Financial Statements, Reports, Certificates. (a) Deliver to 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 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) as soon as available, but no later than one hundred eighty (180) days after the last day of Parent’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits); (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission, (vi) prompt notice of any material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property; (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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and (ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer. (c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 5 contracts
Samples: Loan and Security Agreement (Poseida Therapeutics, Inc.), Loan and Security Agreement (Poseida Therapeutics, Inc.), Loan and Security Agreement (Poseida Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty (30) days after the last day of each monthReconciliation Period, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for such month during the period certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
Bank; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion Bank (other than any “going concern” solely in connection with it being understood that Ernst & Young LLP, the need Company’s auditor as of the Effective Date is acceptable to raise equity and negative profitsBank);
; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty within ten (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 (510) days of deliveryfiling, copies of all statements, reports and notices made available to Borrower’s security holders or to any 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, Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
SEC; (viiv) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of its SubsidiariesTwo Hundred Fifty Thousand Dollars ($250,000.00) or more; (v) as soon as available, but no later than thirty (30) days after approval by Borrower’s Board of Directors, annual financial projections for the following fiscal year approved by Borrower’s Board of Directors and commensurate in form and substance with those provided to Borrower’s venture capital investors, together with any copies reflecting related business forecasts used in the preparation of such amendments annual financial plans and projections; and (vi) budgets, sales projections, operating plans or changes with respect thereto;other financial information reasonably requested by Bank.
(viib) Within thirty (30) days after the last day of each Reconciliation Period, deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit B.
(c) Allow Bank to inspect the Collateral and audit and copy Borrower’s Books, including, but not limited to, Borrower’s Accounts, upon reasonable notice to Borrower; provided, however, that Borrower shall not be obligated pursuant to this Section 6.2 to provide access to any information the disclosure of which would adversely affect the attorney-client privilege between Borrower and its counsel. Such inspections or audits shall be conducted no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing. The foregoing inspections and audits shall be at Borrower’s expense, and the charge therefor shall be Eight Hundred Fifty Dollars ($850) per person per day (or such higher amount as shall represent Bank’s then-current standard charge for the same), plus reasonable out-of-pocket expenses. In the event Borrower and Bank schedule an audit more than ten (10) days in advance, and Borrower cancels or seeks to reschedule the audit with less than ten (10) days written notice to Bank, then (without limiting any of Bank’s rights or remedies), Borrower shall pay Bank a fee of One Thousand Dollars ($1,000) plus any out-of-pocket expenses incurred by Bank to compensate Bank for the anticipated costs and expenses of the cancellation or rescheduling. After the occurrence of an Event of Default, Bank may audit Borrower’s Collateral at Borrower’s expense, including, but not limited to, Borrower’s Accounts as frequently as Bank deems necessary at Borrower’s expense and at Bank’s sole and exclusive discretion, without notification to and authorization from Borrower.
(d) Upon Bank’s request, provide a written report on any Financed Receivable, where payment of such Financed Receivable does not occur by its due date and include (to the extent known by Borrower) the reasons for the delay.
(e) Provide Bank with, as soon as available, but no later than thirty (30) days following each Reconciliation Period, an aged listing of accounts receivable and accounts payable by invoice date, in form and detail acceptable to Bank.
(f) Provide Bank with, as soon as available, but no later than thirty (30) days following each Reconciliation Period, a Deferred Revenue report (if applicable), in form and detail acceptable to Bank.
(g) Provide Bank prompt written notice of (i) any material change in the composition of the Intellectual Property, and (ii) Borrower’s knowledge of an event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;.
(viiih) as soon as availableAt all times that Borrower is Borrowing Base Eligible and any Advances are outstanding, but no later than provide Bank within thirty (30) days after the last day of following each month, copies of the month-end account statements for each Collateral Account maintained by Borrower, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 LenderReconciliation Period, a duly completed Compliance Borrowing Base Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost Officer 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 4 contracts
Samples: Loan and Security Agreement (Tintri, Inc.), Loan and Security Agreement (Tintri, Inc.), Loan and Security Agreement (Tintri, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Collateral Agent: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and cash flow statement covering the consolidated operations Borrower’s and each of Parent and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (provided that such opinion may contain a “going concern” explanatory statement relating to the need for additional debt and/or equity financing) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or to any 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, in lieu of the financial statement described in this Section 6.2(a), within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower’s or another website on the internet; (vi) prompt notice of (A) any material changes to change in the capitalization table composition of the Intellectual Property of Borrower and (B) notice of the registration of any changes to the Operating Documents copyright, including any subsequent ownership right of Borrower in or to any of its Subsidiariescopyright, together with any copies reflecting such amendments patent or changes with respect thereto;
trademark, and (viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) 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 deposit account or securities account maintained by Borrower, or any of Borrower’s Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
; (viii) a prompt report of any legal actions pending or threatened against Borrower or any of its Subsidiaries that could result in damages or costs to Borrower or any of its Subsidiaries of One Hundred Fifty Thousand Dollars ($150,000) or more; and (ix) budgets, sales projections, operating plans and other financial information as reasonably requested by Collateral Agent or any LenderAgent. 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 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, or provides a link theretothereto to the Lenders, 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 Within thirty (30) days after the last day of each month, deliver to each LenderCollateral Agent with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 except while 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 3 contracts
Samples: Loan and Security Agreement (Vitae Pharmaceuticals, Inc), Loan and Security Agreement (Vitae Pharmaceuticals, Inc), Loan and Security Agreement (Vitae Pharmaceuticals, Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than (x) September 30th of the calendar year occurring after the last day of Borrower’s fiscal year or (y) if Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than any “going concern” or like qualification or exception solely in connection with the need to raise equity) on the financial statements from an BDO USA, LLP or another independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need provided, however, Borrower must also deliver to raise equity and negative profitseach Lender such financial statements for its fiscal year ended December 31, 2014, on or before November 30, 2015);
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices regarding substantive matters made available to Borrower’s security holders or holders of Subordinated Debt in their capacity as security holders or holders of Subordinated Debt, respectively;
(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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes amendments to the capitalization table of Borrower and of any amendments or 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other information as reasonably requested by Collateral Agent or any Lender, in good faith. 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer, which such Compliance Certificate shall include any updates necessary to cause the information in the existing Perfection Certificates to be true and correct in all material respects (and such existing Perfection Certificates shall be deemed amended by delivery of such Compliance Certificate upon review and approval by Collateral Agent of such updates to such information for the purpose of incorporation in the Perfection Certificates). Notwithstanding anything herein to the contrary, upon the reasonable request of Collateral Agent, Borrower shall promptly provide a revised and updated Perfection Certificate the information wherein shall be then current and which shall be subject to review and approval of Collateral Agent.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrowersubject to following sentence, 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 inspections and audits shall be at the Borrower’s expense and conducted no more often than twice once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 3 contracts
Samples: Loan and Security Agreement (Adynxx, Inc.), Loan and Security Agreement (Adynxx, Inc.), Loan and Security Agreement (Alliqua BioMedical, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table (A) amendments of Borrower and of any 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;thereto and (B) material changes to the capitalization table of Borrower or any of its Subsidiaries, provided, however, that (i) no such notice shall be required with respect to the grant, exercise, cancellation or modification of options to purchase Borrower’s Common Stock outstanding or hereafter issued by Borrower from the option pool set forth on the capitalization table of Borrower delivered to Bank in connection with the Perfection Certificate or upon exercise of warrants to purchase capital stock of the Borrower reflected upon such capitalization table and (ii) Borrower shall provide Lenders notice with respect to, and copies of, the current capitalization table no later than thirty (30) days after the end of each quarter to the extent that there have been any amendments of, or changes to, the capitalization table since the last time the same was delivered to Lenders.
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year six months unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 3 contracts
Samples: Loan and Security Agreement (Anaptysbio Inc), Loan and Security Agreement (Anaptysbio Inc), Loan and Security Agreement (Anaptysbio Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheetsheet and income statement, income statement and a consolidated cash flow statement statement, covering the consolidated (and consolidating, as applicable) operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements (or qualified only as to going concern) from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 written statements, reports and notices generally made available to Borrower’s security holders or holders of Subordinated Debt in their capacities as security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt together with the Compliance Certificate delivered pursuant to Section 6.2(b), notice of any material amendments of or other material changes to the capitalization table of Borrower and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; provided, however, Borrower shall also upon Collateral Agent’s request, promptly deliver to Collateral Agent its then current capitalization table;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (subject, in the case of unaudited financial statements, to normal year-end non-cash adjustments to reflect actual expenses incurred and merger consolidation adjustments and the absence of footnotes), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 3 contracts
Samples: Loan and Security Agreement (Prometheus Biosciences, Inc.), Loan and Security Agreement (Prometheus Biosciences, Inc.), Loan and Security Agreement (Prometheus Biosciences, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthquarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than as to going concern or a qualification resulting solely from the scheduled maturity of the Term Loans occurring within one year from the date such opinion is delivered) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter quarter‑by‑quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) in the event that so long as Borrower becomes remains subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports 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 material changes to the capitalization table amendments of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 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 OfficerOfficer and (ii) a financial “DashBoard” report which shall include unrestricted cash and cash equivalents, marketable securities, revenue for the reporting month, and year-to-date revenue.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 3 contracts
Samples: Loan and Security Agreement (Invitae Corp), Loan and Security Agreement (Invitae Corp), Loan and Security Agreement (Invitae Corp)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty fifty (180150) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements (or qualified only as to going concern typical for venture backed companies similar to Borrower) from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with Xxxx Xxxxx LLP being deemed acceptable by Collateral Agent as of the need to raise equity and negative profitsEffective Date);
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter month‑by‑month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 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, 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; provided that, in addition to the foregoing, Borrower shall prompt notice of any material amendments of or other material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) with each request for a Revolving Advance and within thirty (30) days after the end of each month during which any Revolving Advances are outstanding, (A) aged listings of accounts receivable and accounts payable (by invoice date), and (B) a duly completed Borrowing Base Certificate signed by a Responsible Officer;
(x) a Transaction Report (and any schedules related thereto), (i) with each request for a Revolving Advance, and (ii) if Revolving Advances are outstanding, (a) within thirty (30) days after the end of each month when a Streamline Period is in effect, and (b) on the Friday of each week, when a Streamline Period is not in effect;
(xi) prompt written notice of any changes to the beneficial ownership information set out in items 1 and 2 of Addendum 1 to the Perfection Certificate. Borrower understands and acknowledges that Collateral Agent and each Lender relies on such true, accurate and up-to-date beneficial ownership information to meet Collateral Agent’s and such Lender’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers; and
(ixxii) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year (or more frequently as Collateral Agent in its sole discretion determines that conditions warrant) unless (and more frequently if) an Event of Default has occurred and is continuing. The foregoing inspections and audits shall be at Borrower’s expense, and the charge therefor shall be One Thousand Dollars ($1,000.00) per day (or such higher amount as shall represent Lenders’ then-current standard charge for the same), plus reasonable out-of-pocket expenses. In the event Borrower and Collateral Agent or any Lender schedule an audit more than ten (10) days in advance, and Borrower cancels or seeks to reschedule the audit with less than ten (10) days written notice to Collateral Agent or any such Lender, then (without limiting any of Collateral Agent’s rights or remedies) Borrower shall pay Collateral Agent or such Lender a fee of One Thousand Dollars ($1,000.00) plus any out-of-pocket expenses incurred by Collateral Agent or such Lender to compensate Collateral Agent or such Lender for the anticipated costs and expenses of the cancellation or rescheduling.
Appears in 3 contracts
Samples: Loan and Security Agreement (Castle Biosciences Inc), Loan and Security Agreement (Castle Biosciences Inc), Loan and Security Agreement (Castle Biosciences Inc)
Financial Statements, Reports, Certificates. Parent shall
(a) Deliver to 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 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) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of Parent’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm or chartered accountant firm acceptable to Collateral Agent in its reasonable discretion (other than provided that any “going concern” solely in connection with the need of Deloitte, PricewaterhouseCoopers, Ernst & Young and KPMG is acceptable to raise equity and negative profitsCollateral Agent);
; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty thirty (6030) days after the last day of each of Parent’s fiscal years, Parent’s annual Borrowers’ financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”); provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to any Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 3 contracts
Samples: Loan and Security Agreement (Sophiris Bio Inc.), Loan and Security Agreement (Sophiris Bio Inc.), Loan and Security Agreement (Sophiris Bio Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 (and consolidating, if applicable) balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, prepared by Ernst & Young LLP or another firm reasonably acceptable to the Collateral Agent, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,SEC;
(vi) prompt notice of any material amendments of or other material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (subject to quarter-end non-cash adjustments as explained in an accompanying letter or footnote to the Compliance Certificate), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. If any date on which Borrower is required to deliver any information or certificates pursuant to Section 6.2(a) or Section 6.2(b) is not a Business Day, Borrower shall be permitted to deliver such information on the next day following such date that is a Business Day.
Appears in 2 contracts
Samples: Loan and Security Agreement (Civitas Therapeutics, Inc.), Loan and Security Agreement (Civitas Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month (other than January month-end reporting of each year, for which month only the following summary financial reporting shall be due each year: (A) the month-end unrestricted cash balance (inclusive of investments), (B) the cash burn for the month (net of cash received from collaboration revenue or financing activities), (C) any cash from collaboration and/or product revenue, and (D) any cash proceeds from financing activities), a company prepared consolidated 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 Officer, prepared in accordance with IFRS, and in a form reasonably acceptable to Collateral Agent, provided, however, that in the event that Parent, SPAC or HoldCo becomes subject to the reporting requirements under a U.S. national stock exchange and Parent, SPAC or HoldCo becomes subject to the reporting requirements under the Securities Exchange Act of 1934, then Parent, SPAC or HoldCo, as applicable, shall no later than the due date of its filing of its quarterly report on Form 10-Q (or equivalent) under the Securities Exchange Act of 1934 (but in any event if not provided in accordance with the foregoing clause, no later than 90 days after the end of the applicable fiscal quarter, deliver a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent and its Subsidiaries for the applicable fiscal quarter certified by a Responsible Officer, prepared in accordance with IFRS, with a Compliance Certificate, and in a form reasonably acceptable to Collateral Agent);
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of Parent’s fiscal year or within five (5) days Business Days of filing with the SEC, audited consolidated financial statements prepared under GAAPIFRS, consistently applied, together with an unqualified opinion (provided that such opinion may include going concern explanatory language and exceptions as it relates to a Loan Party’s cash level);
(iii) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iiiiv) as soon as available after approval thereof by Parent’s Board of Directors, but and no later than sixty (60) days after the last day of each of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter month‑by‑month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by 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);
(ivv) within five (5) days Business Days of delivery, copies of all statements, reports and notices made generally available to BorrowerParent’s security holders or holders of Subordinated Debt;
(vvi) in the event that Borrower Parent, SPAC or HoldCo becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days Business Days of filing, direct Collateral agent to the links to all reports on Form 10-K10‑K, 10-Q 10‑Q and 8-K 8‑K filed with the Securities and Exchange Commission,
(vivii) prompt with the next due Compliance Certificate notice of any material changes to the capitalization table amendments of Borrower and of any or other changes to the Operating Documents of Borrower the Loan Parties or any of its their Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiviii) prompt with the next due Compliance Certificate notice of any material amendments of or other material changes to the capitalization table of Parent (unless Parent, SPAC or HoldCo is a reporting company), provided that for the avoidance of doubt, no reporting is required for changes solely due to stock option plan issuance and changes.
(ix) with the next due Compliance Certificate, notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of the Loan Parties or any of their Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiix) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by Borrowerthe Loan Parties or their Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixxi) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, or anything herein to the contrary herein, any statements, notices, or other documents required to be delivered to Collateral Agent pursuant to the terms hereof of this Agreement (to the extent any such documents are included in materials otherwise filed with the SEC, including any filings in respect of the departure of a Key Persons) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP IFRS in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower The Loan Parties shall, and shall cause each of its their 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 once every year twelve (12) months unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Immunocore LTD), Loan and Security Agreement (Immunocore LTD)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement (including unit sales data) and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by Parentbut no later than prior to the last day of each of Borrower’s fiscal years, management-prepared draft annual projections for the upcoming fiscal year substantially in the form to be presented to Borrower’s Board of Directors, and as soon as available but no not later than sixty (60) days after the last day February 28 of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current such fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”); provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval)approval and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions;
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,;
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and;
(ix) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Inspire Medical Systems, Inc.), Loan and Security Agreement (Inspire Medical Systems, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (except that such opinion may be qualified with respect to going concern) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty forty-five (6045) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders generally or holders of Subordinated DebtDebt in their capacity as such;
(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 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 (i) any material changes to the capitalization table amendments of Borrower and of any or other changes to the Operating Documents of Borrower or any of its Subsidiaries, Subsidiaries and (ii) any material amendment of or other change to the capitalization table of Borrower; in each case together with any copies reflecting such amendments or changes with respect thereto;; and provided that Borrower shall provide Collateral Agent and Lenders the notice with respect to, and copies of, the current capitalization table no later than thirty (30) days after the end of each fiscal quarter to the extent that there have been any amendments of, or changes to, the capitalization table since the last time the same was delivered to Collateral Agent and Lenders.
