplement to the Perfection Certificate to reflect any amendments, modifications and updates, if any, to the Perfection Certificate after the Effective Date;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) Business Days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice delivered at least (10) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in Collateral of Borrower or any of its Subsidiaries) (other than Moveable Collateral), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) (xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or controlled Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; and
(xvii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address; provided that the provided, however, Borrower shall promptly notify the Collateral Agent each Lender in writing (which may be by emailelectronic mail) of the posting of any such documents.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each time month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any information material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, any proceedings contesting taxes or other assessments as contemplated by Section 6.4 hereof;
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects except, in the case of unaudited financial statements, for the absence of footnotes and subject to year-end audit adjustments as to the interim financial statements. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is delivered by posting thereto;continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Tetraphase Pharmaceuticals Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet sheet, and income statement statement, subject to quarter- and year-end adjustments and the absence of footnotes, covering the consolidated operations of Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s fiscal quarters, a company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days together with the delivery of deliverythe Compliance Certificate, copies of all non-ministerial material statements, reports and notices made available generally to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials holder, holders of Subordinated Debt, board members or management of Borrower); provided, however, the foregoing may be subject to such exclusions and redactions as Borrower deems reasonably necessary, in the exercise of its good faith judgment, in order to (i) preserve the confidentiality arrangements which preclude of highly sensitive information, (ii) prevent impairment of the Borrower to so deliver any such materials)attorney client privilege or (iii) conflict of interest with Lenders for new financing;
(vvi) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) prompt notice of any amendments of or other changes to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) [Reserved];
(x) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(xi) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xii) written notice delivered at least five (5) Business Days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xiii) written notice delivered at least twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property 28 of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiv) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xv) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xvi) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Five Hundred Thousand Dollars ($500,000.00) and of the general details thereof;
(xvii) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xviii) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that documents and
(xix) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the materials required to be delivered pursuant to this Section 6.2(a)(vclauses (ii), (iii), (vi) and (xviii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of One Million Dollars ($1,000,000.00); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than One Million Dollars ($1,000,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Arcutis Biotherapeutics, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to a going-concern qualification based solely on the amount of cash and Cash Equivalents held by Borrower) on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval approval, and (y) each December 15 forty-five (45) days after year-end of the immediately preceding prior fiscal year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made generally available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsdirectors);
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) for so long as the Company is not subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account and Excluded Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that, to Borrower’s Knowledge (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice delivered at least ten (10) days prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Default or Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which notice shall include a reasonably detailed description of such Default or Event of Default, and Borrower’s proposal regarding how to cure such Default or Event of Default;
(xiii) immediate notice if Borrower or any Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Fifty Thousand Dollars ($50,000.00);
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) no later than thirty (30) days after the last day of each fiscal quarter, an updated Perfection Certificate and Disclosure Schedules to reflect any amendments, modifications and updates, if any, to the information in the Perfection Certificate and Disclosure Schedules after the Effective Date; provided that and
(xvii) other information as reasonably requested by Collateral Agent. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than One Hundred Fifty Thousand Dollars ($150,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice in any calendar year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Cardiva Medical, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth of Borrower, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Bxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Bxxxxxxx’s board of directors; provided that, any board approved revisions to such projections and/or budget approved by Borxxxxx’x Bxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all material non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely directors, security holders or holders of Subordinated Debt; provided, notwithstanding anything set forth in their capacities as security holder and other than materials subject this Section 6.2(a)(iv), Borrower shall not be required to confidentiality arrangements which preclude the Borrower to so deliver any such materials)statements, reports or notices (i) if Borrower determines in good faith and upon the advice of counsel that the receipt of such materials by Collateral Agent or the Lenders would jeopardize the attorney-client privilege between Borrower and its counsel, or any Subsidiary of Borrower and its counsel, (ii) if and to the extent necessary, to protect highly confidential proprietary information of Borrower or any of its Subsidiaries or (iii) if information that is being disclosed in such materials relate to Borrower or Subsidiary’s strategy, negotiating positions or similar matters relating to Collateral Agent or the Lenders;
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K, 10‑Q 10 Q and 8‑K 8 K filed with the Securities and Exchange Commission;
(vi) prompt notice of any amendments of or other changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Bxxxxxxx’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice at least (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Three Hundred Thousand Dollars ($300,000.00) of book value in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim in excess of $100,000 (other than unasserted commercial tort claims) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) if such months is the last month of the quarter, an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent and each Lender;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Two Hundred Fifty Thousand Dollars ($250,000.00) not paid or covered by independent third party insurance; and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Thousand Dollars ($200,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify be conducted no more often than once every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the Collateral Agent (which may foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such Lxxxxx to communicate with Bxxxxxxx’s accounting firm with respect to the consolidated financial statements delivered pursuant to this Section 6.2, provided such communication shall be by email) each time any information is delivered by posting thereto;in the presence of an authorized representative of Borrower.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) (A) as soon as available, but no later than thirty (30) days after the last day of each month, a companycompany prepared summary monthly financial statements covering the consolidated operations of Borrower and its Subsidiaries for such month and (B) as soon as available, but no later than forty-five (45) days after the last day of each quarter a company prepared consolidated and consolidating balance sheet and income statement and consolidated cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) as soon as available, but no later than ninety one hundred twenty (90120) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statements;
statements from Xxxxx Xxxxxxxx or another independent certified public accounting firm reasonably acceptable to Collateral Agent; (iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and sixty (y60) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) days after such approval;
); (iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders (other than materials provided to members or holders of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
