Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income statement and statement of cash flow, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Cas Medical Systems Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank; provided, however, that such financial statements for Borrower’s fiscal year ended December 31, 2017 shall be delivered to Bank (Bank acknowledges that CohnReznick LLP is acceptable)no later than January 31, 2019; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and , provided, that Borrower shall deliver to Bank Board of Directors approved financial plans within sixty (viii) within thirty (3060) days of the last day of each previous fiscal quarteryear end; and (vii) upon Bank’s request, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankProperty.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement statement, and statement of cash flow, flows covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; provided, however, that such monthly financial statements need not contain notes or footnotes (“GAAP Notes”) that may be required by GAAP; provided, further, that if such monthly financial statements do include GAAP Notes, such GAAP Notes will be included in the monthly financial statements that are delivered to Bank; (ii) as soon as available, but in any event within one hundred fifty (150) 150 days after the end of Borrower's ’s fiscal year, audited (or such other level as is required by the Investment Agreement) consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion opinion, which is unqualified either (including no a) unqualified, (b) qualified only for going concern comment (so long as Borrower’s investors provide additional equity as needed) or qualification(c) otherwise consented to in writing by Bank, on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) annual budget approved by Borrower’s Board of Directors as soon as available but not later than January 15 of each year during the term hereof; (iv) if applicable, any copies of all statements, reports and notices material to the Bank’s interest and relationship with Borrower and sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) as soon as available, but in any event within thirty (30) 30 days of after the last day end of each fiscal quartercalendar month, a report signed by written update on the progress of Borrower’s clinical trials, in form reasonably acceptable along with any updates pertaining to Bank, listing any applications or registrations Borrower’s clinical trials that Borrower has made or filed in respect have been provided to Borrower’s Board of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDirectors.
Appears in 1 contract
Samples: Loan and Security Agreement (Tobira Therapeutics, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty forty five (3045) days after the end of each calendar monthquarter, a company prepared consolidated balance sheet, income income, and cash flow statement in form of 10-Q filed with the Securities and statement of cash flowExchange Commission, covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty and twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently appliedin form of 10-K filed with the Securities and Exchange Commission, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) , provided Borrower’s Board-approved annual financial projections shall be delivered to Bank within thirty (30) days of Board approval. Within twenty (20) days after the last day of each fiscal quartermonth, Borrower shall deliver to Bank a report Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable. Bank shall have a right from time to time hereafter to audit Borrower’s Accounts and appraise Collateral at Borrower’s expense, in form reasonably acceptable to Bank, listing any applications or registrations provided that Borrower such audits will be conducted no more often than every twelve (12) months unless an Event of Default has made or filed in respect of any Patents, Copyrights or Trademarks occurred and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankis continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Rainmaker Systems Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s and each Subsidiaries’ operations during such period, prepared in accordance with GAAP (except for (a) the omission of footnotes, (b) accounting adjustments relating to stock compensation, equity, partnership and collaboration agreements, (c) normal year-end adjustments, and (d) adjustments required or permitted to conform to GAAP), and in a form reasonably acceptable to Bank and certified by a Responsible Officer; provided, that after a Qualified Public Offering, the foregoing interim financial statements shall be delivered no later than thirty (30) days after the filing with the SEC for each fiscal quarter then ended; (ii) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, commencing with the fiscal year ending December 31, 2014, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no except for going concern comment comments or qualificationqualifications based upon the history of accumulated losses and related impact upon the amount of cash shown in the financial statements of Borrower or the need to raise additional capital) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 March 1 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such the then current or immediately following year, as applicable, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's board ’s Board of directorsDirectors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (K2 Therapeutics, Inc.)