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered the date on which Borrower notifies Collateral Agent and Lenders that the SEC has made such documents publicly available or the date on which Borrower posts such 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activitiesactivities (subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnotes). 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 (Miramar Labs, Inc.), Loan and Security Agreement (Miramar Labs, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end GAAP and audit adjustments and the absence of footnotes) and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year (and three hundred sixty-five (365) days after the last day of Borrower’s fiscal year ending December 31, 2016) or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than a going-concern qualification typical for venture backed companies similar to Borrower) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)firm;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered under this Section 6.3(a)(iii) to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) in the event (and during the period) 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) Borrower shall prompt notice of any material amendments of or other material changes to the capitalization table of Borrower and any amendments of any 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) prompt notice of any event (other than with respect to any third party) that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (except for interim and unaudited financial statements), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Sutro Biopharma Inc), Loan and Security Agreement (Sutro Biopharma Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each month, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for such month during the period certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
Bank; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (except for “going concern” qualifications for development stage companies) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent Bank in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by Parent’s Board of Directorsavailable, but no later than sixty forty-five (6045) days after the last day of ParentBorrower’s fiscal yearsyear, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower’s or another website on the Internet; (vi) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with Subsidiaries that could result in damages or costs to Borrower or any copies reflecting such amendments of its Subsidiaries of One Hundred Thousand Dollars ($100,000) or changes with respect thereto;
more; and (vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial information as reasonably requested by Collateral Agent or any Lender. Notwithstanding Bank.” and inserting in lieu thereof 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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.following:
Appears in 2 contracts
Samples: Loan and Security Agreement (T2 Biosystems, Inc.), Loan and Security Agreement (T2 Biosystems, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Administrative Agent: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Administrative Agent;
; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Administrative Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
; (viv) 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower’s or another website on the Internet; (viv) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event Subsidiaries that could reasonably be expected result in damages or costs to materially and adversely affect the value Borrower or any of the Intellectual Property;
its Subsidiaries of Fifty Thousand Dollars (viii$50,000) as soon as available, but no later than or more; (vi) within thirty (30) days after the last day of each monthBorrower’s fiscal year, copies of the month-end account statements for each Collateral Account maintained by Borrower, which statements may be all annual financial projections commensurate in form and substance with those provided to Collateral Borrower’s venture capital investors; (vii) budgets, sales projections, operating plans and other financial information reasonably requested by Administrative Agent; (viii) copies of all Bank Secrecy Act/Anti-Money Laundering (BSA/AML) internal and independent testing reports as requested by Administrative Agent in its reasonable discretion; and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other information as reasonably requested by Collateral Agent or promptly, copies of any Lender. Notwithstanding communications with the foregoing, documents required to be delivered pursuant Securities and Exchange Commission which relate to the 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressstatus of Consumer Loans as “securities” under federal law.
(b) Concurrently Within twenty (20) days after the last day of each month, deliver to Administrative Agent a duly completed Borrowing Base Certificate signed by a Responsible Officer, with the delivery aged listings of Eligible Loans and an accounting of the financial statements specified balance of the Loan Management Account together with a breakdown of the amounts in Section 6.2(a)(iwhich each Consumer Lender and the Lenders have an interest.
(c) above but no later than Within thirty (30) days after the last day of each month, deliver to each LenderAdministrative Agent with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible Officer.
(cd) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation Allow Administrative Agent to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, audit Borrower’s Collateral 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’s expense. Such audits shall be conducted no more often than twice once every year twelve (12) months unless (and more frequently if) a Default or an Event of Default has occurred and is continuing.
(e) Upon Administrative Agent’s request, deliver to Administrative Agent a copy of the final, signed loan documents evidencing Eligible Loans, including without limitation the Financed Loan Notes, and assignments of such Eligible Loans by WebBank to Borrower.
Appears in 2 contracts
Samples: Loan and Security Agreement (LendingClub Corp), Loan and Security Agreement (LendingClub Corp)
Financial Statements, Reports, Certificates. (a) Deliver Parent shall deliver to each Lender:
(i) as soon as available, but no later than thirty forty five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated (and upon Collateral Agent’s request, consolidating) balance sheet, income statement and cash flow statement covering the consolidated operations of the Parent and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral AgentAgent as fairly presenting in all material respects the financial condition, results of operations, 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;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of Parent’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with provided that the need to raise equity Collateral Agent and negative profitsthe Lenders acknowledge that KPMG is an acceptable independent certified public accounting firm);
(iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty thirty one (6031) days after the last day of each of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter format month format, on a consolidated (and upon Collateral Agent’s request, consolidating) basis (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalapproval and, the term “Annual Projections” shall include such revisions);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to BorrowerParent’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any or other changes to the Operating Documents of Borrower any Credit Party or any of its their Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viivi) prompt quarterly (unless an Event of Default has occurred and is continuing, in which case, prompt) notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of any Credit Party or any of their Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiivii) as soon as available, but no later than thirty forty five (3045) days after the last day of each monthfiscal quarter, copies of the month-end account statements for each Collateral Account maintained by Borrowerany Credit Party or any of their Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ixviii) (other than confidential treatment requests) other financial 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 SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower Parent posts such documents, or provides a link thereto, on BorrowerParent’s website on the internet at BorrowerParent’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 forty five (3045) days after the last day of each monthfiscal quarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower Each Credit Party shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrowerthe Credit Parties, 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 (Durata Therapeutics, Inc.), Loan and Security Agreement (Durata Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(ia) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated balance sheet, income statement and cash flow statement covering the unaudited consolidated operations of Parent the Loan Parties and its their respective Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(iib) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of Parent’s Loan Parties’ fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “discretion; provided that such unqualified opinion may include a going concern” solely in connection with the need to raise equity and negative profits)concern explanatory paragraph;
(iiic) as soon as available after approval thereof by Irish Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Loan Party’s fiscal years, Parent’s Loan Parties’ annual financial projections for the entire current fiscal year as approved by Irish Parent’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Irish Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(ivd) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrowerany Loan Party’s security holders or holders of Subordinated Debt;
(ve) in the event that Borrower 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vif) prompt together with the Compliance Certificate, notice of any material amendments of or other changes to the capitalization table of Borrower each Loan Party and of any changes to the Operating Documents of Borrower such Loan Parties or any of its their respective Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; provided that, in addition to the foregoing, the Loan Parties shall give prompt notice of any material amendments of or other material changes to the capitalization table of each Loan Party and to the Operating Documents of such Loan Parties or any of their respective Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; provided, however, for so long as Irish Parent’s ordinary shares are traded on a nationally recognized securities exchange following Irish Parent’s initial registered public offering, then the Loan Parties shall not be required to provide notice of any amendments of or other changes to the capitalization table of Irish Parent hereunder;
(viig) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of each Loan Party or any of their respective Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration on a monthly basis, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiih) except with respect to Collateral Accounts maintained with Collateral Agent, 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 Borrowereach Loan Party and their respective Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower such Loan Party or directly from the applicable institution(s);
(i) a prompt written notice to Collateral Agent and the Lenders of any litigation or governmental proceedings pending or threatened (in writing) against any Loan Party or any of their respective Subsidiaries, which could reasonably be expected to result in damages or costs to any Loan Party or any of their respective Subsidiaries of, individually or in the aggregate, Two Hundred Fifty Thousand Dollars ($250,000.00) or more or which could reasonably be expected to have a Material Adverse Change;
(j) 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;
(k) without limiting or contradicting any other more specific provision of this Agreement, promptly (and in any event within three (3) Business Days) upon Loan Parties 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, Loan Parties shall give written notice to Collateral Agent and each Lender 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
(ixl) 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 SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts Loan Parties post such documents, or provides provide a link thereto, on Borrower’s Loan Parties’ website on the internet at Borrower’s Loan Parties’ 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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Iterum Therapeutics PLC), Loan and Security Agreement
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating (if applicable) balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements (provided that such opinion may include a going concern as it relates to Borrower’s cash level) from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 generally made available to Borrower’s security holders holding a majority of any class of Borrower’s securities or holders of Subordinated Debt holding a majority of any type or tranche of Subordinated Debt, in such holders’ capacities as security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,;
(vi) prompt notice of any (i) material amendments of or other changes to the capitalization table of Borrower Borrower; provided that this subclause shall only apply prior to the IPO Event, and (ii) amendments of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower 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 copies of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries;
(x) prompt notice of the execution of any Material Agreement or any amendment to, modification of, termination of or waiver under any Material Agreement; and
(ixxi) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (subject, in the case of unaudited financial statements, to normal year-end adjustments to reflect actual expenses incurred and the absence of footnotes and provided further that such unaudited financial statements shall not include the non-cash impact of accounting for stock compensation or other non-cash equity and warrant items), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (Centrexion Therapeutics Corp), Loan and Security Agreement (Centrexion Therapeutics Corp)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified (other than with respect to going concern) opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than ten (10) days after such approval or sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated DebtDebt (excluding any materials provided to such security holders or holders of Subordinated Debt solely in their capacity as members of Borrower’s Board of 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,; provided, however, that notwithstanding anything stated herein to the contrary, the posting of a link on Borrower’s website on the Internet to any annual, regular, periodic and special reports, registration statements and notices shall satisfy the delivery requirements hereunder;
(vi) prompt with the delivery of the next Compliance Certificate due hereunder, (A) notice of any material changes to the capitalization table of Borrower Borrower, and (B) notice of any material amendments or changes to the Operating Documents of Borrower or any of its Subsidiaries, together with with, in each of (A) and (B), any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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, Loan and Security Agreement (Restoration Robotics Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty (3040) days after the last day of each month, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty ninety (18090) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAPIFRS, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter month‑by‑month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 Borrower’s security 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 on Form 1020-K, 10-Q F and 8-K 6‑K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any changes amendments to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 forty (3040) 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 books of record and account in accordance with GAAP IFRS in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (ObsEva SA), Loan and Security Agreement (ObsEva SA)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated and consolidating (if applicable) balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ninety (6090) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter quarterly format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalapproval and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiivii) 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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixviii) 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 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, 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 forty-five (3045) days after the last day of each monthquarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Durect Corp), Loan and Security Agreement (Durect Corp)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable satisfactory to Collateral Agent;
(ii) prior to an IPO Event, as soon as available, but no later than one two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with provided that KPMG LLP shall be deemed acceptable to the need to raise equity and negative profits)Collateral Agent;
(iii) as As soon as available after approval presentation thereof by Parentmanagement of Borrower to Borrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year (and, if applicable, for future fiscal years) as approved presented by Parentmanagement of Borrower to Borrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such the annual financial projections as that were originally delivered to Collateral Agent and the Lenders and attached hereto as Exhibit E, are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved presented by Parentmanagement of Borrower to Borrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) business days after such presentation and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such approvalrevisions);
(iv) within five (5) days of delivery, copies of all material written statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) after an IPO Event and in the any 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any registered copyright, patent or registered trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects subject to normal year-end adjustments and footnotes, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 and/or inspections shall be conducted no more often than twice once 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 (Sientra, Inc.), Loan and Security Agreement (Sientra, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lenderthe Collateral Agent:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements (or qualified only as to going concern) from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (discretion; provided that KPMG and any other than any “going concern” solely in connection with certified public accounting firm of recognized national standing shall be acceptable to the need to raise equity and negative profits)Collateral Agent;
(iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter month by month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 Business Days of delivery, copies of all non-ministerial statements, reports and notices made generally available to Borrower’s security 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 Business Days of filing, all reports on Form 10-10 K, 10-10 Q and 8-8 K filed with the Securities and Exchange Commission,;
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual PropertyProperty in a manner that could have a material and adverse effect on Borrower’s business as conducted;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end monthly account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) 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 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, 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 forty-five (3045) days after the last day of each monthquarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (subject to normal year-end non-cash adjustments, consistent with Borrower’s past practices), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (but not less than five (5) days prior written 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 once 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 (Vera Therapeutics, Inc.), Loan and Security Agreement (Vera Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty fifty (180150) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 Business Days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 Business Days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any or other material changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect theretothereto and prior to an initial public offering of the company’s common stock, any changes to the capitalization table of Borrower;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (Tobira Therapeutics, Inc.), Loan and Security Agreement (Tobira Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than (x) thirty (30) days after the last day of each monthmonth which is not the last month of a fiscal quarter of Borrower, and (y) forty-five (45) days after the last day of each month which is the last month of a fiscal quarter of Borrower, a company prepared consolidated and consolidating (if prepared) balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than the earlier of (A) one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or (B) within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified (other than going concern qualifications with respect to the maturity of any outstanding Term Loans within the next year or explanatory language as it relates to Borrower’s cash levels) opinion on the financial statements from an Ernst & Young LLP or another independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentXxxxxxxx’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentXxxxxxxx’s annual financial projections for the entire current fiscal year as approved by ParentXxxxxxxx’s Board of Directors, which such annual financial projections shall include management prepared (which shall be set forth in a quarter-by-quarter format reviewed by Xxxxxxxx’s chief financial officer, but need not be approved by Borrower’s Board of Directors) quarterly cash runway projections (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”); provided that, any (x) revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be promptly delivered to Collateral Agent and the Lenders but in any event no later than seven ten (710) days Business Days after such approval)approval and (y) material revisions of the management prepared Annual Projections shall be promptly delivered to Collateral Agent and the Lenders but in any event no later than ten (10) Business Days after such revisions are reviewed by Xxxxxxxx’s chief financial officer;
(iv) within five (5) days Business Days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 Business Days after filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any changes to (x) the Operating Documents of Borrower or any of its Subsidiaries, or (y) in the event that Borrower is no longer subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, prompt notice of any material change to the capitalization of Borrower together, in each case, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than (x) thirty (30) days after the last day of each monthmonth which is not the last month of a fiscal quarter of Borrower, and (y) forty-five (45) days after the last day of each month which is the last month of a fiscal quarter of Borrower, copies of the month-end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 SECSecurities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressaddress or (ii) on which such documents are posted on Borrower’s behalf on the website of the Securities and Exchange Commission.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than (x) thirty (30) days after the last day of each monthmonth which is not the last month of a fiscal quarter of Borrower, and (y) forty-five (45) days after the last day of each month which is the last month of a fiscal quarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Syros Pharmaceuticals, Inc.), Loan and Security Agreement (Syros Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,;
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual PropertyProperty of Borrower;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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.
(d) Deliver to Collateral Agent and Alexandria Real Estate, as soon as available, but no later than thirty (30) days after the last day of each month in which Borrower has delivered in excess of One Hundred Thousand Dollars ($100,000.00) worth of new Collateral to the property located at the ARE Leased Location, an updated, fully comprehensive, Exhibit A to the landlord lien waiver among Alexandria Real Estate, Borrower and Collateral Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Constellation Pharmaceuticals Inc), Loan and Security Agreement (Constellation Pharmaceuticals Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any provided that a “going concern” solely or like qualification, in connection with the need and of itself, will not render such opinion unacceptable to raise equity and negative profitsLenders);
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty forty-five (6045) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of (A) any material changes to the capitalization table amendments of Borrower and of any or other changes to the Operating Documents of Borrower or any of its SubsidiariesSubsidiaries and (B) prior to the Equity Event, any material changes to the capitalization table of Borrower, in each case, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the material Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) within thirty (30) days after the end of each month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, (C) monthly reconciliations of accounts receivable agings (aged by invoice date), transaction reports and general ledger, and (D) monthly deferred revenue reports (if applicable); provided, however, if Borrower has an outstanding balance on the Revolving Line and Net Cash is less than One Million Dollars ($1,000,000.00), Borrower shall provide such reports no later than Monday of each week with respect to the previous week;
(x) a Transaction Report (and any schedules related thereto) with (A) each request for a Revolving Advance and (B) if Borrower has an outstanding balance on the Revolving Line, either (1) monthly within thirty (30) days after the last day of each month when Net Cash as of such date is equal to or greater than One Million Dollars ($1,000,000.00) or (2) no later than Monday of each week with respect to the previous week if Net Cash is less than One Million Dollars ($1,000,000.00); and
(ixxi) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (SI-BONE, Inc.), Loan and Security Agreement (SI-BONE, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion as to the scope audit on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need it being understood that Xxxxxx is acceptable to raise equity and negative profitsCollateral Agent);
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, statements and reports and notices notice made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent (or any Lender, if an Event of Default then exists and as is continuing) 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 (Inhibrx, Inc.), Loan and Security Agreement (Inhibrx, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty fifty (180150) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need discretion, provided that it is agreed by Collateral Agent that McGladrey & Xxxxxx, LLP is acceptable to raise equity and negative profits)Collateral Agent;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s each previous fiscal yearsyear of Borrower, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalapproval and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
(iv) monthly updates specifying (A) the number of study sites enrolled, (B) the number of subjects enrolled in the CLR-610 and control arm groups, (C) the number of subjects that have completed treatment through days 30, 60, 90, 180, 270 and 365, and (D) a cumulative verbal summary of any data assembled under the Phase 3-B supplemental study;
(v) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders or 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vivii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiviii) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiiix) 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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixx) other financial information with respect to Borrower or its Subsidiaries 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, at reasonable times 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 (Clarus Therapeutics Inc), Loan and Security Agreement (Clarus Therapeutics Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter, and a consolidating income statement for the 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 one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an Xxxxx Xxxxxxxx or another independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)Agent;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day March 31 of Parent’s fiscal yearseach year, ParentBorrower’s annual financial projections (including an operating budget) for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections and budget shall be set forth in a quartermonth-by-quarter month format (such annual financial projections and budget as originally delivered to Collateral Agent and the Lenders for each fiscal year are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) days after such approvalapproval and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
(iv) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared revenue report 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, including confirmation that Borrower is in compliance with Section 6.8 hereof for the preceding month;
(v) within five (5) days of delivery, copies of all material written statements, reports and notices made available generally to Borrower’s security holders or 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vivii) prompt notice of any material changes to the capitalization table of Borrower and of any amendments or other changes to the Operating Documents of Borrower or any of its Subsidiaries; and, together with at the request of Collateral Agent or any Lender, Borrower shall promptly provide to Collateral Agent and each Lender, copies reflecting of such amendments or changes with respect thereto;
(viiviii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiiix) 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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ixx) other financial 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 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, 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 forty-five (3045) days after the last day of each monthfiscal quarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.;
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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, Loan and Security Agreement (ConforMIS Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one two hundred eighty seventy (180270) days after the last day of ParentBorrower’s fiscal year year, or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “provided, however, Borrower’s unqualified opinion on financial statements may contain a qualification as to going concern” solely in connection with the need concern typical for venture backed companies similar to raise equity and negative profitsBorrower);
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalapproval and the term “Annual Projections” shall include such revisions);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower that result in a change of ownership of more than five percent (5%) or any change to the capitalization structure of the preferred shares of Borrower and of any 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) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 Deposit Account or Securities Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (Relypsa Inc), Loan and Security Agreement (Relypsa Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthquarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available (but in no event more than seven (7) days) after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders on or prior to the Effective Date are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries (other than Sorrento HK), which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) 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 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, 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 monthquarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at 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 once 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 (Sorrento Therapeutics, Inc.), Loan and Security Agreement (Sorrento Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)) from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion; provided that certified public accounting firms of recognized national standing shall be acceptable to the Collateral Agent;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such accompanied by annual financial projections that shall be set forth in a quartermonth-by-quarter month format (which, the avoidance of doubt, do not require approval by Borrower’s Board of Directors) (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any 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) prompt notice of: (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (PROCEPT BioRobotics Corp), Loan and Security Agreement (PROCEPT BioRobotics Corp)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries Subsidiaries, for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
; (iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
; (vi) prompt notice in connection with the delivery of each Compliance Certificate of (A) any material change in the composition of the Intellectual Property, (B) notice of any material changes to the capitalization table of Borrower and registration of any changes to the Operating Documents copyright, patent or trademark, including any subsequent ownership right of Borrower or any of its SubsidiariesSubsidiaries in or to any copyright, together with any copies reflecting such amendments patent or changes with respect thereto;
trademark, and (viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) 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 deposit account or securities account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
; and (ixviii) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnotes), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (CareDx, Inc.), Loan and Security Agreement (CareDx, Inc.)