Subordinated Debt; (v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K, 10‑Q 10 Q and 8‑K 8 K filed with the Securities and Exchange Commission; (vi) prompt notice of any amendments of or other changes to the Operating Documents of Borrower or any of its together with any copies reflecting such amendments or changes with respect thereto; (vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s); (viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that documents required to could reasonably be delivered pursuant to this Section 6.2(a)(v) shall be deemed expected to have been delivered a material adverse effect on any of the date on which such documents are posted Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change; (ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change; (x) written notice at wxx.xxx.xxx; provided that least ten (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting theretoterms of Section 6.10;
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month (other than month ending December 31, which shall be no later than forty-five (45) days after such month-end), a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual budget and financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any material revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders generally or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, a report setting out Product Revenue for such month, calculated on a trailing twelve (12) month basis;
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xi) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xiv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; and
(xv) other information as reasonably requested by Collateral Agent or any Lender.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) prompt written notice of any changes to the beneficial ownership information set out in Section 14 of the Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers
(vii) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that documents required to be delivered pursuant to this Section 6.2(a)(v) no notice shall be deemed required when an Event of Default has occurred and is continuing), to have been delivered on visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (scPharmaceuticals Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual budget and financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any material revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders generally or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice delivered at least (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(x) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xi) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xii) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xiii) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; and
(xiv) other information as reasonably requested by Collateral Agent or any Lender.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that documents required to be delivered pursuant to this Section 6.2(a)(v) no notice shall be deemed required when an Event of Default has occurred and is continuing), to have been delivered on visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (scPharmaceuticals Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Administrative Agent and each Lender:
(i) as soon as available, but in any event (i) no later than thirty forty-five (3045) days after the last day of each monthquarter (or, if earlier, five (5) days after the date (if required) to be filed with the SEC (without giving effect to any extension permitted by the SEC)), a company-prepared unaudited consolidated and consolidating balance sheet sheet, income statement, shareholders’ equity and income cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month fiscal quarter and for the portion of Parent’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Parent as fairly presenting the financial condition, income statement, shareholders’ equity and cash flows of Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes, all in a form reasonably acceptable to the Collateral Administrative Agent;
(ii) as soon as available, but in any event (i) no later than ninety (90) days after the last day of Borxxxxx’x fiscal year or within Fiscal Year of Parent most recently ended (or, if earlier, five (5) days of filing of after the same date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on the financial statementsstatements from an independent certified public accounting firm acceptable to Administrative Agent in its reasonable discretion (such financial statements shall contain balance sheet, income statement, shareholders’ equity and cash flows for such Fiscal Year);
(iii) as soon as available after approval thereof by Borxxxxx’x Pxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and sixty (y60) each December 15 days after the last day of the immediately preceding yearParent’s Fiscal Year, Borxxxxx’x Parent’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Parent’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Parent’s board of directors shall be delivered to Collateral Administrative Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made generally available to Borxxxxx’x any Loan Party’s security holders (other than materials provided to members or holders of Subordinated Debt; provided, however, the Borrower’s board of directors solely in their capacities as security holder and other than materials foregoing may be subject to such exclusions and redactions as Parent (after consultation with its external legal counsel) deems reasonably necessary, in the exercise of its good faith judgment, in order to (i) preserve the confidentiality arrangements which preclude the Borrower to so deliver any such materials)of highly sensitive information, or (ii) protect attorney client privilege;
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities SEC;
(vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Parent or its Subsidiaries (other than an Excluded Account), which statements may be provided to Administrative Agent and Exchange Commissioneach Lender by Borrower or directly from the applicable institution(s);
(vii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to any Loan Party’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(viii) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect any Loan Party’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(ix) written notice within five (5) days after (A) any Loan Party’s creation of a New Subsidiary in accordance with the terms of Section 6.10) or (B) any Loan Party registering or filing any application or other document with a governmental or other authority regarding any Intellectual Property;
(x) written notice at least ten (10) days’ prior to (A) any Loan Party adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000) in assets or property of Parent or any of its Subsidiaries), (B) any Loan Party changing its jurisdiction of organization, (C) any Loan Party changing its organizational structure or type, (D) any Loan Party change its legal name, or (E) changing any organizational number (if any) assigned by any Loan Party’s jurisdiction of organization;
(xi) upon any Loan Party becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xii) immediate notice if Parent or such Subsidiary has Knowledge that Parent, Borrower, or any Subsidiary or Affiliate of Parent or Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiii) notice of any commercial tort claim with an expected value in excess of Two Hundred Fifty Thousand Dollars ($250,000) and of the general details thereof;
(xiv) prompt delivery of (and in any event within two (2) Business Days) after entry in any amendments, supplements or waivers to any Closing Date Acquisition Document or any Subordinated Debt or after receipt of any non-ministerial notices or other non-ministerial material communications delivered to or received from the sellers under any Closing Date Acquisition Document or from any holder of Subordinated Debt;
(xv) if Parent or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Administrative Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii) above but in any event no later than ninety (90) days after the last day of the Fiscal Year of Parent, deliver to the Administrative Agent and each Lender a duly completed Compliance Certificate signed by a Responsible Officer. Further, concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but in any event no later than forty-five (45) days after the last day of each quarter, deliver to Administrative Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date;
(iii) copies of any material Governmental Approvals obtained by Parent or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Parent or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Parent or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000) in aggregate; and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause Parent and each of its Subsidiaries to, allow, at the sole cost of Borrower, Administrative Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the Collateral foregoing, upon request of Administrative Agent, Bxxxxxxx agrees to permit Administrative Agent (accompanied by any Lender at Lxxxxx’s sole cost and expense unless an Event of Default has occurred and is then continuing, in which may case at Borrower’s sole cost and expense) to communicate with Bxxxxxxx’s accounting firm with respect to the consolidated financial statements delivered hereunder, provided that Bxxxxxxx receives written notice at least three (3) Business Days in advance of such communication to the extent reasonably practicable (but in no event less than one (1) Business Day absent an Event of Default), and Borrower is given a reasonable opportunity to cause an officer of Parent to be by email) each time present during any information is delivered by posting thereto;such communication (and Parent hereby directs its accounting firm to discuss such matters with Administrative Agent and Lenders in accordance with this clause (c)).