Financial Statements, Reports, Certificates. Borrower (a) Bank shall deliver to Bankreceive: (i) from Borrower, as soon as available, but in any event within thirty (30) no later than 60 days after the end last day of each calendar monthfiscal quarter (except the 4th quarter), a company prepared balance sheet and income statement covering Borrower’s operations during the period certified by a Responsible Officer and in a form reasonably acceptable to Bank; provided, however, that Tailwind shall not have to provide such financial statements prior to December 31, 2004, with the first financial statements of Tailwind delivered under this clause being with respect to the first fiscal quarter of 2005; (ii) from Partners Group, as soon as available, but no later than 60 days after the last day of each fiscal quarter (except the 4th quarter), a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's Partners Group’s consolidated operations during such period, the period certified by a Responsible Officer and in a form reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iiiii) from Borrower, as soon as available, but in any event within one hundred fifty (150) no later than 120 days after the end last day of Borrower's ’s fiscal year, company prepared balance sheet and income statement covering Borrower’s operations during such fiscal year certified by a Responsible Officer and in a form reasonably acceptable to Bank; (iv) from Partners Group, as soon as available, but no later than 120 days after the last day of Partners Group’s fiscal year, company prepared consolidated balance sheet and income statement covering Partners Group’s consolidated operations during such fiscal year certified by a Responsible Officer and in a form reasonably acceptable to Bank; (v) from Borrower, as soon as available, but no later than 120 days after the last day of the applicable fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, for each Principal Fund evidencing such Principal Fund’s payment to Borrower of the Management Fees, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiivi) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereofBorrower, a prompt report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 100,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such from Borrower, budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankrequests.
Appears in 1 contract
Samples: Loan and Security Agreement (Thomas Weisel Partners Group, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement statement, and statement of cash flow, flows covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) 180 days after the end of Borrower's ’s fiscal year, audited (or such other level as is required by the Investment Agreement) consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no either unqualified, qualified only for going concern comment so long as Borrower’s investors provide additional equity as needed or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Heat Biologics, Inc. USA 10 Bank; (iii) an annual budget and product timeline, each approved by Borrower’s Board of Directors, as soon as available but not later than 15 days after the beginning of each fiscal year of Borrower during the term of this Agreement; (iv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K K,and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower Parent shall deliver the following to Bank: (i) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthquarter, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's Borrowers' operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of BorrowerParent's fiscal year, audited consolidated and consolidating financial statements of Borrower Borrowers prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank, reflecting no material changes from the company-prepared financial statements for the same period commencing with the fiscal year ending December 31, 2004; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by a Borrower to its security holders or to any holders of Subordinated Debt and and, within five (5) days of filing, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against a Borrower or any Subsidiary that could result in uninsured damages or costs to a Borrower or any Subsidiary of One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by a Borrower's independent certified public accounting firm regarding such Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by a Borrower in the ordinary course of business as Bank may reasonably request from time to time, including but not limited to Borrowers' annual business plan, including 2005 operating budget, no later than thirty (30) days after the end of the preceding fiscal year; and (viiivii) within thirty (30) days of the last day of each fiscal quarter, a report signed by BorrowerParent, in form reasonably acceptable to Bank, listing any applications or registrations that a Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in a Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of such Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by such Borrower in connection with this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Vitalstream Holdings Inc)
Financial Statements, Reports, Certificates. (a) Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company company-prepared consolidated balance sheet, income statement, and cash flow statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no except with respect to a going concern comment clause specifying the need for future equity financings) or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00100,000) or more; (viv) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (viv) as soon as available, but in any event not later than January 31 February 15 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viivi) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiivii) within thirty (30) days of the last day of each fiscal quartertime periods prescribed by Section 6.8(b), a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral’s Patents, including Copyrights or Trademarks, including, but not limited to to, any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthfiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement, cash flow statement and statement of cash flow, recurring revenue report covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission within five (5) days of filing with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower any Loan Party or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower such Loan Party or any such Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000.00) or moremore or any other matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 sixty (60) days after the end of each calendar fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budgetbudget (on a quarterly basis, presented in a month-by-month formatincluding income statements, balance sheets and cash flow statements, by quarter) for such the immediately following year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's board ’s Board of directors; provided that Directors, and contemporaneously with delivery or approval by Borrower's board approved 2018-2019 plan shall have been provided to’s Board of Directors, reviewed and approved by Bank prior to the Closing Dateany updates or changes thereto; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and , (viii) within thirty promptly following any request therefor, information and documentation reasonably requested by Bank for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, (30ix) days prompt notice of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications creation or registrations that Borrower has made or filed in respect acquisition of any PatentsSubsidiary, Copyrights and (x) within five (5) Business Days after the same are sent or Trademarks received, copies of all correspondence, reports, documents and other filings with any Governmental Authority regarding compliance with or maintenance of governmental approvals or requirements of law or that could reasonably be expected to have a material effect on any of the status of any outstanding applications governmental approvals or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right otherwise on the operations of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankof its Subsidiaries.