Financial Statements, Reports, Certificates. The Borrower shall deliver to the Administrative Agent (which the Administrative Agent will distribute to each Lender):
(a) Deliver within sixty (60) days after the end of each non-year end fiscal quarter (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Public Parent for such fiscal quarter would be required to each Lender:
be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), (i) the Public Parent’s consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as soon of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures as of the end of and for the corresponding period or periods of the previous fiscal year (to the extent available), but no later than thirty all certified by a Responsible Officer as presenting fairly in all material respects the financial condition and results of operations of the Public Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (30ii) a Compliance Certificate signed by a Responsible Officer;
(b) within one hundred twenty (120) days after the last day of each monthfiscal year (or, a company prepared if earlier, by the date that the Annual Report on Form 10-K of the Public Parent for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), (i) the Public Parent’s audited consolidated balance sheetsheet and related statements of operations, income statement stockholders’ equity and cash flow statement covering flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year (to the extent available), all reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification commentary or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Public Parent and its consolidated Subsidiaries for such month certified on a consolidated basis in accordance with GAAP consistently applied, and (ii) a Compliance Certificate signed by a Responsible Officer Officer;
(c) notice of any change in rating of the Index Debt;
(d) written notice setting forth the details of the event or development requiring such notice and in a form reasonably acceptable any action taken or proposed to Collateral Agentbe taken with respect thereto, upon any officer of any Loan Party obtaining knowledge of the following:
(i) the occurrence of any Event of Default;
(ii) as soon as availablethe filing or commencement of any action, but no later than one hundred eighty (180) days after the last day suit or proceeding by or before any arbitrator or Governmental Authority against or affecting any Loan Party or any of Parent’s fiscal year or within five (5) days of filing with the SECits Affiliates that, audited consolidated financial statements prepared under GAAPif adversely determined, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable could reasonably be expected to Collateral Agent result in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)a Material Adverse Effect;
(iii) as soon as available after approval thereof by Parent’s Board any other development (excluding matters of Directorsa general economic, but no later than sixty (60financial or political nature to the extent that they could not reasonably be expected to have a disproportionate effect on the Loan Parties) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall that has resulted in or would reasonably be set forth expected to result in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”Material Adverse Effect; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);and
(iv) within five (5) days any change in the information provided in the Beneficial Ownership Certification delivered to a Lender that would result in a change to the list of delivery, copies of all statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;beneficial owners identified in such certification; and
(ve) such other financial information as the Administrative Agent or any Lender may reasonably request from time to time. All such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such accountants or officer, as the event that case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods. The Borrower becomes subject will make available such information electronically by any means reasonably determined by the Borrower (including by posting to a non-public, password-protected website maintained by the Borrower or a third party) to the reporting requirements under Administrative Agent and any Lender who provides to the Securities Exchange Act Borrower its email address, employer name and other information reasonably requested by the Borrower. Notwithstanding the foregoing, the obligations in paragraphs (a)(i), (b)(i) and (c) of 1934this Section 6.3 may be satisfied by Public Parent, as amendedthe Borrower, within five (5) days any other Loan Party or one of filing, all reports on their respective parent companies filing a Form 10-K, 10-Q and or 8-K filed K, as applicable, with the Securities SEC or any successor governmental agency and Exchange Commission,
(vi) prompt providing notice of any material changes the same to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Administrative Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressLenders.
(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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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: Credit Agreement (Blue Owl Capital Inc.), Credit Agreement (Blue Owl Capital Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) (A) prior to Borrower’s initial public offering and sale of its common stock or other common voting equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended (“IPO”), as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated and consolidating, if applicable, balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent; and (B) after Borrower’s IPO, 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, if applicable, 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) (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 forty-five (45) days after the last day of each quarter, as applicable, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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.
(d) Deliver to Collateral Agent and Alexandria Real Estate, as soon as available, but no later than (i) thirty (30) days after the end of each fiscal quarter during which any of the following are in effect: Borrower’s lease or license agreement for such premises and/or Collateral Agent’s agreement with the landlord of such premises, and (ii) thirty (30) days after the last day of each month in which Borrower has delivered in excess of One Hundred Thousand Dollars ($100,000) worth of new Collateral to the properties located at 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxx, XX 00000 and/or 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000, an updated, fully comprehensive, Exhibit A to the applicable landlord lien waiver among Alexandria Real Estate, Borrower and Collateral Agent.
(e) Deliver to Collateral Agent and the landlord of the leased premises located at 0000 Xxx Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, as soon as available, but no later than (i) thirty (30) days after the end of each fiscal quarter during which any of the following are in effect: Borrower’s lease or license agreement for such premises and/or Collateral Agent’s agreement with the landlord of such premises, and (ii) thirty (30) days after the last day of each month in which Borrower has delivered in excess of One Hundred Thousand Dollars ($100,000) worth of new Collateral to such leased premises, an updated, fully comprehensive, Exhibit A to the applicable landlord lien waiver among such landlord, Borrower and Collateral Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Xeris Pharmaceuticals Inc), Loan and Security Agreement (Xeris Pharmaceuticals Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than (x) at all times prior to the IPO, thirty (30) days after the last day of each monthmonth and (y) at all times after the IPO, forty-five (45) days after the last day of each fiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent; Notwithstanding anything in this Agreement to the contrary, the Borrower shall not be required to deliver consolidating financial information for any period prior to January 1, 2016, unless such financial information (including consolidating revenue figures by entity) is otherwise prepared by Borrower;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an Xxxxx Xxxxxxxx or another independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)Agent;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day March 31 of Parent’s fiscal yearseach year, ParentBorrower’s annual financial projections (including an operating budget) for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections and budget shall be set forth in a quartermonth-by-quarter month format (such annual financial projections and budget as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven ten (710) days after such approvalapproval and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
(iv) within thirty (30) days of approval by Borrower’s Board of Directors, any 409(a) valuations with respect to Borrower’s equity securities;
(v) within five (5) days of delivery, copies of all material written statements, reports and notices made available generally to Borrower’s security holders or 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vivii) prompt notice of (a) any material changes to the capitalization table of Borrower and of any amendments or other changes to the Operating Documents of Borrower or any of its Subsidiaries, Subsidiaries and (b) together with its monthly Compliance Certificate, notice of any material amendments of or other material changes to the capitalization table of Borrower or any of its Subsidiaries; and, at the request of Collateral Agent or any Lender, Borrower shall promptly provide to Collateral Agent and each Lender, copies reflecting of such amendments or changes with respect thereto;
(viiviii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiiix) 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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixx) other financial 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 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, 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 (x) at all times prior to the IPO, thirty (30) days after the last day of each monthmonth and (y) at all times after the IPO, forty-five (45) days after the last day of each fiscal quarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.Certificate;
(c) Deliver to Bank a Transaction Report (and any schedules related thereto), with (i) aged listings of accounts receivable and accounts payable (by invoice date), (ii) an inventory report, and (iii) a deferred revenue report (i) with each request for an Advance, (ii) no later than Friday of every other calendar week (i.e. biweekly) when a Streamline Period is not in effect, and (iii) within thirty (30) days after the end of each month when a Streamline Period is in effect;
(d) Concurrently with the Compliance Certificate delivered at any time on and after any change in GAAP after the Effective Date that recharacterizes the treatment of real estate leases or operating leases as capital leases, disclosure of Borrower’s total liabilities under real estate leases, operating leases and capital leases, respectively;
(e) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (ConforMIS Inc), Loan and Security Agreement (ConforMIS Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other material changes to the capitalization table of Borrower (for so long as Borrower is not subject to the reporting requirements under the Securities Exchange Act of 1934, as amended) and any amendments of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty forty five (3045) days after the last day of each monthquarter, copies of the month-end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 forty five (3045) days after the last day of each monthquarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Auspex Pharmaceuticals, Inc.), Loan and Security Agreement (Auspex Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthcalendar quarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries Subsidiaries, for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one the earlier of (x) two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year or within (y) five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by Parent’s Board of Directorsavailable, but no later than the earlier of (x) seven (7) days after approval thereof by Borrower’s Board of Directors or (y) sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter quarterly format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 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 (A) any material changes to change in the capitalization table composition of Borrower the Intellectual Property, and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiB) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiivii) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthcalendar quarter, copies of the month-end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries for the immediately preceding quarterly period, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixviii) other financial 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 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, 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 and (30ii) days after the last day of each monthabove, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Halozyme Therapeutics Inc), Loan and Security Agreement (Halozyme Therapeutics Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries Subsidiaries, together with aged listings by invoice date of accounts receivable and accounts payable, for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty ninety (180190) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection discretion; provided that, an internally prepared consolidating trial balance statement shall be provided with the need to raise equity and negative profits)audited financial statements;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format and are consolidated with regards to Security Corp. (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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.
(d) Deliver to Collateral Agent and Alexandria Real Estate, as soon as available, but no later than (i) thirty (30) days after the end of each fiscal quarter and (ii) thirty (30) days after the last day of each month in which Borrower has delivered in excess of One Hundred Thousand Dollars ($100,000.00) worth of new Collateral to the property located at the ARE Leased Location, an updated, fully comprehensive, Exhibit A to the landlord lien waiver among Alexandria Real Estate, Borrower and Collateral Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Selecta Biosciences Inc), Loan and Security Agreement (Selecta Biosciences Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 (and consolidating, if applicable) balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (provided that Borrower’s unqualified opinion on financial statements may contain a qualification as to going concern typical for venture backed or other than any “going concern” solely in connection with the need privately financed companies similar to raise equity Borrower so long as no Event of Default has occurred and negative profitsis continuing);
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty the earlier of (60x) thirty (30) days after the last day of Parenteach of Borrower’s fiscal yearsyears or (y) seven (7) days after approval by Borrower’s Board of Directors, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of (A) any material changes to the capitalization table amendments of Borrower and of any or other changes to the Operating Documents of Borrower or any of its SubsidiariesSubsidiaries and (B) prior to the initial, underwritten public offering and sale of Borrower’s common stock pursuant to an effective registration statement under the Securities Act of 1933, as amended, any material changes to the capitalization table of Borrower, in each case, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries that are co-borrowers or Guarantors, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (Tocagen Inc), Loan and Security Agreement (Tocagen Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries Subsidiaries, for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval review thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,;
(vi) prompt notice of (A) any material changes to change in the capitalization table composition of Borrower and the Intellectual Property, (B) notice of the registration of any changes to the Operating Documents copyright, including any subsequent ownership right of Borrower or any of its SubsidiariesSubsidiaries in or to any copyright, together with any copies reflecting such amendments patent or changes with respect thereto;
trademark, and (viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiivii) 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 deposit account or securities account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(viii) Within ninety (90) days after the end of each fiscal year of Borrower, andand at such other times as MidCap may reasonably request to the extent related to SBA regulations, Borrower shall provide to MidCap such forms and financial and other information with respect to any business or financial condition of Borrower or any of its Subsidiaries required by the SBA, including, but not limited to (i) forms and information with respect to MidCap’s or any Lender’s reporting requirements under SBA Form 468 (attached hereto as Exhibit F) and (ii) information regarding the full-time equivalent jobs created or retained in connection with any Lender’s investment in Borrower, the impact of the financing on Borrower’s business in terms of revenues and profits and on taxes paid by Borrower and its employees.
(ix) Upon request of MidCap, the Borrower shall use commercially reasonable efforts to promptly (and in any event within twenty (20) days of such request) furnish to MidCap all information reasonably requested, to the extent reasonably available to the Borrower in order for MidCap or any Lender to comply with the requirements of 13 C.F.R. Section 107.620 or to prepare or file SBA Form 468 and any other information requested or required by the SBA;
(x) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries in all material respects shall be made of all dealings and transactions in relation to its business and activities. 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 (Acceleron Pharma Inc), Loan and Security Agreement (Acceleron Pharma Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and, if applicable and to the extent prepared by Borrower, consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “discretion; provided that that such unqualified opinion may include going concern” solely in connection with the need concern explanatory language as it relates to raise equity and negative profits)Borrower’s cash level;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty forty-five (6045) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 written statements, reports and notices generally made available to Borrower’s security holders or holders of Subordinated Debt, in such holders’ capacities as security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt together with the Compliance Certificate delivered pursuant to Section 6.2(b), notice of any material amendments of or other material changes to the capitalization table of Borrower and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; provided, however, Borrower shall also upon Collateral Agent’s request, promptly deliver to Collateral Agent its then current capitalization table;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (subject, in the case of unaudited financial statements, to normal year-end adjustments to reflect actual expenses incurred that are paid in or to be paid in cash (provided, however, the aggregate amount of year-end adjustments in any given year with respect to such actual expenses incurred that are paid in or to be in paid in cash shall not exceed Two Hundred Thousand Dollars ($200,000.00)) and merger consolidation adjustments and the absence of footnotes, and provided further that such unaudited financial statements shall not include the noncash impact of accounting for stock compensation or other non-cash equity items), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
(d) Deliver to Collateral Agent and Alexandria Real Estate, as soon as available, but no later than (i) thirty (30) days after the end of each fiscal quarter and (ii) thirty (30) days after the last day of each month in which Borrower has delivered in excess of One Hundred Thousand Dollars ($100,000) worth of new Collateral to the property located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, an updated, fully comprehensive, Exhibit A to the landlord lien waiver among Alexandria Real Estate, Borrower and Collateral Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Sigilon Therapeutics, Inc.), Loan and Security Agreement (Sigilon Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
Bank; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an Ernst & Young LLP or another independent certified public accounting firm acceptable to Collateral Agent Bank in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
; (viv) 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower’s or another website on the internet; (viv) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event Subsidiaries that could reasonably be expected result in damages or costs to materially and adversely affect the value Borrower or any of the Intellectual Property;
its Subsidiaries of One Hundred Thousand Dollars (viii$100,000.00) as soon as availableor more; (vi) annually, but no later than thirty the earlier of (30A) ten (10) days after approval thereof by the Board, or (B) forty-five (45) days after the last day of each monthBorrower’s fiscal year, copies of the monthand contemporaneously with any updates thereto, Board-end account statements for each Collateral Account maintained by Borrowerapproved annual financial budget; and (vii) budgets, which statements may be provided to Collateral Agent sales projections, operating plans and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressBank.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than Within thirty (30) days after the last day of each month, deliver to each LenderBank with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance , together with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost a summary 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’s clinical trials.