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month month, certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) (A) as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements, and (B) along with the delivery of the financial statements under clause (B) of this Section 6.2(a)(ii), an updated Perfection Certificate of Borrower to reflect any amendments, modifications and updates, if any, in the Perfection Certificate after the Effective Date;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten fifteen (1015) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, that any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K with the SEC;
(vi) together with the Compliance Certificate, notice of any amendments to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on Form 10‑Kany of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that, 10‑Q to the Knowledge of the Responsible Officers, (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10);
(xi) written notice delivered at least fifteen (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Hundred Thousand Dollars ($100,000) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor which it intends to pursue, in each case in an amount greater than One Hundred Fifty Thousand Dollars ($150,000) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a duly authorized officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof; and
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000), and written notice of all returns (excluding expired product), disputes and claims regarding Inventory that involve more than One Hundred Thousand Dollars ($100,000) individually or in the aggregate in any month.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects except, in the case of unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month month, certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) (A) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements, and (B) along with the delivery of the financial statements under clause (B) of this Section 6.2(a)(ii), an updated Perfection Certificate of Borrower to reflect any amendments, modifications and updates, if any, in the Perfection Certificate after the Effective Date;
(iii) as soon as available after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten fifteen (1015) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Xxxxxxxx’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Xxxxxxxx’s board of directors; provided that, that any revisions to such projections approved by Borxxxxx’x Xxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; provided further that, notwithstanding the foregoing, Borrower shall deliver the board-approved annual financial projections for fiscal year 2021 to Collateral Agent and the Lenders no later than April 1, 2021;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Xxxxxxxx’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K with the SEC;
(vi) together with the Compliance Certificate, notice of any amendments to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on Form 10‑Kany of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that, 10‑Q to the Knowledge of the Responsible Officers, (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change; 24
(x) written notice delivered at least ten (10) days’ prior to Xxxxxxxx’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10);
(xi) written notice delivered at least fifteen (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Hundred Thousand Dollars ($100,000) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Xxxxxxxx becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Xxxxxxxx’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor which it intends to pursue, in each case in an amount greater than One Hundred Fifty Thousand Dollars ($150,000) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a duly authorized officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof; and
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000), and written notice of all returns (excluding expired product), disputes and claims regarding Inventory that involve more than One Hundred Thousand Dollars ($100,000) individually or in the aggregate in any month.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects except, in the case of unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthfiscal month (other than the last fiscal month of any fiscal quarter) of Borrower, a companycompany prepared summary financial statement covering the consolidated operations of Borrower and its Subsidiaries for such fiscal month in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available and in any event no later than forty-five (45) days after the last day of each fiscal quarter of each fiscal year of Borrower, a company prepared consolidated balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month quarter in reasonable detail and certified by a Responsible Officer as fairly presenting, in all respects, the financial position of Borrower and its Subsidiaries as at the end of such quarter, and in a form reasonably acceptable to the Collateral Agent;
(iiiii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion opinion from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion; provided that such audited consolidated financial statements shall include an unqualified opinion of Borrower’s independent certified public accounting firm on the such financial statementsstatements (except with respect to a going concern qualification);
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Bxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Bxxxxxxx’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Bxxxxxxx’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days of filing, all reports on Form 10 K, 10 Q and 8 K filed with the Securities and Exchange Commission;
(vi) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely directors, security holders or holders of Subordinated Debt, except any information that: (A) Borrower determines in their capacities as security holder good faith upon advice of its counsel that the receipt of such information by Collateral Agent would jeopardize the attorney-client privilege between Borrower and its counsel, or any Subsidiary and its counsel, (B is highly confidential proprietary information of Borrower or any Subsidiary or (iii) relates to Borrower’s or any Subsidiaries’ strategy or negotiating position with respect to Collateral Agent or any Lender;
(vii) prompt notice of any amendments of or other changes to the Operating Documents of Borrower, together with any copies reflecting such amendments or changes with respect thereto;
(viii) no later than materials subject thirty (30) days after the last day of each month, copies of the month end account statements for each Collateral Account maintained by Borrower and each Subsidiary of Borrower, which statements may be provided to confidentiality arrangements which preclude Collateral Agent by Borrower or directly from the Borrower to so deliver any such materialsapplicable institution(s);
(vix) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property, and (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice at least ten (10) days’ prior to Bxxxxxxx’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xii) written notice at least thirty (30) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xiii) concurrently with the delivery of monthly financial statements pursuant to Section 6.2(a)(i) above, an updated Intellectual Property report reflecting any registrations or filings of any Intellectual Property
(xiv) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00) or more or which could reasonably be expected to have a Material Adverse Change;
(xv) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xvi) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on Form 10‑Kthe OFAC Lists or (a) is convicted on, 10‑Q (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and 8‑K held over on charges involving money laundering or predicate crimes to money laundering;
(xvii) notice of any commercial tort claim of Bxxxxxxx and of the general details thereof;
(xviii) if any Subsidiary of Borrower becomes a Registered Organization, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; and
(xix) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission; provided that documents required to ) may be delivered pursuant to this Section 6.2(a)(v) electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(ii) above, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; any amendments, modifications and updates not permitted by one or more specific provisions in this Agreement are subject to the review and approval of Collateral Agent;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof (if any); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than One Hundred Thousand Dollars ($100,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify be conducted no more often than once every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of Collateral Agent, Bxxxxxxx agrees to permit Collateral Agent to communicate with Bxxxxxxx’s accounting firm (which may be by emailin the presence of a representative of Borrower) each time any information is with respect to the consolidated financial statements delivered by posting thereto;pursuant to this Section 6.2.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under in accordance with GAAP, consistently appliedapplied (except as disclosed therein), together with an Unqualified Opinion unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (provided that such opinion shall not fail to satisfy the requirement to be unqualified if the only qualifications are with respect to changes in GAAP or in treatment of items under GAAP that are disclosed in such financial statements);
(iii) no later than sixty (60) days after approval thereof by Borxxxxx’x board the last day of directorsBorrower’s fiscal year, but no later than the earlier of (x) ten (10) days’ days after such approval and (y) each December 15 thereof by Borrower’s board of the immediately preceding yeardirectors, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(iv) within five (5) days together with the delivery of deliverythe Compliance Certificate, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsdirectors);
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) prompt notice of any amendments of or other changes to the capitalization table of Borrower and to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) concurrently with delivery of the Compliance Certificate, copies of the month-end account statements for each Collateral Account maintained by the Loan Parties, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days (or such shorter period as shall be agreed by the Collateral Agent and the Original Lenders in their discretion) prior to the creation of a New Subsidiary by Borrower or any Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice delivered at least twenty (20) days’ prior to any Loan Party’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) together with delivery of the Compliance Certificate, notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by any Loan Party, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Collateral Agent. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate and Disclosure Schedules to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate and Disclosure Schedule after the Effective Date;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00);
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Fifty Thousand Dollars ($50,000.00) individually or in the aggregate in any calendar year; and
(vii) copies of any new Material Agreement entered into by Borrower or any of its Subsidiaries, any amendment to any Material Agreement entered into by Borrower or its Subsidiaries, or any modification or amendment to any other license, agreement or other contractual arrangement entered into by Borrower or any of its Subsidiaries such that it would become a Material Agreement.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Restoration Robotics, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) commencing with the month ending May 31, 2018, as soon as available, but no later than thirty (30) days after the last day of each monthmonth (forty-five (45) days after the last day of the final month of each quarter), a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to a going concern limitation based solely on the amount of cash and Cash Equivalents held by Borrower) on the financial statementsstatements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) no later than sixty (60) days after approval thereof by Borxxxxx’x board the last day of directorsBorrower’s fiscal year, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 thereof by the Borrower’s board of the immediately preceding yeardirectors, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days together with the delivery of deliverythe Compliance Certificate, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (except as otherwise required to be delivered hereunder, other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and board members or management of Borrower) or holders of Subordinated Debt (except as otherwise required to be delivered hereunder, other than materials subject provided to confidentiality arrangements which preclude the Borrower to so deliver any such materialsmembers of Borrower’s board of directors solely in their capacities as board members or management of Borrower);
(v) with each Compliance Certificate, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(vi) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of filingall material correspondence, all reports reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Borrower on Form 10‑K, 10‑Q Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(vii) prompt notice of any event that (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(viii) written notice delivered at least five (5) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10;
(ix) written notice delivered at least twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(x) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xi) immediate notice if Borrower or such Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xii) together with the delivery of the Compliance Certificate, notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000) and of the general details thereof;
(xiii) if Borrower has any Subsidiaries any of which is not a Registered Organization upon formation thereof but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xiv) no later than 45 days after the end of each fiscal quarter an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date; provided that and
(xv) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the terms herein, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth and together with the delivery of the Compliance Certificate, a company-company prepared consolidated cash balance sheet and income cash burn report, and accounts payable aging statement of for the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Parent’s fiscal quarters, a company prepared consolidated and, if prepared by Parent or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Parent’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower Parent and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Xxxxxx’s board of directors, but no later than the earlier February 28 of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding year, Borxxxxx’x Xxxxxx’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Parent’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Parent’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days together with the delivery of deliverythe Compliance Certificate, copies of all non-ministerial material statements, reports and notices made available generally to Borxxxxx’x Parent’s security holders or holders of Subordinated Debt (other than materials provided to members of the BorrowerParent’s board of directors solely in their capacities as security holder and other than materials holder, holders of Subordinated Debt, board members or management of Parent); provided, however, the foregoing may be subject to such exclusions and redactions as Parent deems reasonably necessary, in the exercise of its good faith judgment, in order to (i) preserve the confidentiality arrangements which preclude of highly sensitive information, (ii) prevent impairment of the Borrower to so deliver any such materials)attorney client privilege or (iii) conflict of interest with Lenders for new financing;
(vvi) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) prompt notice of any amendments of or other changes to the respective Operating Documents of Parent or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(viii) together with the delivery of the Compliance Certificate, copies of the month-end account statements for each Collateral Account maintained by Borrower or any Guarantor, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) [Reserved];
(x) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(xi) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xii) written notice delivered at least five (5) Business Days prior to Xxxxxxxx’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xiii) written notice delivered at least twenty (20) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiv) upon Xxxxxxxx becoming aware of the existence of any Default or Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Default or Event of Default, and Xxxxxxxx’s proposal regarding how to cure such Default or Event of Default;
(xv) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xvi) together with the delivery of the Compliance Certificate, notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than Two Hundred Fifty Thousand Dollars ($250,000.00) and of the general details thereof;
(xvii) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xviii) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that documents and
(xix) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the materials required to be delivered pursuant to the terms of this Section 6.2(a)(v) 6.2 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Parent posts such documents are posted documents, or provides a link thereto, on Parent’s website on the internet at wxx.xxx.xxxParent’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries in excess of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(v) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Spectrum Pharmaceuticals Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month month, certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) (A) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements, and (B) along with the delivery of the financial statements under clause (B) of this Section 6.2(a)(ii), an updated Perfection Certificate of Borrower to reflect any amendments, modifications and updates, if any, in the Perfection Certificate after the Effective Date;
(iii) as soon as available after approval thereof by Borxxxxx’x Bxxxxxxx’s board of directors, but no later than the earlier of (x) ten fifteen (1015) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Bxxxxxxx’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Bxxxxxxx’s board of directors; provided that, that any revisions to such projections approved by Borxxxxx’x Bxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; provided further that, notwithstanding the foregoing, Borrower shall deliver the board-approved annual financial projections for fiscal year 2021 to Collateral Agent and the Lenders no later than April 1, 2021;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Bxxxxxxx’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K with the SEC;