Appears in 2 contracts
Samples: Loan and Security Agreement (Fate Therapeutics Inc), Loan and Security Agreement (Fate Therapeutics Inc)
Financial Statements, Reports, Certificates. (a) Deliver BDSI 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 monthcalendar quarter, a company prepared and unaudited consolidated balance sheet, income statement and cash flow statement covering the BDSI’s and its Subsidiaries’ consolidated operations of Parent and its Subsidiaries for such month calendar quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBDSI’s fiscal year or within five year, (5x) days of filing with the SEC, BDSI’s audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely it being agreed that Xxxxxx Xxxxxxx LLP is acceptable to Agent) and (y) unaudited consolidating financial statements prepared by BDSI covering BDSI’s and its Subsidiaries’ operations for such year prepared under GAAP, consistently applied, certified by a Responsible Officer and in connection with the need a form reasonably acceptable to raise equity and negative profits);
Agent; (iii) as soon as available after approval thereof by Parentany Credit Party’s Board of Directorsgoverning board, but no later than sixty forty-five (6045) days after the last day of Parentsuch Credit Party’s fiscal yearsyear, Parentand as amended and/or updated, such Credit Party’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”year; provided that, any revisions of the Annual Projections approved by Parent’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 (or, so long as BDSI remains subject to the reporting requirements under the Exchange Act, a link thereto on such Credit Party’s or another website on the Internet) all statements, reports and notices made available to Borrowerall of any Credit Party’s security holders or to any holders of Subordinated Debt;
; (v) in the event that Borrower any Credit Party is or becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amendedAct, within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
SEC or a link thereto on such Credit Party’s or another website on the Internet; (vi) prompt notice of any material changes to the capitalization table of Borrower operating plans and of any changes to the Operating Documents of Borrower other financial information reasonably requested by Agent or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
Lender; (vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 Borrowerany Credit Party, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s); and (viii) such additional information, and
(ix) other information reports or statements regarding the Credit Parties or their respective businesses as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required Lender may from time to be delivered pursuant to the 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addresstime reasonably request.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than Within thirty (30) days after the last day of each monthcalendar quarter, Xxxxxxxx shall deliver to Agent and each LenderLender with the quarterly financial statements described above, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep Borrower shall cause each Credit Party to keep proper books of record and account in accordance with GAAP in all material respects, in which full, true GAAP. Upon reasonable prior written notice and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 which such limitations shall be required when an not apply if a Default or Event of Default has occurred and is continuingoccurred), Borrower shall allow, and cause each Credit Party to allow, Agent and Lenders to visit and inspect any properties of its propertiesa Credit Party, to examine and make abstracts or copies from any of its books and recordsCredit Party’s books, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted Collateral to verify the amount and age of the accounts, the identity and credit of the respective account debtors (it being agreed that so long as no more often than twice every year unless (and more frequently if) an Default or Event of Default has occurred and or is continuing, neither Agent nor any Lender shall make contact with any account debtor or other contract party of any Borrower without the prior consent of such Borrower), to review the billing practices of the Credit Party and to discuss its respective affairs, finances and accounts with their respective officers, employees and independent public accountants as often as may reasonably be desired. Borrower shall reimburse Agent and each Lender for all reasonable costs and expenses associated with such visits and inspections; provided, however, that Borrower shall be required to reimburse Agent and each Lender for such costs and expenses for no more than one (1) such visit and inspection per twelve (12) month period unless a Default or Event of Default has occurred during such period.
(d) Borrower shall, and shall cause each Credit Party to, deliver to Agent and each Lender, within *** 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 effect on any of the Required Permits which are material to Borrower’s business or otherwise on the operations of Borrower or any of its Subsidiaries.
Appears in 1 contract
Samples: Credit and Security Agreement (Biodelivery Sciences International Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made generally available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other material changes to the capitalization table of Borrower (provided that, for the avoidance of doubt, no such updates to any Lender shall required with respect to option grants), and of any amendments or 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year twelve months unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Aviragen Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Lenders: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and cash flow statement covering the Borrower's 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) as soon as available, but no later than one hundred eighty (180) days after the last day of Parent’s Borrower's fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than with a "going concern" qualification relating to the need for future additional equity or debt financing) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with it being understood that Ernst & Young LLP, Borrower's certified public accounting firm on and as of the need Effective Date is acceptable to raise equity and negative profitsCollateral Agent);
; (iii) as soon as available after approval thereof by Parent’s Board of Directorsavailable, but no later than sixty ten (6010) days after the last day of Parent’s Borrower's fiscal yearsyear, Parent’s annual Borrower's financial projections for the entire current fiscal year as approved by Parent’s Board Borrower's Boards of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to all of Borrower’s 's security holders or to any 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower's or another website on the Internet; (vi) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with Subsidiaries that could result in damages or costs to Borrower or any copies reflecting such amendments of its Subsidiaries of Two Hundred Thousand Dollars ($200,000) or changes with respect thereto;
more; and (vii) prompt notice of any event that could reasonably be expected to materially such other budgets, sales projections, operating plans and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial information as reasonably requested by Collateral Agent or any LenderLenders. Notwithstanding Without limiting the foregoing, documents required Borrower shall deliver to be delivered Lenders, concurrently with the delivery of any financial statements pursuant to clause (a) above, a copy of the terms hereof (to the extent any such documents are included in materials bank and/or investment account statements issued by or otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on available from each institution at which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressany Subsidiary maintains any Collateral Account.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than Within thirty (30) days after the last day of each month, deliver to each LenderCollateral Agent with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to each LenderProvide the Lender with the following:
(ia) as soon as available, but no later than thirty and in any event within forty-five (3045) days after the last day end of each monthfiscal quarter of Parent (or such longer period as the Lender may agree in writing (including via email)), a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the consolidated operations of Parent and its Subsidiaries Subsidiaries’ consolidated operations for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agentthe Lender;
(iib) as soon as available, but no later than and in any event within one hundred eighty fifty (180150) days after following the last day end of Parent’s fiscal year (or within five such longer period as the Lender may agree in writing (5) days of filing with the SECincluding via email)), audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion without a “going concern” qualification (except as resulting from the impending maturity of any Indebtedness) on the financial statements from an KPMG LLP, or such other independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)Lender;
(iiic) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty within thirty (6030) days after the last day end of each fiscal year of Borrower (or such longer period as the Lender may agree in writing (including via email)), or more frequently as updated by Parent’s board of directors, (A) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal yearsyear of Parent and its Subsidiaries, Parent’s and (B) annual financial projections for the entire current following fiscal year (on a quarterly basis) as approved by Parent’s Board board of Directorsdirectors, which together with any related business forecasts used in the preparation of such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval)projections;
(ivd) for so long as Parent is subject to the reporting requirements under the Exchange Act within five (5) days of deliveryfiling (or such longer period as the Lender may agree in writing (including via email)), copies of all statementsperiodic and other reports, reports proxy statements and notices made available other materials filed by Parent with the SEC, any Governmental Authority succeeding to Borrower’s security holders any or holders all of Subordinated Debt;
(v) in the event that Borrower becomes subject functions of the SEC or with any national securities exchange, or distributed to the reporting requirements under the Securities Exchange Act of 1934its shareholders, as amended, 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) prompt notice of any material changes to the capitalization table of Borrower and of any changes to the Operating case may be. Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower Parent posts such documents, or provides a link thereto, on BorrowerParent’s website on the internet Internet at BorrowerParent’s website address.; provided, however, that Parent shall promptly notify the Lender in writing (which may be by electronic mail) of the posting of any such documents;
(be) Concurrently within five (5) days of delivery (or such longer period as the Lender may agree in writing (including via email)), copies of (x) all material statements, reports and notices made available to any of the Parent’s security holders or to any holders of any Material Indebtedness (including the holders of the Convertible Notes) and (y) notices of conversion of the Convertible Notes delivered thereunder;
(f) Promptly, and in no event no later than three (3) Business Days (or such longer period as the Lender may agree in writing (including via email)) upon any Responsible Officer of Borrower obtaining knowledge thereof, notify the Lender of the following:
(i) the occurrence of any Default or Event of Default;
(ii) any filing or commencement, or written threat to commence, any action, suit or proceeding by any Loan Party (excluding actions, suits or proceedings by any Loan Party (A) in connection with the enforcement of its Intellectual Property Rights and (B) in defense of challenges to its immaterial Intellectual Property Rights; provided, that in the case of challenges to any Loan Party’s immaterial Intellectual Property Rights that are (x) subject to any Technology License Agreement and/or (y) necessary for the operation of the Georgia Facility or the Rhode Island Facility, notice of the initial filing only shall be required) or against any Loan Party or by any Governmental Authority, in each case, that would reasonably be expected to result in monetary damages to such Loan Party or any of its Subsidiaries of, individually or in the aggregate, in excess of $750,000, seeks injunctive relief (including with regard to any Intellectual Property of any Loan Party subject to the preceding parenthetical) or that would reasonably be expected to result in an Event of Default under Section 7.6;
(iii) any matter that has resulted or could reasonably result be expected to result in a Material Adverse Effect;
(g) notice of (x) an equity investment in any of the Loan Parties promptly following the consummation of such investment and (y) the incurrence of any Permitted Indebtedness pursuant to clauses (c), (g), (j), (k) (if related to the Project), or (l) of the definition thereof (or any refinancing of the foregoing Indebtedness pursuant to clause (i) of the definition thereof), and subject to any other notice periods set forth thereof, at least five (5) Business Days (or such shorter period as the Lender may agree in writing (including via email)) prior to the incurrence of such Indebtedness (provided, that the foregoing limitation does not apply to any obligations of any Loan Party under any commercial agreement with General Motors);
(h) other financial information reasonably requested by the Lender and reasonably available to Borrower;
(i) if a Loan Party is not now a Registered Organization but later becomes one, such Loan Party shall promptly notify the Lender of such occurrence and provide the Lender with such Loan Party’s organizational identification number (if available from the relevant jurisdiction);
(j) concurrently with the delivery of the financial statements specified in documents required under Section 6.2(a)(i5.2(a) above but no later than thirty (30) days after the last day of each monthand 5.2(b), Borrower shall deliver to each Lenderan updated Perfection Certificate, a duly completed Compliance Certificate signed by a Responsible Officer.Officer of Borrower, (i) setting forth the information required pursuant to the Perfection Certificate and indicating any changes in such information from the most recent Perfection Certificate delivered pursuant to this clause (j) (or, prior to the first delivery of a Perfection Certificate pursuant to this clause (j), from the Perfection Certificate delivered on the Closing Date) or (ii) certifying that there has been no change in such information from the most recent Perfection Certificate delivered pursuant to this clause (j) (or, prior to the first delivery of a Perfection Certificate pursuant to this clause (j), from the Perfection Certificate delivered on the Closing Date);
(ck) Keep proper books promptly, and in no event no later than five (5) Business Days (or such longer period as the Lender may agree in writing (including via email)) after receipt of record the same by Xxxxxxxx, Borrower shall deliver to the Lender the monthly Progress Status Report provided to the Loan Parties by Xxxx Project Solutions, substantially in the same form of the report provided to the Lender by Xxxxxxxx on September 22, 2022; and
(l) on and account after the first funding of any Term Loan, within five (5) Business Days (or such longer period as the Lender may agree in accordance with GAAP writing (including via email)) after the end of each fiscal month, an updated budget tracking template in all material respectsthe form of the “summary budget and tracker” tab of the Excel file provided by Borrower to the Lender on November 22, in which full2022; provided, true and correct entries that, for purposes of this Section 5.2, none of Parent or its Subsidiaries shall be made required to disclose or provide any information (i) that constitutes non-financial trade secrets or non-financial proprietary information of all dealings and transactions any Person, (ii) in relation respect of which disclosure to the Lender (or any of its business and activities. Borrower shallParty Representatives) is prohibited by applicable law, and shall cause each (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which Parent or any of its Subsidiaries toowes confidentiality obligations to any third party (provided, allowfurther that such confidentiality obligations were not entered into in contemplation of the requirements of this Section 5.2); provided, at further, that notwithstanding the sole cost of Borrowerforegoing, Collateral Agent the obligations in Section 5.2(a) and (b) may be satisfied with respect to information filed by Parent with any securities exchange or with the SEC or any Lender, during regular business hours upon reasonable prior notice analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (provided that no notice including Form 10-Q Reports and Form 10-K reports) and shall be required when an Event deemed to have been delivered on the date on which such items have been made available on the SEC website or the website of Default has occurred and is continuingthe relevant analogous governmental or private regulatory authority or securities exchange (including, for the avoidance of doubt, by way of “XXXXX”), 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 Agreement (Aspen Aerogels Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthfiscal quarter of Borrower, a company prepared consolidated and consolidating balance sheet, sheet and income statement and a consolidated cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral AgentAgent (it being understood by the parties that such quarterly financial statements shall be in draft form until Borrower files the related periodic report on Form 10-Q (or Form 10-K) with the SEC);
(ii) as soon as available, but no later than the earlier of (x) one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within (y) five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
(d) Provide Collateral Agent and the Lenders with continuous access to Borrower’s Books by providing the Person designated, and for whom an email address is provided, by each of Collateral Agent and each Lender (as such Persons and email addresses may from time to time be updated by Collateral Agent or such Lender, as applicable) with access to Borrower’s QuickBooks accounts; provided that Collateral Agent and the Lenders agree not to utilize such access to Borrower’s QuickBooks accounts unless an Event of Default shall have occurred and be continuing; provided further that Borrower shall not modify such access procedure or the location of such Borrower’s Books without providing prior written notice to the Lenders and ensuring that the Lenders have continuous access to such Borrower’s Books.
Appears in 1 contract
Samples: Loan and Security Agreement (Minerva Neurosciences, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to Administrative Agent (who will forward the same to each Lender:
): (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company Borrower prepared consolidated balance sheetsheet and income statement, income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for during such month in a form acceptable to Administrative Agent setting forth in each case in comparative form the figures as of the end of and for the corresponding month of the previous Fiscal Year, and certified by a Responsible Officer as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in a form reasonably acceptable accordance with GAAP, subject only to Collateral Agent;
normal year-end audit adjustments and the absence of footnotes; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECFiscal Year, audited consolidated financial statements, including consolidated balance sheet and income statement, statements of retained earnings and shareholders’ equity and cash flow statement covering Borrower’s consolidated operations during the period in a form acceptable to Administrative Agent setting forth in each case in comparative form the figures as of the end of the previous Fiscal Year, prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Administrative Agent in its reasonable discretion (other than discretion, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” solely in connection with or like qualification or exception or any qualification or exception as to the need to raise equity and negative profits);
scope of such audit; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
; (iv) as soon as available, but no later than thirty (30) days after the last day of Borrower’s Fiscal Year, Borrower’s financial projections for the entire current fiscal year as approved by Borrower’s Board of Directors, which such annual projections shall be set forth in a month-by-month format and be in form and content reasonably acceptable to the Lenders (including, without limitation, consolidated balance sheets of the Borrower and its Subsidiaries as at the end of each such month, and the related consolidated statements of income or operations, retained earnings, shareholders’ equity and cash flows for each such month) (such annual projections as originally delivered to Administrative Agent and each Lender, the “Annual Projections”); (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 on Form 10-K, 10-Q and 8-8 K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower’s or another website on the Internet; (vi) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened in writing against Borrower or any of its Subsidiaries, together with Subsidiaries that could result in damages or costs to Borrower or any copies reflecting such amendments of its Subsidiaries of Two Hundred Fifty Thousand Dollars ($250,000) or changes with respect thereto;
more; and (vii) prompt notice of any event that could reasonably be expected to materially such budgets, sales projections, operating plans, board presentations and adversely affect the value of the Intellectual Property;
operating plans (viiiincluding scientific updates) 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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial information as reasonably requested by Collateral Administrative 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 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, 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 Within thirty (30) days after the last day of each month, deliver to each LenderAdministrative Agent, with a copy to the Lenders, with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books No later than thirty (30) days after the last day of record each fiscal quarter, a management discussion and account analysis describing any differences in accordance with GAAP the reported financial results as between the periods covered and that in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shallthe same periods during the immediately preceding Fiscal Year, and as between such periods and the same periods included in the budget delivered pursuant to Section 6.2 above, which shall cause each of its Subsidiaries toinclude, allow, at among any other information or explanation reasonably requested by the sole cost of Borrower, Collateral 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 d) Promptly after the same are available (and is continuingin any event within ten (10) days thereof), deliver to visit Administrative Agent (who will forward the same to each Lender), all reports and inspect written information to and from the United States Environmental Protection Agency, or any of its propertiesstate or local agency responsible for environmental matters, the United States Occupational Health and Safety Administration or any successor agencies or authorities concerning environmental, health or safety matters, and all material reports and written information to examine and make abstracts or copies from any state or local agency responsible for health and safety matters, or any successor agencies or authorities concerning environmental, health or safety matters.
(e) A Transaction Report (and any schedules related thereto): (x) with each request for a Revolving Advance; (y) monthly within thirty (30) days after the last day of its books and recordseach month, when Borrower’s cash on deposit with Bank is equal to or greater than Ten Million Dollars ($10,000,000); or (z) weekly, when Borrower’s cash on deposit with Bank is less than Ten Million Dollars ($10,000,000).
(f) within thirty (30) days after the end of each month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date, and to conduct outstanding or held check registers, if any, (C) monthly reconciliations of accounts receivable agings (aged by invoice date), transaction reports and general ledger, (D) monthly perpetual inventory reports for Inventory valued on a collateral audit first-in, first-out basis at the lower of cost or market (in accordance with GAAP) or such other inventory reports as are requested by Administrative Agent or any Lender in its good faith business judgment; and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every year unless (and more frequently ifE) an Event of Default has occurred and is continuingmonthly deferred revenue reports.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) a. Deliver to each Lender:
(i) i. as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthquarter, a company prepared consolidated and consolidating, if applicable, balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) . as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) . as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter quarter‑by‑quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) in the event that v. while Borrower becomes is subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports 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 material amendments of or other changes to the capitalization table of Borrower and of any 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) . prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration or any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) . as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) . 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) b. Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty forty-five (3045) days after the last day of each monthquarter, deliver to each Lender, Lender a duly completed Compliance Certificate signed by a Responsible Officer.
(c) c. Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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.
d. Deliver to Collateral Agent and Alexandria Real Estate, as soon as available, but no later than thirty (30) days after the end of each fiscal quarter during which any of the following are in effect: Borrower’s lease or license agreement for such premises and/or Collateral Agent’s agreement with the landlord of such premises, and thirty (30) days after the last day of each month in which Borrower has delivered in excess of One Hundred Thousand Dollars ($100,000) worth of new Collateral to the property located at 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000, an updated, fully comprehensive, Exhibit A to the applicable landlord lien waiver among Alexandria Real Estate, Borrower and Collateral Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Xeris Pharmaceuticals Inc)
Financial Statements, Reports, Certificates. (a) Deliver Parent shall deliver to each Lender:
Bank: (i) as soon as available, but no later than five (5) days after filing with the Securities Exchange Commission, Parent’s 10K, 10Q, and 8K reports; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within thirty (30) days after the earlier of the end of each fiscal year or approval thereof by Parent’s board of directors, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Parent’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) at Bank’s reasonable request, a prompt report of any legal actions pending or threatened against a Borrower or any Subsidiary that Borrower reasonably expects could result in a material adverse effect on Borrower’s business, taken as a whole; and (v) at Bank’s reasonable request, budgets, sales projections, operating plans or other financial information. Parent’s 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Parent posts such report or provides a link thereto on Parent’s or another website on the Internet; provided, that Parent shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within forty five (45) days after the last day of each month, a company prepared Parent shall deliver to Bank consolidated monthly balance sheet, income statement sheets covering Borrowers’ and cash flow statement covering the their Subsidiaries consolidated operations of Parent and its Subsidiaries for such month certified together with a duly completed Compliance Certificate signed by a Responsible Officer and of Parent setting forth calculations showing compliance with the financial covenants set forth in a form reasonably acceptable to Collateral Agent;this Agreement.