(vi) together with the Compliance Certificate, notice of any amendments to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on Form 10‑Kany of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that, 10‑Q to the Knowledge of the Responsible Officers, (A) could reasonably be expected to materially and 8‑K filed adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least ten (10) days’ prior to Bxxxxxxx’s creation of a New Subsidiary in accordance with the Securities terms of Section 6.10);
(xi) written notice delivered at least fifteen (15) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than One Hundred Thousand Dollars ($100,000) in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Bxxxxxxx becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and Exchange Commissionin any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Bxxxxxxx’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor which it intends to pursue, in each case in an amount greater than One Hundred Fifty Thousand Dollars ($150,000) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that and
(xvi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a duly authorized officer;
(ii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof; and
(iv) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000), and written notice of all returns (excluding expired product), disputes and claims regarding Inventory that involve more than One Hundred Thousand Dollars ($100,000) individually or in the aggregate in any month.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects except, in the case of unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter of Borrower, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety the earlier of one hundred twenty (90120) days after the last day of Borxxxxx’x Borrower’s fiscal year or and within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion a report on the financial statementsstatements (which report and accompanying financial statements shall (i) not be qualified as to going concern or contain an emphasis of matter paragraph or like statement as to “going concern” (an “Unqualified Audit Opinion”), and (ii) be unqualified as to scope of audit) without factoring in proceeds of any pending Term Loans from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Xxxxxxxx’s board of directors, but no later than the earlier of (x) ten (10) days’ Business Days after such approval and sixty (y60) each December 15 days after the last day of the immediately preceding Borrower’s fiscal year, Borxxxxx’x Borrower’s annual (A) financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors, which such annual financial projections shall be set forth in a month-by-month format and include separately revenues and costs and include income statement, balance sheet and statement of cash flow (such annual financial projections as originally delivered to Collateral Agent and reasonably acceptable to Collateral Agent are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Borrower’s board of directors shall be delivered to Collateral Agent no later than seven (7) Business Days after such approval) and (B) budget for the entire current fiscal year (which shall be set forth in a month-by-month format and include separately all major categories of expenses and include income statement, balance sheet and statement of cash flow) as approved by Borrower’s board of directors; provided that, any revisions to such projections budget approved by Borxxxxx’x Xxxxxxxx’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days Business Days after such approval;
(iv) within five (5) days of deliveryBusiness Days, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the BorrowerXxxxxxxx’s board of directors solely in their capacities as security holder and other than materials subject connection with each regularly scheduled quarterly meetings of the board of directors; provided, that Borrower shall not be required to confidentiality arrangements which preclude the Borrower to so deliver any such materials)information (i) that would jeopardize the attorney-client privilege between Borrower and its legal counsel, or (ii) that is highly confidential proprietary information of the Borrower;
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) notice concurrent with the Compliance Certificate required to be delivered pursuant to Section 6.1(b) of any material amendments of or other changes to the capitalization table of Borrower and any amendments to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments with respect thereto;
(vii) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter of Borrower, copies of the month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent by Borrower or directly from the applicable institution(s); provided, however, screenshots of each Collateral Account maintained by Borrower shall be delivered to Collateral Agent promptly upon Collateral Agent or any Lender’s written request during the continuation of any Event of Default;
(viii) prompt delivery of (and in any event within five (5) Business Days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to result in a Material Adverse Effect;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property or (B) has had or could reasonably be expected to have a Material Adverse Effect;
(x) written notice within twenty (20) Business Days of Xxxxxxxx’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice (x) at least ten (10) Business Days prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, (E) changing any organizational number (if any) assigned by its jurisdiction of organization, or (F) registering or filing any Intellectual Property with the United States Copyright Office, and (y) concurrently with the delivery of the Compliance Certificates required to be delivered pursuant to Section 6.1(b)(i), of new applications or registrations of any Intellectual Property with the United States Patent and Trademark Officer;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) prompt (and in any event within one (1) day), notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or
(a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim with an expected value in excess of Two Hundred Fifty Thousand Dollars ($250,000) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) no later than within seven (7) Business Days after the resignation, termination or change of Xxxxxxxx’s external independent certified public accounting firm, written notice thereof along with a brief explanation for such resignation, termination or change, as applicable;
(xvii) no later than seven (7) Business Days after the receipt thereof by Xxxxxxxx, any reports Borrower receives from its contract manufacturer and/ or contract research organization in connection with any material breaches by the Borrower or any material amendments to its existing agreements with such Person to the extent that such amendments would materially impair the perfection or priority of Collateral Agent’s Lien on the Collateral;
(xviii) promptly upon discovery, written notice of any action or inaction by or on behalf of a Lender (in any capacity) or Collateral Agent (in any capacity) that Borrower believes may be actionable against any Lender or Collateral Agent or a defense to payment of any or all Obligations for any reason; and
(xix) other information as reasonably requested by Collateral Agent or any Lender (which information must be provided that promptly but in any event no later than ten (10) Business Days after being requested, or such later time as Collateral Agent or such Lender may agree). Notwithstanding the foregoing, documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address and Borrower notifies Collateral Agent via email of such posting.
(a) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than forty-five (45) days after the last day of each fiscal quarter of Borrower, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this Agreement; in each case, subject to the review and approval of Collateral Agent;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of (i) any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Two Hundred Fifty Thousand Dollars ($250,000.00); and (ii) any actions, suits, arbitrations, investigations or proceedings pending or, to the Knowledge of the Responsible Officers, threatened in writing by or against Borrower or any Subsidiaries involving challenges to the validity of any Intellectual Property necessary for, or used in, the generation of revenues exceeding 5% of Net Product Revenues for the most recently completed twelve month period;
(vi) written notice within ten (10) Business Days of the termination of any Material Agreement; and
(vii) written notice of all returns, recoveries, disputes and claims (including, without limitation, warranty claims) regarding Inventory that involve more than One Hundred Fifty Thousand Dollars ($150,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower (which shall include the reasonable fees and expenses of Collateral Agent’s auditor), Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of Borrower’s Books, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the Collateral Agent (which may be by email) each time foregoing, upon request of any information is Xxxxxx, Xxxxxxxx agrees to permit such Xxxxxx to communicate with Xxxxxxxx’s accounting firm with respect to the consolidated financial statements delivered by posting thereto;pursuant to this Section 6.2.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth (other than a month that is the last month in a fiscal quarter), a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s fiscal quarters (other than a fiscal quarter that is the last fiscal quarter of a fiscal year), a company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 February 28 of the immediately preceding such year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(vvi) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission;
(vii) prompt notice of any material amendments of or other material changes to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice delivered at least ten (10) days prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xii) written notice delivered at least twenty (20) days prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than [***] in assets or property of Borrower or any of its Subsidiaries), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiv) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than [***] and of the general details thereof;
(xvi) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; provided that documents and
(xvii) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement;
(xviii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are posted permitted by one or more specific provisions in this agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of [***]; and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than [***] individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at wxx.xxx.xxx; the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (GenMark Diagnostics, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated balance sheet and income statement of and, if prepared by Borrower or if reasonably requested by the Lenders, financial information regarding Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and substantially in the form provided to and agreed by the Collateral Agent prior to the Effective Date or in a form otherwise reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Borrower’s fiscal quarters, a company prepared consolidated and, if prepared by Borrower, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(iii) as soon as available, but no later than the earlier of (x) ninety (90) days after the last day of Borxxxxx’x Borrower’s fiscal year or (y) within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiiv) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten five (105) days’ after such approval and (y) each December 15 February 25th of the immediately preceding applicable calendar year, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming such applicable fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivv) within five ten (510) days Business Days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(vvi) within five ten (510) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within ten (10) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice delivered at least (30) days’ prior to Borrower’s (A) changing the primary location where books and records are kept, (B) adding any new office or business location, including a warehouse (unless such new office or business location, including any such warehouse contains Collateral valued (based on book value) less than One Million Dollars ($1,000,000) in the aggregate), (C) changing its respective jurisdiction of organization, (D) changing its organizational structure or type, (E) changing its respective legal name, or (F) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) prompt notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) prompt notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Thousand Dollars ($100,000.00) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that documents and
(xvii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, the financial statements and other required to be delivered pursuant to this Section 6.2(a)(vclauses (ii), (iii), (v) and (vi) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which (x) Borrower posts such documents on the Borrower’s website or files such documents with the Securities and Exchange Commission and such documents are available on XXXXX, and (y) except for any documents required to be delivered pursuant to clause (ii) and (iii) above, provides a link to such filed or posted at wxx.xxx.xxxdocuments to the Collateral Agent. Notwithstanding anything to the contrary herein (including clause (xvii) above, Section 6.2(c) and Section 6.8) or in any other Loan Document, none of Collateral Agent, the Lenders or any Affiliates thereof shall be entitled to examine, access, audit, check, inspect or make abstracts and copies with respect to any items (and no Loan Party or any of their Subsidiaries shall be required to furnish any such items) (i) as to which legal counsel reasonably determines that the receipt or inspection of such item would jeopardize or otherwise impair the attorney-client privilege or constitutes attorney work product, (ii) if the item relates to any Loan Party’s or any of their respective Affiliates’ or Subsidiaries’ strategy, negotiating position or similar matters relating to this Agreement, the Loan Documents and the transactions contemplated therein, (iii) the medical records or similar records of any individual.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted or required by one or more specific provisions in this Agreement;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of One Million Dollars ($1,000,000); provided that that, notwithstanding anything to the contrary herein, the Borrower shall notify promptly provide written notice of any such litigation or proceeding which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Five Million Dollars ($5,000,000);
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Five Hundred Thousand Dollars ($500,000) individually or in the aggregate in any calendar year;
(vii) written notice of any changes in the Chief Executive Officer or Chief Financial Officer; and
(viii) written notice of (i) any termination of any Managed Practice Management Services Agreement or any Stock Transfer Restriction Agreement, (ii) any material amendment or other material reduction in the management fee payable to the Borrower or Subsidiary, as applicable under any Managed Practice Management Services Agreement and (iii) the execution by Borrower or Subsidiary of any new Managed Practice Management Services Agreement or any new Stock Transfer Restriction Agreement.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral (such visits, inspections and audits, collectively, an “Inspection”). There shall be no more than one Inspection in any calendar year and, except to the extent an Event of Default has occurred and is continuing, the Borrower shall not be required to reimburse the Collateral Agent (which may be by email) each time for more than one Inspection in any information is delivered by posting thereto;calendar year.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
; (ii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower (other than Parent) and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; (iii) as soon as available, but no later than ninety thirty (9030) days after the last day of Borxxxxx’x fiscal year or within five (5) days of filing each month, copies of the same with month end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the SEC, audited consolidated financial statements covering applicable institution(s); (iv) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the consolidated operations of Borrower Borrower’s Intellectual Property and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on the financial statements;
(iiiB) after approval thereof by Borxxxxx’x board of directors, but no later than the earlier of could reasonably be expected to result in a Material Adverse Change; (xv) ten written notice at least (10) days’ after prior to Borrower’s creation of a new Subsidiary in accordance with the terms of Section 6.10; (vi) written notice at least (30) days’ prior to Borrower’s (A) changing its jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its legal name, (D) changing any organizational number (if any) assigned by its jurisdiction of organization, or (E) registering or filing any Intellectual Property; (vii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such approval occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default; (viii) notice of any commercial tort claim of Borrower or any Guarantor and of the general details thereof; (ix) other information as reasonably requested by Collateral Agent or any Lender.
(x) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of more than Fifty Thousand Dollars ($50,000.00); and (yxi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Fifty Thousand Dollars ($50,000.00) individually or in the aggregate in any calendar year.
(b) Keep proper, complete and true books of record and account in accordance with GAAP and in all material respects. Borrower shall, and shall cause each December 15 of its Subsidiaries to, allow, at the immediately preceding yearsole cost of Borrower, Borxxxxx’x annual financial projections for the entire upcoming fiscal year as approved by Borxxxxx’x board of directors; Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that, any revisions to such projections approved by Borxxxxx’x board of directors that no notice shall be delivered required when an Event of Default has occurred and is continuing), to Collateral Agent visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Lenders Collateral. Such audits shall be conducted no later more often than seven twice every year unless (7and more frequently if) days after an Event of Default has occurred and is continuing. Notwithstanding the foregoing, upon request of any Lxxxxx, Bxxxxxxx agrees to permit such approval;
(iv) within five (5) days Lxxxxx to communicate with Bxxxxxxx’s accounting firm, in the presence of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x security holders (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials);
(v) within five (5) days of filing, all reports a Responsible Officer of the Borrower on Form 10‑Kor the Parent, 10‑Q and 8‑K filed with respect to the Securities and Exchange Commission; provided that documents required to be consolidated financial statements delivered pursuant to this Section 6.2(a)(v) shall be deemed to have been delivered on the date on which such documents are posted at wxx.xxx.xxx; provided that the Borrower shall notify the Collateral Agent (which may be by email) each time any information is delivered by posting thereto;6.2.
Appears in 1 contract