(iic) as As soon as available, but no later than one hundred eighty fifty (180150) days after the last day of Parent’s fiscal year or within five (5) days of filing with the SECyear, Parent shall deliver to Bank audited consolidated financial statements prepared under GAAPGAAP , consistently applied, covering Borrowers’ and their Subsidiaries consolidated operations, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent Bank in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);discretion
(iiid) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) within Within forty five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (3045) days after the last day of each monthquarter, copies of the month-end Parent shall deliver to Bank (i) a cash balance report, including account statements detailing cash management types of investments held and maturity dates, and (ii) a report of all Permitted Acquisitions in substantially the form attached here to as Exhibit G including an EBITDA calculation for each Collateral Account maintained by Borrower, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressPermitted Acquisition.
(be) 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 Borrowers’ shall allow Bank to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, audit Borrowers’ Collateral 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 CollateralBorrowers’ expense. Such audits shall be conducted no more often than twice once every year twelve (12) months unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Internet Brands, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared unaudited consolidated (and if available, consolidating) balance sheetsheets, statements of income statement or operations and cash flow statement covering the consolidated operations statements of Parent Borrower and its Subsidiaries for as of the end of such fiscal month and that portion of the fiscal year ending as of the close of such fiscal month, certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty forty-five (18045) days after the last day of Parenteach fiscal quarter, unaudited consolidated (and if available, consolidating) balance sheets, statements of income or operations and cash flow statements of Borrower and its Subsidiaries as of the end of such fiscal quarter and that portion of the fiscal year ending as of the close of such fiscal quarter, 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 Borrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iiiiv) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vivii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiviii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiiix) 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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixx) 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 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, 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) and (ii) above but no later than thirty (30) days after the last day of each monthmonth and forty-five days after the last day of each quarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Navidea Biopharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty (30) days after the last day of each quarter (or, if requested by Bank after July 2011, after the last day of each month), a company prepared consolidated balance sheet, income statement and cash flow statement consolidating financial statements covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and period in a the form reasonably acceptable provided to Collateral Agent;
the Major Investors of Borrower; (ii) as soon as available, but no later than one two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated and consolidating financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable of national standing selected by Borrower (provided however for the 2010 fiscal year, such audited financial statements shall be delivered to Collateral Agent Bank no later than two hundred seventy (270) days after the end of Borrower’s 2010 fiscal year and Bank hereby waives the Event of Default that occurred under the Original Agreement due to Borrower’s failure to timely deliver such annual audited financial statements in its reasonable discretion (other than any “going concern” solely in connection accordance with the need to raise equity and negative profitsterms of the Original Agreement);
; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day January 31 of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year budget as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered the form provided to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided thatMajor Investors of Borrower, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security 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 no later than thirty (530) days after the last day of filingeach month when a Streamline Period is in effect or no later than Friday of each week when a Streamline Period is not in effect, all reports on Form 10-Ka Transaction Report, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies monthly accounts receivable agings, aged by invoice date, monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and monthly reconciliations of the month-end account statements for each Collateral Account maintained accounts receivable agings (aged by Borrower, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(sinvoice date), and
and (ixvii) other financial 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressBank.
(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 LenderBank, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any LenderBank, during regular business hours upon reasonable prior notice (provided that no notice shall be required when except while an Event of Default has occurred and is continuing)) up to twice per year, 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, provided that Borrower shall not be obligated to provide access to any information which it reasonably considers to be confidential. Such audits shall be conducted no more often than twice every year unless (and more frequently if) Notwithstanding the foregoing, if an Event of Default has occurred and is continuing, Bank may exercise its rights under this Section 6.2 any number of times per year.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty (30) days after the last day of each quarter (or, if requested by Bank after July 2011, after the last day of each month), a company prepared consolidated balance sheet, income statement and cash flow statement consolidating financial statements covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and period in a the form reasonably acceptable provided to Collateral Agent;
the Major Investors of Borrower; (ii) as soon as available, but no later than one two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated and consolidating financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
of national standing selected by Borrower; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day January 31 of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year budget as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered the form provided to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions Major Investors of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
Borrower (iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
; and (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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressBank.
(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 LenderBank, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any LenderBank, during regular business hours upon reasonable prior notice (provided that no notice shall be required when except while an Event of Default has occurred and is continuing)) up to twice per year, 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, provided that Borrower shall not be obligated to provide access to any information which it reasonably considers to be confidential. Such audits shall be conducted no more often than twice every year unless (and more frequently if) Notwithstanding the foregoing, if an Event of Default has occurred and is continuing, Bank may exercise its rights under this Section 6.2 any number of times per year.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other material changes to the capitalization table of Borrower and any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) 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;
(viiviii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiiix) 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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixx) other information as reasonably requested by Collateral Agent or any LenderLender and generally prepared by Borrower in the ordinary course of business. 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to each LenderCollateral Agent:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthof the first three (3) fiscal quarters, and no later than ninety (90) days after the last day of the fourth (4th) fiscal quarter, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty ninety (18090) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than with respect to going concern so long as no Event of Default has occurred and is continuing) on the financial statements from an Ernst & Young LLP or another independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day January 31 of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections budget for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections budget shall be set forth in a quarter-by-quarter quarterly format (such annual financial projections budget as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 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 material changes to the capitalization table amendments of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, except to the extent delivered pursuant to the applicable Control Agreement(s), copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) 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 SECSecurities 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, 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 Sections 6.2(a)(i) above but no later than thirty (30and 6.2(a)(ii) days after the last day of each monthabove, deliver to each LenderCollateral Agent, a duly completed Compliance Certificate and updated Perfection Certificate(s), signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Lombard Cayman Guarantor and its Subsidiaries (including Borrower) for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, whichever is earlier, audited consolidated financial statements of the Lombard Cayman Guarantor and its Subsidiaries (including Borrower) prepared under GAAPIFRS, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s and Lombard Cayman Guarantor’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors or the Lombard Cayman Guarantor’s Board of Directors, as applicable, 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 statements, reports and notices made available to Borrower’s security 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 on Form 6-K, 10-K, 10-Q and 8-K or other equivalent form filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP IFRS in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Lombard Medical, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to each Lender:
Agent: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for such month during the period certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days for each of filing Borrower’s fiscal years commencing with the SECfiscal year ended 2005 and thereafter, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with provided, however, that Borrower’s 2005 fiscal year audited consolidated financial statements shall include the need to raise equity 2004 fiscal year and negative profitsthe additional time period since the inception of Borrower);
; (iii) annual financial projections approved by Borrower’s Board of Directors consistent in form and detail with those provided to Borrower’s venture capital investors as soon as available after approval thereof by Parent’s Board of Directorsavailable, but no later than sixty thirty (6030) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”approval; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) in the event that the Borrower’s stock becomes publicly held, within five (5) days of deliveryfiling, copies of or electronic links to (in the case of electronic links being provided to Agent, Borrower shall still be required to submit to Agent the applicable compliance certificate in the form of Exhibit E) all statements, reports and notices made available to Borrower’s security holders or to any 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, Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
; (viv) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event Subsidiary that could reasonably be expected to materially result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or more; and adversely affect (vi) budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the value ordinary course of the Intellectual Property;business reasonably requested by Agent.
(viiib) as soon as availableWithin twenty (20) days after the last day of each month, but no later than Borrower shall deliver to SVB a Borrowing Base Certificate signed by a Responsible Officer in the form of Exhibit D with aged listings of accounts receivable and accounts payable (by invoice date).
(c) Within thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrower, which statements may be provided Borrower shall deliver to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the monthly 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.Officer in the form of Exhibit E.
(cd) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation Allow Agent to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, audit Borrower’s Collateral 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’s expense. Such audits shall be conducted no more often than twice once every year six (6) months unless (and more frequently if) an Event of Default has occurred and is continuing. Notwithstanding the foregoing, no Advances under the Revolving Line shall be made prior to the completion of the initial audit (“Initial Audit”).
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver a. Parent shall deliver to each Lender:
(i) i. as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) . as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of Parent’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) . as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty ten (6010) days after the last day of each of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter month‑by‑month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) 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 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 material amendments of or other changes to the capitalization table of Borrower and of any 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) . prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) . as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) . 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) 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) c. Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 written 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing. Borrower shall at Collateral Agent’s or any Lender’s request, allow Collateral Agent or such Lender, as applicable, to access Borrower’s on-line books and records-keeping systems. For the avoidance of doubt, such access to Borrower’s on-line books and records-keeping systems shall not constitute an alternative to the delivery of financial statements or any other statements, reports or documents required to be delivered to the Lenders under this Agreement.
d. Deliver to Collateral Agent and Vanni Business Park, LLC, as soon as available, but no later than (i) thirty (30) days after the end of each fiscal quarter; and (ii) thirty (30) after the last day of each month in which Progenitor Cell Therapy, LLC has delivered in excess of One Hundred Thousand Dollars ($100,000.00) worth of new Collateral to the property located at 000 Xxxxxxxx Xxxxxx, Mountain View, CA 94943 (the “Mountain View Property”), an updated fully comprehensive, Exhibit A to the landlord lien waiver among Vanni Business Park, LLC, Progenitor Cell Therapy, LLC and Collateral Agent. Notwithstanding the foregoing, Borrower shall not be required to deliver an updated Exhibit A pursuant to item (i) above, if, during the applicable time period, there have been no changes to the Collateral at the Mountain View Property.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthof the first three (3) fiscal quarters of the fiscal year, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty the earlier of (180A) ninety (90) days after the last day of ParentBorrower’s fiscal year or and (B) within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an Deloitte LLP or any other independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by Parent89Bio’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of 89Bio’s fiscal years, Parent89Bio’s annual financial projections for the entire current fiscal year as approved by Parent89Bio’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent89Bio’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than (x) thirty (30) days after the last day of each monthof the first two months of each fiscal quarter and (y) forty-five (45) days after the last day of each of the last month of each fiscal quarter, copies of the month-end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) other information as reasonably requested by Collateral Agent or any Lender, except to the extent that disclosure of such information is prohibited by law. 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 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, 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 month-end account statements specified in Section 6.2(a)(i6.2(a)(viii) above but no later than (x) thirty (30) days after the last day of each monthof the first two months of each fiscal quarter and (y) forty-five (45) days after the last day of each of the last month of each fiscal quarter, deliver to each Lender, a duly completed Compliance Certificate Certificate, including month end cash balance sheet, signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries the Guarantors to, allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior written 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30A) (x) [ * ] days after the last day of each monthJanuary and the last month of each fiscal quarter, and (y) [ * ] days after the last day of each month other than January and the last month of each fiscal quarter, a company prepared consolidated and consolidating balance sheet, sheet and income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month and (B) [ * ] days after last day of each quarter, a company prepared cash flow statement prepared on a quarterly basis at the end of each March, June, September and December; each certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) [ * ] days after the last day of ParentBorrower’s fiscal year or within five (5) [ * ] days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than as to going concern or a qualification resulting solely from the scheduled maturity of the Term Loans occurring within one year from the date such opinion is delivered) on the financial statements from an Ernst & Young or another independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) [ * ] days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any 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;; [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 depository, operating and/or investment account(s) maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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)(i6.2(a)(i)(x) 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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 written 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. (a) Deliver Borrower shall deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty forty five (3045) days after the last day of each monthquarter, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower's consolidated operations of Parent during the period, in a form acceptable to Bank and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
Officer; (ii) as soon as available, but no later than one hundred eighty ninety (18090) days after the last day end of Parent’s Borrower's fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
Bank; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 deliveryfiling, copies of all statements, reports and notices made available to Borrower’s 's security holders or to any 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, Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission (vi"SEC"); (iv) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of its SubsidiariesFive Hundred Thousand Dollars ($500,000.00) or more; and (v) budgets, together with any copies reflecting such amendments sales projections, operating plans or changes with respect thereto;other financial information Bank requests.
(viib) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
Within twenty (viii) as soon as available, but no later than thirty (3020) days after the last day of each month, copies Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in the form of the month-end account statements for each Collateral Account maintained by BorrowerExhibit C, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressaged listings of accounts receivable.
(bc) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty Within forty five (3045) days after the last day of each monthquarter, Borrower shall deliver to each Lender, Bank with the quarterly financial statements a duly completed Compliance Certificate signed by a Responsible Officer.Officer in the form of Exhibit D.
(cd) Keep proper books of record and account in accordance with GAAP in all material respectsBank has the right to audit Borrower's Accounts at Borrower's expense, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at but 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 once every year twelve (12) months unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Unless otherwise provided to Lender in its capacity as a stockholder or director of ADMA and in each case only to the extent required to be delivered by ADMA to the lenders under the Loan and Security Agreement and in the form delivered to the lenders under the Loan and Security Agreement:
(a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent ADMA and its Subsidiaries for such month quarter (which may be on Form 10-Q and each year end on Form 10-K, if ADMA is then subject to the periodic reporting requirements of the U.S. Securities Exchange Act of 1934, as amended) certified by a Responsible Officer and in a form reasonably acceptable to Collateral AgentOfficer;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements applied from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than accompanied by any “going concern” solely in connection with the need to raise equity management report and negative profits)opinion from such Auditor;
(iii1) sixty (60) days after Borrower’s fiscal year end, ADMA’s annual financial projections for the entire current fiscal year, which annual financial projections may not have been approved by ADMA's Board of Directors at the time of their transmittal to Lender; and
(2) to the extent not provided under subsection (1) above, as soon as available after approval thereof by ParentADMA’s Board of Directors, but no later than sixty the earlier of (60A) ten (10) days after the last day filing of ParentADMA's Form 10-K with the Securities and Exchange Commission or (B) ninety (90) days after Borrower’s fiscal yearsyear end, ParentADMA’s annual financial projections for the entire current fiscal year as approved by ParentADMA’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format Directors (such annual financial projections as originally delivered to Collateral Agent and the Lenders Lender are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentADMA’s Board of Directors shall be delivered to Collateral Agent and the Lenders Lender no later than seven ten (710) days after such approval);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) in the event that Borrower ADMA becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,;
(viv) prompt notice of any material amendments of or other material changes to the capitalization table of Borrower and of any amendments or 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ixvi) 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 SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower or ADMA posts such documents, or provides a link thereto, on Borrower’s or ADMA’s website on the internet at Borrower’s or ADMA’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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. When an Event of Default has occurred and is continuing, Borrower shall, shall and shall cause each of its Subsidiaries to, allowallow Lender, 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. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral AgentAgent in its reasonable discretion;
(ii) as soon as available, but no later than one hundred eighty the earlier of (180A) ninety (90) days after the last day of ParentBorrower’s fiscal year or (B) within five (5) days Business Days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified (other than a going concern qualification with respect to the maturity of any outstanding Term Loans within the next year) opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty forty-five (6045) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter month‑by‑month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 Business Days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders generally or to any holders of Subordinated Debt (solely in their capacities as security holders or holders of Subordinated DebtDebt and not in any other role);
(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 Business Days of filing, all reports 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 material changes to the capitalization table of Borrower and of any changes amendments to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;; [***] Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE XXXX “[***]”.
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Borrower’s Intellectual Property;; and
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ixi) 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 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, 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 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) Prompt written notice of any changes to the beneficial ownership information that would cause Borrower’s answers set out in Section 13 of the Perfection Certificate (or any equivalent sections of any Perfection Certificate delivered after the Effective Date) to no longer be accurate. 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.