Samples: Business Loan, Guaranty, and Security Agreement (Amphitrite Digital Inc)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each LenderAgent:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company-company prepared consolidated and consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to going concern based solely on the amount of cash and cash equivalents held by Borrower) on the financial statementsstatements from Deloitte LLP or another independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion;
(iii) as soon as available after approval thereof by Borxxxxx’x Borrower’s board of directors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 of the immediately preceding yearapproval, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x Borrower’s board of directors; provided that, any revisions to such projections approved by Borxxxxx’x Borrower’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders (other than materials provided to members or holders of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materials)Subordinated Debt;
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission; provided that documents . Documents required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the Internet at wxx.xxx.xxxBorrower’s website address; provided that the provided, however, Borrower shall promptly notify the Collateral Agent Bank in writing (which may be by emailelectronic mail) each time of the posting of any information is delivered by posting such documents;
(vi) prompt notice of any amendments of or other changes to the capitalization table of Borrower and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice at least (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xi) written notice at least ten (10) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless each such new office or business location contains less than One Hundred Twenty Five Thousand Dollars ($125,000.00)) in assets or property of Borrower or any of its Subsidiaries), (B) changing its jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its legal name, or (E) changing any organizational number (if any) assigned by its jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default;
(xiii) immediate notice if Borrower or such Subsidiary has Knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number; and
(xvi) other information relating to Borrower or its Subsidiaries as reasonably requested by Collateral Agent.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to Collateral Agent:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) [Reserved];
(iii) [Reserved];
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each month, a company-company prepared consolidated balance sheet and sheet, income statement and cash flow statement, subject to year-end adjustments and the absence of footnotes, covering the Borrower consolidated operations of Holdings and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral AgentRequired Lenders;
(ii) as soon as available, but no later than forty-five (45) days after the last day of each of Holdings’ first three fiscal quarters, a company prepared consolidated and, if prepared by Holdings, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Holdings and its consolidated Subsidiaries for such fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to the Required Lenders;
(iii) as soon as available, but no later than ninety (90) days after the last day of Borxxxxx’x Holdings’ fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower Holdings and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion on financial statements from an independent certified public accounting firm reasonably acceptable to the financial statementsRequired Lenders (it being understood that any accounting firm of national standing is reasonably acceptable to the Required Lenders);
(iiiiv) as soon as available after approval thereof by Borxxxxx’x board the Board of directorsDirectors, but no later than the earlier of (x) ten (10) days’ after such approval and (y) each December 15 March 1 of the immediately preceding such year, Borxxxxx’x Holdings’ annual financial projections for the entire upcoming current fiscal year as approved by Borxxxxx’x board the Board of directorsDirectors; provided that, any revisions to such projections approved by Borxxxxx’x board the Board of directors Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval;
(ivv) within five (5) days of delivery, copies of all non-ministerial material statements, reports and notices made available generally to Borxxxxx’x Holdings’ security holders or holders of the Existing Notes (other than materials provided to members of the Borrower’s board Board of directors Directors solely in their capacities as security holder and other than materials holder); provided, however, the foregoing may be subject to such exclusions and redactions as Borrowers deem reasonably necessary, in the exercise of their good faith judgment, in order to (i) preserve the confidentiality arrangements which preclude of highly sensitive information, (ii) prevent impairment of the Borrower to so deliver any such materials)attorney client privilege or (iii) conflict of interest with Lenders for new financing;
(vvi) within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities SEC;
(vii) [reserved];
(viii) [reserved];
(ix) prompt delivery of (and Exchange Commissionin any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrowers’ business or that otherwise could reasonably be expected to have a Material Adverse Change;
(x) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(xi) written notice delivered at least ten (10) days’ prior to Holdings’ creation of a New Subsidiary in accordance with the terms of Section 6.10);
(xii) written notice delivered at least twenty (20) days’ prior to Borrowers’ (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000.00) in assets or property of Holdings or any of its Subsidiaries or are contract manufacturing sites), (B) changing its respective jurisdiction of organization, (C) changing its organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;
(xiii) upon either Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrowers’ proposal regarding how to cure such Event of Default or event;
(xiv) immediate notice if Holdings or such Subsidiary has Knowledge that Holdings, or any Subsidiary or Affiliate of Holdings, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering;
(xv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by any Borrower or any Guarantor, in each case in an amount greater than Five Hundred Thousand Dollars ($500,000.00) and of the general details thereof;
(xvi) if Holdings or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvii) an updated Perfection Certificate to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate after the Effective Date to the extent such amendments, modifications and updates are permitted by one or more specific provisions in this agreement; provided that documents delivery of such updated Perfection Certificate shall only be required once every six (6) months, starting with the month ending December 31, 2020; and
(xviii) other information as reasonably requested by any Lender. Notwithstanding the foregoing, (x) the financial statements required to be delivered pursuant to this Section 6.2(a)(vclauses (ii) and (iii) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Holdings posts such documents are posted documents, or provides a link thereto, on Holdings’ website on the internet at wxx.xxx.xxxHoldings’ website address and (y) a Lender may designate an entity to receive information provided under this Section 6.2(a) (other than any information filed with the SEC); provided that Highbridge designates Ducera as its designee as of the Borrower Effective Date.
(b) No later than forty-five (45) days after the last day of each month, deliver to each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(iii) prompt written notice of any litigation or governmental proceedings pending or threatened (in writing) against Holdings or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Holdings or any of its Subsidiaries of Five Hundred Thousand Dollars ($500,000.00).
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Holdings shall, and shall notify cause each of its Subsidiaries to, allow, at the sole cost of Holdings, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently if) an Event of Default has occurred and is continuing.
(d) Notwithstanding anything set forth above to the contrary, if any notice or Compliance Certificate required to be furnished pursuant to this Section 6.2 contains material non-public information (any such notice, a “MNPI Notice”), Borrowers, instead of delivering such MNPI Notice to each Lender, shall promptly notify each Lender in writing or orally that Borrowers desire to deliver an MNPI Notice. Within five (5) Business Days of receipt of such notification, each Lender may either (i) refuse the delivery of such MNPI Notice, in which case Borrowers’ obligations under this Section 6.2 with respect to such MNPI Notice and such Lender shall be deemed satisfied, or (ii) enter into good faith negotiations with Borrowers to agree the time period within which Borrowers will make the material non-public information contained in such MNPI Notice publicly available by including such information in a filing with the SEC (provided that during the period of good faith negotiations, a Lender may direct Borrowers to send such MNPI Notice to one of its advisors or agents, including without limitation, its attorneys, for review). If Borrowers and such Lender agree on such time period, Borrowers shall promptly deliver to such Lender such MNPI Notice and shall include the applicable material non-public information in a public filing with the SEC within such agreed to time period. The failure to agree on such time period will be by email) each time any information is delivered by posting thereto;deemed to satisfy Borrowers’ obligations under this Section 6.2 with respect to such MNPI Notice and such Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Senseonics Holdings, Inc.)
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) as soon as available, but no later than thirty forty five (3045) days after the last day of each month, a company-company prepared consolidated and, if prepared by Borrower or if reasonably requested by the Lenders, consolidating balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral AgentAgent and the Lenders;
(ii) as soon as available, but no later than ninety one hundred eighty (90180) days after the last day of Borxxxxx’x Borrower’s fiscal year or within five (5) days of filing of the same with the SEC, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, GAAP consistently applied, together with an Unqualified Opinion unqualified opinion (other than with respect to a going-concern qualification based solely on the amount of cash and Cash Equivalents held by Borrower) on such financial statementsstatements from an independent certified public accounting firm acceptable to the Collateral Agent and the Lenders in their reasonable discretion;
(iii) as soon as available after approval preparation thereof by Borxxxxx’x board of directorsBorrower’s management, but no later than the earlier of (xI) ten (10) days’ after such approval preparation and (yII) ninety (90) days after the last day of each December 15 of the immediately preceding yearBorrower’s fiscal years, Borxxxxx’x Borrower’s annual financial projections for the entire upcoming current fiscal year as approved prepared by Borxxxxx’x board of directorsBorrower’s management; provided that, that any revisions to such projections approved prepared by Borxxxxx’x board of directors Borrower’s management shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Borrower’s security holders or holders of Subordinated Debt (other than materials provided to members of the Borrower’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) in the event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports of the Borrower on Form 10‑K10-K, 10‑Q 10-Q and 8‑K 8-K filed with the Securities and Exchange Commission;
(vi) prompt notice of any amendments of or other changes to (A) unless the IPO has occurred, the capitalization table of Borrower, and (B) to the respective Operating Documents of Borrower or any of its Subsidiaries, in each case together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Borrower’s business or that otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the value of the Intellectual Property or (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice delivered at least (10) days’ prior to Borrower’s creation of a New Subsidiary, in accordance with the terms of Section 6.10;
(xi) written notice delivered at least (30) days’ prior to Borrower’s or any of its Subsidiary’s (A) adding any new offices or business locations, including warehouses (unless such new offices or business locations contain less than Two Hundred Fifty Thousand Dollars ($250,000.00) in assets or property of Borrower or any of its Subsidiaries other than locations where such property is held solely for, or in transition to or from, a clinical study), (B) changing its respective jurisdiction of organization, (C) changing its respective organizational structure or type, (D) changing its respective legal name, or (E) changing any organizational number (if any) assigned by its respective jurisdiction of organization;
(xii) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, prompt (and in any event within three (3) Business Days) written notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Borrower’s proposal regarding how to cure such Event of Default or event;
(xiii) immediate notice if Borrower or such Subsidiary has knowledge that Borrower or any Subsidiary or Affiliate of Borrower is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on, charges involving money laundering or predicate crimes to money laundering;
(xiv) notice of any commercial tort claim (as defined in the Code) or letter of credit rights (as defined in the Code) held by Borrower or any Guarantor, in each case in an amount greater than One Hundred Fifty Thousand Dollars ($150,000.00) and of the general details thereof;
(xv) if Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, written notice of such occurrence and information regarding such Person’s organizational identification number within seven (7) Business Days of receiving such organizational identification number;
(xvi) prompt notice of the execution any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; provided that and
(xvii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents and notices required to be delivered pursuant to this Section 6.2(a)(vthe terms hereof (to the extent any such documents and notices are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents are posted documents, or provides a link thereto, on Borrower’s website on the internet at wxx.xxx.xxxBorrower’s website address.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than forty five (45) days after the last day of each month, deliver to Collateral Agent and each Lender:
(i) a duly completed Compliance Certificate signed by a Responsible Officer;
(ii) an updated Perfection Certificate and Disclosure Schedules to reflect any amendments, modifications and updates, if any, to certain information in the Perfection Certificate and Disclosure Schedules after the Effective Date;
(iii) copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(iv) written notice of the commencement of, and any material development in, the proceedings contemplated by Section 5.8 hereof;
(v) written notice of any litigation or governmental proceedings pending or threatened (in writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000.00); and
(vi) written notice of all returns, recoveries, disputes and claims regarding Inventory that involve more than Two Hundred Fifty Thousand Dollars ($250,000.00) individually or in the aggregate in any calendar year.
(c) Keep proper, complete and true books of record and account in accordance with GAAP in all material respects. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Borrower Collateral. Such audits shall notify the Collateral Agent be conducted no more often than twice every year unless (which may be by emailand more frequently if) each time any information an Event of Default has occurred and is delivered by posting thereto;continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates; Notices. (a) Deliver to Collateral Agent and each Lender:
(i) no later than thirty forty five (3045) days after the last day of each monthof the first three fiscal quarters of each fiscal year, a company-company prepared consolidated balance sheet and sheet, income statement and cash flow statement covering the consolidated operations of the Borrower Parent and its consolidated Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to the Collateral Agent;
(ii) as soon as available, but no later than ninety one hundred twenty (90120) days after the last day of Borxxxxx’x Parent’s fiscal year or within five (5) days of filing of the same with the SECSecurities and Exchange Commission, audited consolidated financial statements covering the consolidated operations of Borrower and its consolidated Subsidiaries for such fiscal year, prepared under GAAP, consistently applied, together with an Unqualified Opinion unqualified opinion on such financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion; provided that Parent’s auditor as of the financial statementsEffective Date and other nationally recognized auditors shall be deemed acceptable to Collateral Agent;
(iii) as soon as available after approval thereof by Borxxxxx’x Parent’s board of directors, but no later than the earlier of (x) ten (10) days’ days after such approval and forty-five (y45) each December 15 days after the last day of the immediately preceding Parent’s fiscal year, Borxxxxx’x Parent’s annual (A) financial projections and (B) budget, in each case, for the entire upcoming current fiscal year as approved by Borxxxxx’x Parent’s board of directors; provided that, any revisions to such projections and/or budget approved by Borxxxxx’x Parent’s board of directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) days Business Days after such approval;
(iv) within five (5) days of delivery, copies of all non-ministerial statements, reports and notices made available to Borxxxxx’x Parent’s board of directors, security holders or holders of Subordinated Debt (other than materials provided to members of the BorrowerParent’s board of directors solely in their capacities as security holder and other than materials subject to confidentiality arrangements which preclude the Borrower to so deliver any such materialsor holders of Subordinated Debt);
(v) within five (5) days of filing, all reports of the Borrower on Form 10‑K10 K, 10‑Q 10 Q and 8‑K 8 K filed with the Securities and Exchange Commission; ;
(vi) concurrently with delivery of the financial statements required by Section 6.2(a)(i) for the last month of each quarter, notice of any changes the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) as soon as available, but no later than forty five (45) days after the last day of each quarter, copies of the most recent month end account statements for each Collateral Account with a balance in excess of $250,000 maintained by Borrower or any Loan Party, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), provided that if an Event of Default has occurred and is continuing as of the end of any such fiscal quarter, Borrower shall provide the most recent month end account statements for all Collateral Accounts of Borrower or any Loan Party;
(viii) prompt delivery of (and in any event within five (5) days after the same are sent or received) copies of all material correspondence, reports, documents required to and other filings with any Governmental Authority that could reasonably be delivered pursuant to this Section 6.2(a)(v) shall be deemed expected to have been delivered a material adverse effect on any of the date on which Governmental Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change;
(ix) prompt notice of any event that (A) could reasonably be expected to materially and adversely affect the Borrower’s Intellectual Property and (B) could reasonably be expected to result in a Material Adverse Change;
(x) written notice (10) days’ prior to Borrower’s creation of a New Subsidiary in accordance with the terms of Section 6.10;
(xi) written notice at least ten (10) days’ prior to Borrower’s (A) adding any new offices or business locations, including warehouses (unless such documents are posted at wxx.xxx.xxx; provided that the new offices or business locations contain less than Seven Hundred Fifty Thousand Dollars ($750,000.00) in assets or property of Borrower shall notify the Collateral Agent (which may be by email) each time or any information is delivered by posting thereto;of its Subsidiaries),
Appears in 1 contract
Samples: Loan and Security Agreement (Apollo Endosurgery, Inc.)