(d) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Viracta Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to Agent, with copies to each Lender:
(i) , each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Agent: as soon as available, but no later than thirty (30) in any event within 30 days after the last day end of each monthmonth during each of Parent’s fiscal years, a company prepared (a) an unaudited consolidated and consolidating balance sheet, income statement, and statement and of cash flow covering Parent’s and its Subsidiaries’ operations during such period, (b) commencing with the month ended October 31, 2012, Plant-Level Financial Statements; and (c) a Compliance Certificate, together with both (i) either (A) copies of all Form 8-Ks that have been filed during such period or (B) written notice in such Compliance Certificate listing the Form 8-Ks that have been filed during such period, and (ii) either (A) any other filings made by Parent or any of its Subsidiaries with the SEC during such period or (B) written notice in such Compliance Certificate listing such other filings that have been made during such period. as soon as available, but in any event within 45 days after the end of each quarter (each such date, the “Quarterly Deadline”) during each of Parent’s fiscal years, (d) an unaudited consolidated and consolidating balance sheet, income statement, and statement of cash flow covering Parent’s and its Subsidiaries’ operations during such period, (e) provided, that if Parent has filed any of the items listed in clause (c) above in its Form 10-Q quarterly report with the SEC by the applicable Quarterly Deadline, then Parent shall (i) provide Agent written notice (in the Compliance Certificate or elsewhere) by the applicable Quarterly Deadline that Parent has filed its Form 10-Q with the SEC and (ii) deliver to Agent by the applicable Quarterly Deadline copies of any items listed in clause (c) above that were not filed with the SEC, (f) provided, further, however, that if Parent has been granted an extension by the SEC for the filing of a Form 10-Q quarterly report, Parent shall deliver to Agent (i) by the applicable Quarterly Deadline, all of the items listed in clause (c) above, (ii) within 2 Business Days of receiving such extension, a copy of such extension and the document that sets forth the extension date on which Parent is required to file the Form 10-Q, and (iii) on the date that the Form 10-Q quarterly report is filed with the SEC, written notice describing the Form 10-Q that was filed with the SEC, and (g) a Compliance Certificate. as soon as available, but in any event within 120 days after the end of each of Parent’s fiscal years (each such date, the “Annual Deadline”), (h) consolidated operations and consolidating financial statements of Parent and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications (including any (i) “going concern” or like qualification or exception, (ii) qualification or exception as to the scope of such audit, or (iii) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management), (i) provided, that if Parent has filed any of the items listed in clause (e) above in its Form 10-K annual report with the SEC by the applicable Annual Deadline, then Parent shall (i) provide Agent written notice (in the Compliance Certificate or elsewhere) by the applicable Annual Deadline that Parent has filed its Form 10-K with the SEC and (ii) deliver to Agent by the applicable Annual Deadline copies of any items listed in clause (e) above that were not filed with the SEC, (j) provided, further, that if Parent has been granted an extension by the SEC for the filing of a Form 10-K annual report, Parent shall deliver to Agent (i) by the applicable Annual Deadline, unaudited consolidated and consolidating financial statements of Parent and its Subsidiaries for such month certified by fiscal year (such unaudited financial statements to include a Responsible Officer balance sheet, income statement, and in a form reasonably acceptable to Collateral Agent;
statement of cash flow), (ii) by the earlier of (A) the date that is 120 days after the end of such fiscal year, and (B) the date that the Form 10-K annual report is filed with the SEC, notice of all of the items listed in clause (e) above that are filed with the SEC (if any) and copies of all of the items listed in clause (e) above that were not filed with the SEC, (iii) within 2 Business Days of receiving such extension, a copy of such extension and the document that sets forth the extension date on which Parent is required to file the Form 10-K, and (iv) on the date that the Form 10-K annual report is filed with the SEC, a copy of the Form 10-K that was filed with the SEC, and (k) a Compliance Certificate. as soon as available, but no later than one hundred eighty (180) in any event within 30 days after prior to the last day start of Parent’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
(iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day each of Parent’s fiscal years, (l) copies of Parent’s annual financial projections and its Subsidiaries’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its Permitted Discretion, for the entire current forthcoming 3 years, year by year, and for the forthcoming fiscal year year, month by month, certified by the chief financial officer of Parent as approved by Parentbeing such officer’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions good faith estimate of the Annual Projections approved financial performance of Parent and its Subsidiaries during the period covered thereby. if and when distributed by Parent’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of Borrower Parent or any of its Subsidiaries, together with (m) any copies reflecting other information that is provided by Parent or any of its Subsidiaries to its shareholders generally (including the New Equity Holders). promptly, but in any event within 5 days after any Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, (n) notice of such amendments event or changes condition and a statement of the curative action that Borrowers propose to take with respect thereto;
. promptly after the commencement thereof, but in any event within 5 days after the service of process with respect thereto on Parent or any of its Subsidiaries, (viio) prompt notice of all actions, suits, or proceedings brought by or against Parent or any event that of its Subsidiaries before any Governmental Authority which could reasonably be expected to materially and adversely affect result in a Material Adverse Effect. upon the value request of the Intellectual Property;
Agent, (viiip) 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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) any other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required to be delivered pursuant relating to the 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, financial condition of Parent or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressits Subsidiaries.
(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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Lenders: (i) as soon as available, but no later than thirty five (305) days after following the last day of each monthdate Borrower files Form 10-Q with the Securities and Exchange Commission, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
quarter, prepared under GAAP, consistently applied (except for the absence of footnotes); (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of Parent’s fiscal year or within five (5) days of filing following the date Borrower files Form 10-K with the SECSecurities and Exchange Commission, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “provided that Lenders acknowledge that a going concern” solely concern qualification, in connection with the need and of itself, will not render such opinion unacceptable to raise equity and negative profitsLenders);
; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter quarterly format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”); provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of (A) any material changes to change in the capitalization table composition of the Intellectual Property, (B) notice of the registration of any copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark, and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiiv) as soon as available, but no later than thirty forty-five (3045) days after the last day of the first two months of each fiscal quarter, Borrower’s unaudited consolidated balance sheet and statement of operations in a form consistent with that used by the Borrower for the condensed financial statements included in the Forms 10-Q filed by the Borrower with the Securities and Exchange Commission prepared in accordance with GAAP, except (A) for the absence of footnotes, (B) that they are subject to normal year-end adjustments, and (C) they do not contain certain non-cash items that are customarily included in quarterly and annual financial statements; (vi) as soon as available, but no later than forty-five (45) days after the last day of each month, copies of the month-end account statements for each Collateral Account deposit account or securities account maintained by BorrowerBorrower or any Subsidiary, which account statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(sbank(s), and
and (ixvii) other financial 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 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, 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), 6.2(a)(ii) above but no later than thirty (30and 6.2(a)(v) days after the last day of each monthabove, as applicable, deliver to each LenderCollateral Agent, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Within five (5) days of filing, provide access (via posting and/or links on Borrower’s website) to all reports on Form 10-K and Form 10-Q filed with the Securities and Exchange Commission (“SEC”) (which shall satisfy Borrower’s reporting requirements under Section 6.2(a)(i) and Section 6.2(a)(ii) above), any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange; and within five (5) days of filing, provide notice and access (via posting and/or links on Borrower’s website) to all reports on Form 8-K filed with the SEC, and copies of (or access to, via posting and/or links on Borrower’s website) all other reports, proxy statements and other materials filed by Borrower with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be.
(d) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all material dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or any Lenderand Lenders, during regular business hours upon reasonable prior notice (provided that no notice shall be required when except while 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 twelve months unless (and more frequently if) an Event of Default has occurred and is continuing.
(e) Collateral Agent and Lenders shall be entitled at reasonable times and intervals to consult with and advise the management and officers of Borrower concerning significant business issues affecting Borrower. Such consultations shall not unreasonably interfere with Borrower’s business operations. The parties intend that the rights granted Collateral Agent and Lenders shall constitute “management rights” within the meaning of 29 C.F.R Section 2510.3-101(d)(3)(ii), but that any advice, recommendations or participation by Lender with respect to any business issues shall not be deemed to give Collateral Agent or Lenders, nor be deemed an exercise by Collateral Agent or Lenders of, control over Borrower’s management or policies.
Appears in 1 contract
Samples: Loan and Security Agreement (Anacor Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower, and its Subsidiaries each of Borrower’s Subsidiaries, for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s, or Borrower’s Subsidiaries’ fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAPGAAP (subject to customary end-of-year adjustments), consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty forty-five (6045) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
Debt provided that, for the avoidance of doubt, such statements, reports or notices shall not include materials provided by Borrower only to Borrower’s Board of 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
, (vi) prompt notice of (A) any material changes to change in the capitalization table composition of the Intellectual Property, (B) notice of the registration of any copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark, and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) 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 deposit account or securities account maintained by Borrower, or any of Borrower’s Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
and (ixviii) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 except while 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. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty ninety-five (18095) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an PriceWaterhouseCoopers or another independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter by quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,, [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, (i) copies of the month-end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s); and (ii) a monthly cash certificate, in the form attached hereto as Annex I; and
(ix) 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 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, 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 forty-five (3045) days after the last day of each monthquarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 written 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. (a) Deliver to 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 balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);11
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter month‑by‑month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 Borrower’s security holders or holders of Subordinated DebtDebt (excluding any materials provided to such security holders or holders of Subordinated Debt solely in their capacity as members of Borrower’s Board of 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 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 material changes to the capitalization table amendments of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) on the next Compliance Certificate following Borrower or any of its Subsidiaries entering into or becoming bound by any material license or agreement with respect to which Borrower or any Subsidiary is the licensee (other than over the counter software that is commercially available to the public), a summary of the same, including any material terms (including but not limited to counter-parties, payments due or payable, term, etc.) related thereto;
(x) prompt notice to Collateral Agent and the Lenders 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;
(xi) without limiting or contradicting any other more specific provision of this Agreement, promptly (and in any event within three (3) Business Days) 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, Borrower shall give written notice to Collateral Agent and the Lenders 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) on the next Compliance Certificate following any returns, recoveries, disputes or claims that involve Inventory of a value of more than Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate in any calendar year, and each One Hundred Thousand Dollars ($100,000.00) in the aggregate thereafter, a summary of the same, including any material terms (including but not limited to counter-parties, nature of the same, amount claimed, etc.) related thereto; and
(ixxiii) other information as reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents documents, notices, or any other materials required to be delivered pursuant to the 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, or provides a link thereto, on Borrower’s website on the internet Internet at Borrower’s website address; provided, however, Borrower shall use commercially reasonable efforts promptly to notify Collateral Agent and each Lender in writing (which may be by electronic mail) of the posting of any such documents, other than those set forth in clauses (ii) and (v), above.
(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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (Aratana Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections budget for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections budget shall be set forth in a quarter-by-quarter month‑by‑month format (such annual financial projections budget as originally delivered to Collateral Agent and the Lenders are is referred to herein as the “Annual ProjectionsBudget”; provided that, any revisions of the Annual Projections Budget approved by ParentBorrower’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 statements, reports and notices made generally available to Borrower’s security 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 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 material changes to the capitalization table amendments of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to 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 balance sheet, sheet and income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than forty five (45) days after the last day of each quarter (other than the last quarter of each fiscal year), a company prepared consolidating balance sheet, income statement and cash flow statement covering the operations of Borrower and its Subsidiaries for such quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(iii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than with respect to a going concern) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iiiiv) as soon as available within the earlier of (X) seven (7) days after approval thereof by ParentBorrower’s Board of Directors, but no later than Directors and (Y) sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 Borrower’s security holders or holders of Subordinated DebtDebt (excluding any materials provided to such security holders or holders of Subordinated Debt solely in their capacity as members of Borrower’s Board of Directors;
(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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vivii) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect theretothereto that would require Borrower to file a report with the Securities and Exchange Commission under the Securities Exchange Act of 1934 if Borrower is subject to the reporting requirements thereof at such time;
(viiviii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiiix) 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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ixx) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (Apricus Biosciences, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than the earlier of seven (7) days after Borrower’s Board of Directors approval thereof, or sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by Parentby, and in the form delivered to, Borrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format Directors (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
, (vi) prompt notice of (A) any material changes to change in the capitalization table composition of the Intellectual Property, (B) notice of the registration of any material copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark, and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) 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 deposit account or securities account maintained by BorrowerBorrower or any Subsidiary, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
and (ixviii) other financial 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(ba) 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.
(cb) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, Collateral Agent or and any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when except while 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
Samples: Loan and Security Agreement (Somaxon Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver Borrowers shall deliver or make available to Agent the following, in each Lendercase in form and substance reasonably satisfactory to Agent:
(ia) as soon as available, but no later than thirty in any event within 20 days after the end of each calendar month, a company prepared consolidated balance sheet and income statement covering Borrowers’ operations during such period, in a form reasonably acceptable to Agent and certified by a Responsible Officer, together with a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C; provided however, that upon the consummation of the Initial Public Offering, the above referenced financial statements shall only be provided within forty-five (3045) days after the end of each fiscal quarter;
(b) within 20 days after the last day of each month, a company prepared consolidated balance sheet, income statement an accounts receivable aging report (against invoice dates) 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 Agentan accounts payable aging report (against invoice dates);
(iic) as soon as available, but no later than in any event within one hundred eighty twenty (180120) days after the last day end of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements of Borrower prepared under in accordance with GAAP, consistently applied, together with an opinion which is unqualified opinion or otherwise consented to in writing by Agent on the such financial statements from of an independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)Agent;
(iiid) as soon as available after approval thereof by Parent’s Board promptly upon receipt of Directorsnotice thereof, but no later than sixty a report of any legal actions pending or threatened in writing against either Borrower or any Subsidiary that is reasonably likely to result in damages or costs to Borrowers or any Subsidiary of Five Hundred Thousand Dollars (60$500,000) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval)or more;
(ive) promptly, and in any event within five (5) days Business Days after the discovery thereof, a report signed by a Responsible Officer notifying Agent of deliveryan Event of Default or of any material labor dispute, copies of all statementsmaterial tax dispute, reports and notices made available to or any change in any Borrower’s security holders Chairman, President, Chief Executive Officer, Chief Financial Officer, or holders of Subordinated DebtChief Technology Officer;
(vf) in the event that Borrower becomes as frequently as desired by Borrowers subject to Agent’s consent thereto, updates of (i) the reporting requirements under Schedule and (ii) the Securities Exchange Act representations and warranties in Section 5 to reflect changes since the most recent making of 1934, as amended, within five (5) days of filing, all reports on Form 10-K, 10-Q such representations and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect theretowarranties;
(viig) prompt notice within 30 days of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty (30) days after the last day of each monthfiscal quarter, copies a report signed by Borrowers, in form reasonably acceptable to Agent, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights, or Trademarks and the month-end account statements for each Collateral Account maintained status of any outstanding applications or registrations, as well as any material change in any Borrowers’ Intellectual Property Collateral, including any subsequent ownership right of Borrowers in or to any Trademark, Patent, or Copyright not specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to Agent by Borrower, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), Borrowers in connection with this Agreement; and
(ixh) within 15 days after written request, such budgets, sales projections, operating plans, or other financial information as Agent may reasonably requested by Collateral Agent or any Lender. Notwithstanding the foregoing, documents required request from time to be delivered pursuant to the 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addresstime.
(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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to 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 and consolidating balance sheet, sheet and income statement and cash flow statement covering the consolidated operations of Parent Borrower, and its Subsidiaries each of Borrower’s Subsidiaries, for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent and no later than thirty (30) days after the last day of each quarter, a company prepared cash flow statement covering the consolidated operations of Borrower, and each of Borrower’s 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 one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements of Borrower prepared under GAAP, consistently applied, together with an unqualified opinion (or an opinion qualified only as to going concern) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-8 K filed with the Securities and Exchange Commission,
Commission (provided that documents required to be delivered pursuant to this clause (v) shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address); (vi) prompt notice of (A) any material changes to change in the capitalization table composition of the Intellectual Property, (B) notice of the registration of any copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark, and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) 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 deposit account or securities account maintained by Borrower, or any of Borrower’s Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
; and (ixviii) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 except while 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
Samples: Loan and Security Agreement (Sunesis Pharmaceuticals Inc)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Collateral Agent: (i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthof its first three fiscal quarters, a company prepared consolidated financial statements prepared under GAAP (except for the absence of footnotes and subject to normal year-end adjustments), consistently applied and consolidating balance sheet, and income statement and cash flow statement covering the consolidated operations of Parent Borrower, Guarantor, and its their respective Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than a “going concern” qualification) on the financial statements from an a nationally-recognized independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
firm; (iii) as soon as available after approval thereof by Parent’s Board of Directorsavailable, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections budget, in a form reasonably acceptable to Lenders, for the entire current fiscal year (on a quarterly basis) as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission (other than confidential treatment requests), which documents may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower provides Collateral Agent with a link thereto on Borrower’s website, (vi) prompt notice of (A) any material changes adverse change in the composition of the Intellectual Property that is material to Borrower’s business, (B) the capitalization table of Borrower and invalidation of any changes material patent of borrower that is material to the Operating Documents of Borrower or any of its SubsidiariesBorrower’s business, together with any copies reflecting such amendments or changes with respect thereto;
and (viiC) prompt notice Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account bank statements for each Collateral Account deposit account or securities account maintained by Borrower, or Guarantor or any Subsidiary, which bank statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(sbank(s), and
and (ixviii) other financial 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressAgent.
(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 monthabove, deliver to each LenderCollateral Agent, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of BorrowerBorrower (not to exceed $1,200 per day, excluding out-of-pocket expenses), Collateral Agent or any Lenderand Lenders, during regular business hours upon reasonable prior notice (provided that no notice shall be required when except while 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 twelve months unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty (30) days after the last day of each monthReconciliation Period, a company prepared consolidated cash based profit & loss including month end cash balance sheet(detailed by bank account), income statement and cash flow statement covering the consolidated operations of Parent and its Subsidiaries for such month monthly bookings (detailed by product type), all certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
Bank; (ii) as soon as available, but no later than one hundred eighty thirty (18030) days after the last day of Parenteach calendar quarter, a company prepared consolidated financial statements, including cash flow, profit & loss and income statement covering Borrower’s consolidated operations during the period, all certified by a Responsible Officer and in a form acceptable to Bank; (iii) as soon as available, but no later than one hundred fifty (150) days after the last day of Borrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under in accordance with GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion Bank (other than provided that any “going concern” solely in connection firm associated with the need “Big Four” accounting firms or an affiliate thereof is deemed acceptable to raise equity and negative profitsBank);
(iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval);
(iv) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act, within five (5) days of deliveryfiling, copies of all statements, reports and notices made available to Borrower’s security holders or to any 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, Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
SEC; (v) a prompt report of any legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of Seventy Five Thousand Dollars ($75,000.00) or more; (vi) prompt notice as soon as available, and at least annually, within ten (10) days of approval by Borrower’s board of directors, and contemporaneously with any material changes to the capitalization table updates or amendments thereto, annual financial projections approved by Borrower’s board of Borrower and of any changes to the Operating Documents of Borrower or any of its Subsidiariesdirectors, together with any copies reflecting related business forecasts used in the preparation of such amendments or changes with respect thereto;
annual financial plans and projections; (vii) as soon as available, and at least annually, within ten (10) days of approval by Borrower’s board of directors, and contemporaneously with any updates or amendments thereto, capitalization tables or other financial information reasonably requested by Bank; (viii) as soon as available, and at least annually, within ten (10) days of approval by Borrower’s board of directors, and contemporaneously with any updates or amendments thereto, budgets, sales projections, operating plans or other financial information reasonably requested by Bank; and (ix) copies of all notices (including Borrower’s board of directors presentations), minutes, consents and other materials that it provides to its board of directors at the same time they are delivered to the directors.
(b) Within thirty (30) days after the last day of each Reconciliation Period, deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit B.
(c) Provide Bank prompt written notice of (i) any material change in the composition of the Intellectual Property, (ii) the registration of any Copyright, including any subsequent ownership right of Borrower in or to any Copyright, Patent or Trademark not shown in the IP Agreement or the ISR Debentures, and (iii) Borrower’s knowledge of an event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to each Lender:
Lenders: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the Borrower’s 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) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than with a “going concern” qualification relating to the need for future additional equity or debt financing) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with it being understood that Ernst & Young LLP, Borrower’s certified public accounting firm on and as of the need Effective Date is acceptable to raise equity and negative profitsCollateral Agent);
; (iii) as soon as available available, but no later than seven (7) days after approval delivery thereof by Parentto Borrower’s Board of Directors, but and in any event no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directorsyear, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalconcurrently with the delivery thereof to Borrower’s Board of Directors);
; (iv) within five (5) days of delivery, copies of all statements, reports and notices made available to all of Borrower’s security holders or to any 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower’s or another website on the Internet; (vi) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with Subsidiaries that could result in damages or costs to Borrower or any copies reflecting such amendments of its Subsidiaries of Two Hundred Thousand Dollars ($200,000) or changes with respect thereto;
more; and (vii) prompt notice of any event that could reasonably be expected to materially such other budgets, sales projections, operating plans and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial information as reasonably requested by Collateral Agent or any LenderLenders. Notwithstanding Without limiting the foregoing, documents required Borrower shall deliver to be delivered Lenders, concurrently with the delivery of any financial statements pursuant to clause (a) above, a copy of the terms hereof (to the extent any such documents are included in materials bank and/or investment account statements issued by or otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on available from each institution at which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressany Subsidiary maintains any Collateral Account.
(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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole cost of Borrower, allow Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when except while 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing and shall be at the cost of the Lenders (unless an Event of Default has occurred and is continuing, in which case they shall be conducted at the cost of Borrower).
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthfiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month fiscal quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (or an opinion qualified only for going concern explanatory language as it relates to Borrower’s cash levels so long as no Event of Default has occurred or is continuing) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with discretion, provided that certified public accounting firms of recognized national standing shall be acceptable to the need to raise equity and negative profits)Collateral Agent;
(iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter quarter‑by‑quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 Business Days of delivery, copies of all non-ministerial statements, reports and notices made generally available to Borrower’s security holders or holders of Subordinated Debt;
(v) within five (5) Business 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 after the fact, in the event that Borrower becomes is no longer subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, 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) prompt notice of (x) any material changes to the capitalization table of Borrower and of (y) any non-ministerial amendments or 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual PropertyProperty in a manner that could have a material and adverse effect on Borrower’s business as conducted;
(viii) as soon as available, but no later than thirty (30) days after the last day of each monthmonth with respect to deposit accounts or last day of each quarter with respect to securities accounts, copies of the monthmonth‑end or quarter-end end, as applicable, account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ixi) 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 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, 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 forty-five (3045) days after the last day of each monthfiscal quarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respectsrespects (subject to normal year-end non-cash adjustments, consistent with Borrower’s past practices), in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 (but not less than five (5) days prior written 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 once 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 (Kezar Life Sciences, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Bank: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for such month during the period certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
Bank; (ii) as soon as available, but no later than one hundred eighty ninety (18090) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing or, by April 30, 2008 with the SECrespect to Borrower’s fiscal year ended April 30, 2007), audited consolidated financial statements prepared under GAAPGAAP on form 10-K, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent Bank in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
; (viv) in as soon as available, but no later than the event that Borrower becomes subject earlier to the reporting requirements under the Securities Exchange Act occur of 1934, as amended, within (A) five (5) days of after filing, and (B) forty-five (45) days following each quarter, all reports on Form 10-KQ as filed with the Securities and Exchange Commission (provided, 10-Q however, such documents shall be delivered to Bank by April 30, 2008 with respect to Borrower’s quarters ended/ending October 31, 2006, January 31, 2007, July 31, 2007, October 31, 2007 and January 31, 2008); (v) within five (5) days after filing, all reports on form 8-K filed with the Securities and Exchange Commission,
; (vi) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
; (vii) prompt notice of any event that could reasonably be expected to materially as requested by Bank, Board-approved projections; and adversely affect the value of the Intellectual Property;
(viii) as soon as availablebudgets, but no later than thirty (30) days after the last day of each monthsales projections, copies of the month-end account statements for each Collateral Account maintained by Borrower, which statements may be provided to Collateral Agent operating plans and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other financial information as reasonably requested by Collateral Agent or any LenderBank. Notwithstanding the foregoingBorrower’s 10-K, documents 10-Q, and 8-K reports required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the SECthis Section 6.2(a) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, report or provides a link thereto, thereto on Borrower’s or another website on the internet at Borrower’s website addressinternet.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than Within thirty (30) days after the last day of each month, deliver to each LenderBank with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible OfficerOfficer setting forth calculations showing compliance with the financial covenants set forth in this Agreement.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty five (305) days after filing with the last day of each monthSEC, a company prepared quarterly consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than the earlier of one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty the earlier of ninety (6090) days after the last day of Parenteach of Borrower’s fiscal yearsyears or within seven (7) Business Days of approval by Borrower’s Board of Directors, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,SEC;
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any changes Subsidiary or to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s);
(ix) with each request for a Revolving Advance (unless such documents were delivered during the most recently ended month) and within thirty (30) days after the end of each month during which any Revolving Advances are outstanding, (A) aged listings of accounts receivable and accounts payable (by invoice date), (B) an inventory report, (C) a deferred revenue report (if applicable), (D) a Transaction Report (and any schedules related thereto), and (E) a duly completed Borrowing Base Certificate signed by a Responsible Officer; and
(ixx) 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address.
(b) Concurrently with the delivery of the quarterly financial statements and the audited annual financial statements specified in Section Sections 6.2(a)(i) and 6.2(a)(ii) above but no later than thirty five (305) days after the last day filing of each monthsuch financial statements with the SEC, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once every year twelve (12) months or more frequently as conditions may warrant, unless (and more frequently if) an Event of Default has occurred and is continuing. The foregoing inspections and audits shall be at Borrower’s expense, and the charge therefor shall be Eight Hundred Fifty Dollars ($850.00) per person per day (or such higher amount as shall represent Lenders’ then-current standard charge for the same), plus reasonable out-of-pocket expenses; provided that unless an Event of Default has occurred and is continuing, the aggregate charge for each audit shall not exceed Ten Thousand Dollars ($10,000.00) so long as Borrower’s Books are in good order and the duration of such audit does not extend beyond three (3) days. In the event Borrower and Collateral Agent or any Lender schedule an audit more than five (5) days in advance, and Borrower cancels or seeks to reschedule the audit with less than five (5) days written notice to Collateral Agent or any such Lender, then (without limiting any of Collateral Agent’s rights or remedies) Borrower shall pay Collateral Agent or such Lender a fee of Five Hundred Dollars ($500.00) plus any out-of-pocket expenses incurred by Collateral Agent or such Lender to compensate Collateral Agent or such Lender for the anticipated costs and expenses of the cancellation or rescheduling.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, sheet and income statement and cash flow statement covering the consolidated operations of Parent Borrower, and its Subsidiaries each of Borrower’s Subsidiaries, for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent and no later than thirty (30) days after the last day of each quarter, a company prepared cash flow statement covering the consolidated operations of Borrower, and each of Borrower’s 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 one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year year, or within five (5) days of filing with the SECSecurities and Exchange Commission, audited consolidated financial statements of Borrower prepared under GAAP, consistently applied, together with an unqualified opinion (or an opinion qualified only as to going concern) on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-8 K filed with the Securities and Exchange Commission,
Commission (provided that documents required to be delivered pursuant to this clause (v) shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address); (vi) prompt notice of (A) any material changes to change in the capitalization table composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark, and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiC) prompt notice Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) 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 deposit account or securities account maintained by Borrower, or any of Borrower’s Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
; and (ixviii) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 except while 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
Samples: Loan and Security Agreement (Sunesis Pharmaceuticals Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries Subsidiaries, for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty twenty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
; (iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
, other than notices to stockholders of Borrower given to them in connection with meetings and written consents in lieu thereof; (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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
, (vi) prompt notice of (A) any material changes to change in the capitalization table composition of Borrower and the Intellectual Property, (B) notice of the registration of any changes to the Operating Documents copyright, including any subsequent ownership right of Borrower or any of its SubsidiariesSubsidiaries in or to any copyright, together with any copies reflecting such amendments patent or changes with respect thereto;
trademark, and (viiC) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) 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 deposit account or securities account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
and (ixviii) other financial 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Agile Therapeutics Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements (provided that such unqualified opinion may include going concern explanatory language as it relates to Borrower’s cash level) from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other material changes to the capitalization table of Borrower and of any changes amendments to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 SEC) may be delivered electronically by posting such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addresssuch website.
(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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (LogicBio Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 (and consolidating, if applicable) balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any ““ going concern” solely in connection with the need to raise equity and negative profitsprofits or debt maturity within one year, so long as no Event of Default has occurred and is continuing);
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty the earlier of (60x) thirty (30) days after the last day of Parenteach of Borrower’s fiscal yearsyears or (y) seven (7) days after approval by Borrower’s Board of Directors, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any or other changes to the Operating Documents of Borrower or any of its Subsidiaries, Subsidiaries together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries that are co-borrowers or Guarantors, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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.
(d) Prompt written notice of any changes to the beneficial ownership information set out in items 2(d) and 2(e) of the Perfection Certificate. Borrower understands and acknowledges that each Lender relies on such true, accurate and up-to-date beneficial ownership information to meet such Lender’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthcalendar quarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries Subsidiaries, for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one the earlier of (x) two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year or within (y) five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by Parent’s Board of Directorsavailable, but no later than the earlier of (x) seven (7) days after approval thereof by Borrower’s Board of Directors or (y) sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter quarterly format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any material revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approval; and, unless Collateral Agent notifies Borrower to the contrary in writing within thirty (30) days after receipt thereof, the term “Annual Projections” shall include such revisions);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 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 (A) any material changes to change in the capitalization table composition of Borrower the Intellectual Property, and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiB) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiivii) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthcalendar quarter, copies of the month-end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries for the immediately preceding quarterly period, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and;
(ixviii) other financial information as reasonably requested by Collateral Agent or any Lender; and
(ix) notice of any default or breach under the BCI Credit Agreement or of any claim or enforcement action against Halozyme thereunder, in each case, within one (1) Business Day of the occurrence thereof. 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 SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earlier of (A) the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressaddress or (B) the date on which such documents are publicly available through the SEC’s XXXXX website.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty and (30ii) days after the last day of each monthabove, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Halozyme Therapeutics Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely discretion; [*] = Certain confidential information contained in connection this document, marked by brackets, has been omitted and filed separately with the need Securities and Exchange Commission pursuant to raise equity and negative profits);Rule 406 of the Securities Act of 1933, as amended.
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ten (6010) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated DebtDebt in their capacities as such;
(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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ,
(ix) written notice to the Collateral Agent within five (5) days after any Key Person shall cease to be actively engaged in the management of Borrower; and
(ixx) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthquarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 monthquarter, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at 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 once every year unless (and more frequently if) an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) So long as Borrower is not subject to the reporting requirements of Section 12 or 15 of the Securities and Exchange Act of 1934, as amended (A) commencing for the fiscal month ending on October 25, 2008, and for each fiscal month thereafter, Borrower shall deliver to Lender as soon as available, but prepared and no later than thirty (30) 30 days after the last day end of each such fiscal month, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated Borrower’s operations of Parent during such period and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(iiB) as soon as availableprepared, but no later than one hundred eighty (180) 90 days after then end of the last day of Parentfiscal year, or such other timeframe formally approved by Borrower’s fiscal year or within five (5) days of filing with the SECaudit committee, audited consolidated financial statements prepared under in accordance with GAAP, consistently applied, together with an unqualified opinion on the that such financial statements from fairly preent Borrower’s financial condition by an independent certified public accounting firm reasonably acceptable to Collateral Agent Lender; (ii) immediately upon notice thereof, a report of any legal or administrative action pending or threatened in its reasonable discretion writing against Borrower which is likely to result in liability to Borrower in excess of $100,000 (other than any “going concern” solely in connection with the need provided that Borrower shall not be required to raise equity report notices of possibly relevant third party patents, or proposals or demands to license intellectual property); and negative profits);
(iii) such other financial information as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty Lender may reasonably request from time to time. Financial statements delivered pursuant to subsections (60i)(A) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections and (i)(B) above shall be set forth in accompanied by a quarter-by-quarter format certificate signed by a Responsible Officer (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the each an “Annual ProjectionsOfficer’s Certificate”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) in the event that Borrower becomes subject to form of Exhibit F. Except as amended hereby, the reporting requirements under the Securities Exchange Act Agreement remains unmodified and unchanged. By: /s/ Xxxxx Xxxxxxxxxxx By: LIGHTHOUSE MANAGEMENT PARTNERS V, L.L.C., its general Name: Xxxxx Xxxxxxxxxxx partner Title: President & CEO By: /s/ Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx Title: Director of 1934, as amended, within five (5) days of filing, all reports on Form 10-K, 10-Q Portfolio Analysis [***] Information has been omitted and 8-K filed separately with the Securities and Exchange Commission,
(vi) prompt notice of any material changes . Confidential treatment has been requested with respect to the capitalization table omitted portions. dated as of Borrower and of any changes to the Operating Documents of Borrower or any of its SubsidiariesMarch 29, together with any copies reflecting such amendments or changes with respect thereto;
2005, as amended (vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s“Agreement”), and
by and between LIGHTHOUSE CAPITAL PARTNERS V, L.P. (ix“Lender”) other information and FLUIDIGM CORPORATION (“Borrower”). THIS AMENDMENT NO. 06 (“Amendment 06”) to that certain Loan and Security Agreement No. 4561 dated March 29, 2005 (as reasonably requested amended to date, the “Agreement”) is entered into as of February 15, 2008, by Collateral Agent or any and between LIGHTHOUSE CAPITAL PARTNERS V, L.P. (“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 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, 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 LenderFLUIDIGM CORPORATION, a duly completed Compliance Certificate signed by a Responsible OfficerDelaware corporation (“Borrower”).
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver Each Credit Party shall deliver to each Lender:
Agent: (i) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthquarter, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the such Credit Party’s consolidated operations of Parent and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of Parenta Credit Party’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated and consolidating financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by Parentsuch Credit Party’s Board of Directorsgoverning board, but no later than sixty (60) days after the last day March 31 of Parenteach calendar year, and as amended and/or updated, such Credit Party’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board (and updated notice of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format any material changes within ten (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (710) days after of approval by such approvalCredit Party’s governing board);
; (iv) within five (5) days of delivery, copies of all statements, reports and notices made generally available to Borrowerall of such Credit Party’s security holders or to any 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on such Credit Party’s or another website on the Internet; (vi) prompt notice of any material changes to the capitalization table of Borrower budgets, sales projections, operating plans and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
other financial information reasonably requested by Agent; (vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty forty-five (3045) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by Borrowera Credit Party (including without limitation and for the avoidance of doubt, the Securities Subsidiary), which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s); and (viii) such additional information, and
(ix) other information reports or statements regarding the Credit Parties or their respective businesses, contractors and subcontractors as Agent may from time to time 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 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, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressrequest.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i) above but no later than thirty Within forty-five (3045) days after the last day of each month, Borrower shall deliver to each Lender, Agent a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep Borrower shall cause each Credit Party to keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shallshall allow, and shall cause each of its Subsidiaries to, Credit Party to allow, at the sole cost of Borrower, Collateral Agent or any Lender, during regular normal business hours upon and given reasonable prior notice (provided that no notice shall be required when an Event of Default then exists or has occurred during the preceding 30 days, Agent and is continuing), Lenders to visit and inspect any properties of its propertiesa Credit Party, to examine and make abstracts or copies from any of its books and recordsCredit Party’s books, and to conduct a collateral audit and analysis of its operations and the CollateralCollateral to verify the amount and age of the accounts, the identity and credit of the respective account debtors, to review the billing practices of the Credit Party and to discuss its respective affairs, finances and accounts with their respective officers, employees and independent public accountants as often as may reasonably be desired. Such audits Borrower shall reimburse Agent for all reasonable costs and expenses associated with such visits and inspections; provided, however, that Borrower shall be conducted required to reimburse Agent for such costs and expenses for no more often than twice every year two (2) such visits and inspections per twelve (12) month period unless (and more frequently if) an a Default or Event of Default has occurred during such period.
(d) Borrower shall, and is continuingshall cause each Credit Party to, deliver to Agent, 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 effect on any of the Required Permits material to Borrower’s business or otherwise on the operations of Borrower or any of its Subsidiaries.
Appears in 1 contract
Samples: Credit and Security Agreement (Flexion Therapeutics Inc)
Financial Statements, Reports, Certificates. (a) Deliver to 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 prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAPIFRS, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty ninety (6090) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 1020-K, 10-Q F and 86-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes to the capitalization table amendments of Borrower and of any 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) prompt in connection with each Compliance Certificate delivered at end of a fiscal quarter of Parent, notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 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 books of record and account in accordance with GAAP IFRS in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth (subject to ongoing adjustments made in connection with review by auditors or otherwise in connection with the Borrower’s quarterly review process), a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than as to going concern) on the financial statements from an Ernst & Young, LLP, any “Big Four” accounting firm, or any other independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty (60) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made generally available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,;
(vi) prompt notice of any material amendments of or other changes to (A) the capital structure of Borrower (including, without limitation, changes to the capitalization table classes, par value or number of the authorized or issued shares of capital stock of the Borrower) that would require Borrower to file a report with the Securities and Exchange Commission under the Securities Exchange Act of any changes 1934 if Borrower is subject to the reporting requirements thereof at such time or (B) the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect theretothereto that would require Borrower to file a report with the Securities and Exchange Commission under the Securities Exchange Act of 1934 if Borrower is subject to the reporting requirements thereof at such time; provided, however, that notwithstanding anything stated herein to the contrary, the posting of a link on Borrower’s website on the Internet to any annual, regular, periodic and special reports, registration statements and notices shall satisfy the delivery requirements hereunder;
(vii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Esperion Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECSEC or other applicable authority in the relevant jurisdiction, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by Parent’s Board of Directorsavailable, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as which shall be approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a month-by-month format with respect to the Net Product Revenues (the “Annual Net Product Revenue Projections”) and in a quarter-by-quarter format with respect to all other financial projections contained therein (such the Annual Net Product Revenue Projections and the other annual financial projections as originally delivered to Collateral Agent and the Lenders in a certificate of the chief financial officer or controller of Irish Borrower are referred to herein herein, collectively, as the “Annual Projections”; provided that, any revisions of the Annual Projections (which shall also CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. be approved by ParentBorrower’s Board of Directors Directors) shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalany changes thereto);
(iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material amendments of or other changes to the capitalization table of Borrower and of any 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) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark, including a copy of any such registration, and (C) any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Strongbridge Biopharma PLC)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each calendar month, a company prepared consolidated and consolidating (if applicable) balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one two hundred eighty ten (180210) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty (6030) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month or quarterly format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes amendments to the capitalization table of Borrower and of or any amendments or 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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 BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s),
(ix) promptly upon Collateral Agent’s reasonable request, an updated capitalization table of Borrower, and
(ixx) 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 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, 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, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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.
(d) Deliver to Collateral Agent and Alexandria Real Estate, as soon as available, but no later than (i) thirty (30) days after the end of each fiscal quarter and (ii) thirty (30) days after the last day of each month in which Borrower has delivered in excess of Two Hundred Thousand Dollars ($200,000) worth of new Collateral to the property located at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxx Xxxxxxxxx, XX 00000, an updated, fully comprehensive, Exhibit A to the landlord lien waiver among Alexandria Real Estate, Borrower and Collateral Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Millendo Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
Administrative Agent: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations of Parent and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Administrative Agent;
; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Administrative Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits);
discretion; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
; (viv) 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
Commission or a link thereto on Borrower’s or another website on the Internet; (viv) a prompt notice report of any material changes to the capitalization table of Borrower and of any changes to the Operating Documents of legal actions pending or threatened against Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event Subsidiaries that could reasonably be expected result in damages or costs to materially and adversely affect the value Borrower or any of the Intellectual Property;
its Subsidiaries of Fifty Thousand Dollars (viii$50,000) as soon as available, but no later than or more; (vi) within thirty (30) days after the last day of each monthBorrower’s fiscal year, copies of the month-end account statements for each Collateral Account maintained by Borrower, which statements may be all annual financial projections commensurate in form and substance with those provided to Collateral Borrower’s venture capital investors; (vii) budgets, sales projections, operating plans and other financial information reasonably requested by Administrative Agent; (viii) copies of all Bank Secrecy Act/Anti-Money Laundering (BSA/AML) internal and independent testing reports as requested by Administrative Agent in its reasonable discretion; and each Lender by Borrower or directly from the applicable institution(s), and
(ix) other information as reasonably requested by Collateral Agent or promptly, copies of any Lender. Notwithstanding communications with the foregoing, documents required to be delivered pursuant Securities and Exchange Commission which relate to the 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 status of Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website addressMember Loans as “securities” under federal law.
(b) Concurrently with the delivery Upon Administrative Agent’s request, deliver to Administrative Agent a detailed accounting of the financial statements specified in Section 6.2(a)(icurrent balances of the Clearing Account, Trust Account, and the Borrower Account.
(c) above but no later than Within thirty (30) days after the last day of each month, deliver to each LenderAdministrative Agent with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible OfficerOfficer setting forth calculations showing compliance with the Minimum Collateral Value Ratio set forth in this Agreement on a quarterly basis (or monthly basis if requested by Lenders).
(cd) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation Allow Administrative Agent to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, audit Borrower’s Collateral 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’s expense. Such audits shall be conducted no more often than twice once every year twelve (12) months unless (and more frequently if) a Default or an Event of Default has occurred and is continuing.
(e) Upon Administrative Agent’s request, deliver to Administrative Agent a copy of the final, signed loan documents evidencing Eligible Loans, including without limitation the Financed Loan Notes, and assignments of such Eligible Loans by WebBank to Borrower;
(f) Upon Administrative Agent’s request, deliver to Administrative Agent, a schedule of all Eligible Loans financed with the Advances, in form and substance acceptable to Administrative Agent, including, without limitation, the loan amounts, the loan numbers and the names of the borrowers and the Lender Members participating in such loans.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30) days after the last day of each monthmonth (including, for the avoidance of doubt, the last month of each fiscal quarter), a company prepared consolidated and consolidating balance sheet, sheet and income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred eighty forty-five (18045) days after the last day of Parenteach fiscal quarter, a company prepared consolidated and consolidating statement of cash flows 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;
(iii) as soon as available, but no later than one hundred twenty (120) days after the last day of Borrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with the need to raise equity and negative profits)discretion;
(iiiiv) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty forty-five (6045) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by ParentBorrower’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 statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(vvi) in the event that Borrower becomes continues to be subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports on Form 10-K10‑K, 10-Q 10‑Q and 8-K 8‑K filed with the Securities and Exchange Commission,
(vivii) (a) prompt notice of any material changes to the capitalization table amendments of Borrower and of any or other changes to the Operating Documents of Borrower or any of its Subsidiaries, (b) in the event that Borrower is no longer subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, prompt notice of any material changes to the capitalization of Borrower, together (in the case of both (a) and (b)), with any copies reflecting such amendments or changes with respect thereto;
(viiviii) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viiiix) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end month‑end account statements for each Collateral Account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), ; and
(ixx) 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 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, documents on Borrower’s website or provides a link thereto, thereto on Borrower’s website on the internet at Borrower’s website addresswebsite.
(b) Concurrently Deliver to each Lender a duly completed Compliance Certificate signed by a Responsible Officer 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 books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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 once 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 (Regulus Therapeutics Inc.)
Financial Statements, Reports, Certificates. Issuer shall:
(a) Deliver to each Lender:
Holder for as long as this Agreement is outstanding: (i) as soon as available, but 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 prepared consolidated balance sheet, income statement and cash flow statement covering the Issuer’s consolidated operations of Parent and its Subsidiaries for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty in any event within ninety (18090) days after the last day end of ParentIssuer’s fiscal year or within five (5) days of filing with the SECyear, audited consolidated financial statements of Issuer prepared under in accordance with GAAP, consistently applied, together with an unqualified opinion on the such financial statements from an independent certified public accounting firm reasonably acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with it being understood that Issuer’s accounting firm as of the need Issue Date shall be acceptable to raise equity and negative profitsAgent);
; (iii) as soon as available promptly after approval thereof by ParentIssuer’s Board board of Directors, directors (but in no event later than sixty thirty (6030) days after the last day of ParentIssuer’s fiscal yearsyear), Parentand promptly but in any event within ten (10) days after any update from time to time thereto, annual operating budgets for such fiscal year (including income statements, balance sheets and cash flow statements, by month) as approved by Issuer’s board of directors, together with annual financial projections for the entire current such fiscal year (on a quarterly basis) as approved by ParentIssuer’s Board board of Directorsdirectors, which and any related business forecasts used in the preparation of such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”projections; provided that, any revisions of the Annual Projections approved by Parent’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 a prompt report of any legal actions pending or threatened in writing against Issuer or any of its Subsidiaries that could result in damages or costs to Issuer or any of its Subsidiaries of Seventy-Five Thousand Dollars (5$75,000) days or more or invalidation of delivery, copies any material Intellectual Property; (v) a prompt report of all returns, recoveries, disputes and claims, individually or in the aggregate in excess of Fifty Thousand Dollars ($50,000), with Account Debtors of Issuer or any Subsidiary; (vi) prompt notice of an event that materially and adversely affects the value of the Intellectual Property owned by Issuer or any Subsidiary or could have a material adverse effect on Issuer’s business; (vii) any financial statements, notices, reports and notices made available or other information not delivered pursuant to Borrower’s security holders this Agreement provided to Senior Lender or holders of Subordinated Debt and any amendments or other agreements entered into with respect to the Senior Debt or Subordinated Debt;
; and (vviii) in any budgets, sales projections, operating plans and other information or reports as Agent may reasonably request from time to time. In the event that Borrower Issuer becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amendedAct, within five (5) days of filing, Issuer shall deliver to Holders all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
(vi) prompt notice of any material changes Commission or notify Holders that a link thereto has been posted on Issuer’s or another website on the Internet. Notwithstanding anything herein to the capitalization table contrary, in the case of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(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, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 this Section 5.2(a) and included in materials otherwise filed with the SEC, (x) Issuer shall be deemed to satisfy the requirements of this Section 5.2(a) to the extent such documents are included in materials filed with the SEC in compliance with the reporting requirements under the Exchange Act, and (y) such documents may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower Issuer posts such documents, or provides a link thereto, on BorrowerIssuer’s website on the internet at BorrowerIssuer’s website address; provided, however, Issuer shall promptly notify Agent in writing (which may be by electronic mail) of the posting of any such documents.
(b) Concurrently Together with the delivery of the financial statements specified in pursuant to Section 6.2(a)(i5.2(a)(i) above but no later than thirty and (30) days after the last day of each monthii), deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record Allow Agent to audit or inspect Issuer’s Collateral at reasonable times during normal business hours and account in accordance with GAAP in all material respects, in which full, true and correct entries upon reasonable advance notice to Issuer. Such audits or inspections shall be made of all dealings and transactions in relation to its business and activities. Borrower shallconducted no more often than once every twelve (12) months, 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 unless an Event of Default has occurred and is continuing), in which case such inspections and audits shall occur as often as Agent shall determine is necessary.
(d) [reserved].
(e) Deliver to visit Agent a copy of Issuer’s Articles of Incorporation, as amended in connection with such equity financing and inspect an updated capitalization table in form acceptable to Agent in connection with the next Compliance Certificate.
(f) Deliver to Agent, 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 its propertiesthe Governmental Approvals material to Issuer’s or any Subsidiary’s business or otherwise could reasonably be expected to have a Material Adverse Change.
(g) Allow representatives of Agent to attend (to the extent in person, one person reasonably acceptable to examine Issuer at the sole cost and make abstracts expense of Issuer, or copies from any by conference call) all meetings of its books and recordsIssuer’s board of directors in a non-voting observer capacity, and provide such representatives with copies of all notices, minutes, written consents, and other materials that it provides to conduct members of Issuer’s board of directors, at the time it provides them to such members, provided that Issuer may redact (i) any portions of such materials that are subject to attorney-client privilege, and (ii) any portions of such materials result in a collateral audit conflict of interest between any Holder and analysis its representative or their respective affiliates or representatives, on the one hand, and Issuer or its affiliates or representatives on the other hand, concerning the financing transaction between Issuer and Holders or other matters involving any Holder or their affiliates. Notwithstanding the foregoing, Issuer may exclude such representatives from portions of any meeting if (i) the attendance by such representatives during such portion of the meeting would jeopardize or otherwise impair the attorney-client privilege, or (ii) if attendance at such meeting could result in a conflict of interest between Holders and its operations representative or their respective affiliates or representatives, on the one hand, and Issuer or its affiliates or representatives on the Collateral. Such audits shall be conducted no more often than twice every year unless (other concerning the financing transaction between Issuer and more frequently if) an Event of Default has occurred and is continuingHolders or other matters involving Holders or their Affiliates.
Appears in 1 contract
Samples: Note and Warrant Purchase and Security Agreement (SANUWAVE Health, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to 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 prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of Parent Borrower and its Subsidiaries Subsidiaries, for such month quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent;
Agent as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; (ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely in connection with provided that the need to raise equity Collateral Agent and negative profitsthe Lenders acknowledge that X.X. Xxxx LLP is an acceptable independent certified public accounting firm);
; (iii) as soon as available after approval thereof by ParentBorrower’s Board of Directors, but no later than sixty thirty-one (6031) days after the last day of Parenteach of Borrower’s fiscal years, ParentBorrower’s annual financial projections for the entire current fiscal year as approved by ParentBorrower’s Board of Directors, which such annual financial projections shall be set forth in a quartermonth-by-quarter month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided thatthat (x) prior to the delivery of the projections for the fiscal year 2013, the Annual Projections for fiscal year 2012 delivered to the Collateral Agent prior to the Effective Date shall be the “Annual Projections” and (y) any revisions of the Annual Projections approved by ParentBorrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7) days after such approvalapproval and the term “Annual Projections” shall include such revisions);
; (iv) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security 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 on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission,
, (vi) prompt quarterly (unless an Event of Default has occurred and is continuing, in which case, prompt) notice of (A) any material changes to change in the capitalization table composition of Borrower the Intellectual Property and of any changes to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto;
(viiB) prompt notice Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
; (viiivii) as soon as available, but no later than thirty forty-five (3045) days after the last day of each monthquarter, copies of the month-end account statements for each Collateral Account deposit account or securities account maintained by BorrowerBorrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
and (ixviii) (other than confidential treatment requests) other financial 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 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, 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 forty-five (3045) days after the last day of each monthfiscal quarter, deliver to the each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. 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
Samples: Loan and Security Agreement (Pacira Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to each Lender:
Agent: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a company Borrower prepared unaudited consolidated and consolidating financial statements, consisting of a balance sheet, sheet and income statement and cash flow statement covering the Borrower’s consolidated operations for the monthly period ending the last day of Parent and its Subsidiaries for such month certified month, together with a Compliance Certificate signed by a Responsible Officer and in the form of Exhibit C or in a form reasonably acceptable to Collateral Agent;
; (ii) as soon as available, but no later than one hundred eighty twenty (180120) days after the last day of ParentBorrower’s fiscal year year, or within five (5) days of filing with the SEC, if earlier, audited consolidated and consolidating financial statements prepared under (GAAP, consistently applied, together with the unqualified report of an unqualified opinion on the independent registered accounting firm with respect to Borrower’s financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (other than any “going concern” solely issued in connection with the need to raise equity and negative profits);
therewith; (iii) as soon as available after approval thereof by Parent’s Board of Directors, but no later than sixty (60) days after the last day of Parent’s fiscal years, Parent’s annual financial projections for the entire current fiscal year as approved by Parent’s Board of Directors, which such annual financial projections shall be set forth in a quarter-by-quarter format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Parent’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 statements, reports and notices made available to Borrower’s security 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, copies of all reports on Form 10-K, K Form 10-Q and Form 8-K filed with the Securities and Exchange Commission,
SEC; (viiv) prompt notice Borrower’s annual budget approved by Borrower’s board of any material changes to the capitalization table of Borrower and of any 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) prompt notice of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no directors for each fiscal year not 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, which statements may be provided such approval; (v) all material revisions to Collateral Agent and each Lender by Borrower or directly from the applicable institution(s), and
(ix) 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 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, 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 projections and business plans within thirty (30) days after such revisions; (vi) prompt written notice of any material revisions, amendments to, or notices received under, the last day Bilastine License or the Allergan Contract (subject to confidentiality restrictions contained in the Bilastine License or the Allergan Contract); and (vii) other financial information reasonably requested by Agent. Borrower may comply with the delivery requirements of each month, deliver clauses (ii) and (iii) above by maintaining an electronic link to each Lender, a duly completed Compliance Certificate signed by a Responsible Officerits SEC reports on Borrower’s website.
(cb) Keep Borrower will keep proper books of record and account accounts in accordance with GAAP in all material respects, in which full, true and correct entries shall be made of all material dealings and transactions in relation to its business and activities. 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 Borrower (except as provided that no notice shall be required when an Event of Default has occurred and is continuingbelow), Agent to visit and inspect any of its properties, to examine and make abstracts or copies from any of its their respective books and records, and to conduct a collateral audit and analysis of its operations and the Collateral, to verify the amount and age of the accounts, the identity and credit of the respective account debtors, to review the billing practices of Borrower and to discuss its respective affairs, finances and accounts with their respective officers, employees and independent public accountants as often as may reasonably be requested. Such Notwithstanding the foregoing, (i) such audits shall be conducted no more often than twice every year unless at Agent’s expense if Covenant Level One is in effect and (ii) at all other times, such audits shall be conducted at Borrower’s expense (not to exceed $10,000 per audit) which prior to the occurrence and more frequently if) continuance of an Event of Default has occurred may not be conducted more often than once every twelve (12) months.
(i) Borrower will give prompt written notice to Agent of any litigation or governmental proceedings pending or threatened (in writing) against Borrower which would reasonably be expected to result in a Material Adverse Change with respect to Borrower; (ii) without limiting or contradicting any other more specific provision of this Agreement, promptly (and is continuingin any event within three (3) Business Days) 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, Borrower shall give written notice to Agent 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.
Appears in 1 contract
Samples: Loan and Security Agreement (Inspire Pharmaceuticals Inc)