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible OfficerOfficer (provided that such monthly financials may not reflect expensing of equity instruments under and in accordance with FASB 123R); (ii) as soon as available, but in any event within one hundred fifty (150) 95 days after the end of Borrower's ’s fiscal year, or as soon thereafter as required (or extended) by Securities and Exchange Commission, the audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; and (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to lo Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement and statement of cash flow, flows covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) 150 days after the end of Borrower's ’s fiscal year, audited (or such other level as is required by the Investment Agreement) consolidated and consolidating (if applicable) financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no either unqualified, qualified only for going concern comment so long as Borrower’s investors provide additional equity as needed or qualification) otherwise consented lo in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm fim1 reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) annual budget approved by Borrower’s Board of Directors as soon as available but not later than January 15th of each year during the term of this Agreement; (iv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) 30 days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Indie Semiconductor, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) beginning with the month ending June 30, 2007, as soon as available, but in any event within no later than thirty (30) days after the end last day of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and the period certified by a Responsible OfficerOfficer and in a form acceptable to Bank (the "Monthly Financial Statements"), provided however, Borrower shall not be required to deliver the Monthly Financial Statements with respect to any month during which Borrower maintained at all times unrestricted cash at Bank in an amount equal to at least two (2) times the maximum amount of the Revolving Line; (ii) as soon as available, but in any event within one hundred fifty no later than forty-five (15045) days after the end last day of each quarter, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during the period certified by a Responsible Officer and in a form acceptable to Bank (the "Quarterly Financial Statements"), provided however, as of the quarter ending on June 30, 2007 and thereafter, Borrower shall not be required to deliver the Quarterly Financial Statements with respect to any quarter during which Borrower delivered the Monthly Financial Statements for each of the three (3) months during such quarter; (iii) as soon as available, but no later than one hundred twenty (120) days after the last day of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)in its reasonable discretion; (iiiiv) within five (5) days of delivery, copies of all statements, reports and notices sent or made available generally by Borrower to its Borrower's security holders or to any holders of Subordinated Debt and Debt; (v) within five (5) days of filing, all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of Commission or a link thereto on Borrower's or another website on the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Internet; (ivvi) promptly upon receipt of notice thereof, a prompt report of any legal actions pending or threatened in writing against Borrower or any Subsidiary of its Subsidiaries that could result in damages or costs to Borrower or any Subsidiary of One its Subsidiaries of Five Hundred Thousand Dollars ($100,000.00500,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vivii) as soon as available, but in any event not no later than January 31 of each calendar yearforty-five (45) days after Board approval, and within seven (7) days of at least annually and in connection with any board-approved modifications theretomaterial changes, Borrower's Board approved financial projections; and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viiviii) such budgets, sales projections, operating plans or and other financial information generally prepared reasonably requested by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in . Borrower's Intellectual Property Collateral10-K, including but not limited 10-Q, and 8-K reports required to any subsequent ownership right of be delivered pursuant to Section 6.2(a)(v) shall be deemed to have been delivered on the date on which Borrower in posts such report or to any Trademark, Patent provides a link thereto on Borrower's or Copyright not previously identified to Bankanother website on the internet.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Borrower shall will deliver to BankLenders: (i) as soon as available, but in any event within thirty (30) no later than 30 days after the end last day of each calendar month, a company company-prepared unaudited financial statements consisting of a consolidated balance sheet, an income statement and a cash-flow statement of cash flow, covering Borrower's consolidated operations during such the period, in a form reasonably acceptable to Bank Lenders and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) no later than 90 days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Lenders; (iii) within 5 days of filing, copies of all statements, reports and notices sent or made available generally by Borrower to its Borrower's security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2if any; (iv) promptly upon receipt of notice thereof, 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 One Hundred Thousand Dollars ($100,000.00) 100,000 or more, any order, judgment or decree being entered against Borrower or any of its properties or assets involving a sum, together with the sum of all other orders, judgments or decrees, of $100,000 or more; (v) promptly upon receiptprompt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systemsand in all events within 10 days after Borrower becomes aware of such circumstance, notice of any material change in the composition of the Intellectual Property, including any subsequent ownership right of Borrower in or to any Copyright, Patent or Trademark not shown in any intellectual property security agreement between Borrower and Lenders or knowledge of an event that materially adversely affects the value of the Intellectual Property; (vi) as soon as available, but in any event not later than January 31 of each calendar yearprompt, and in all events within seven (7) 10 days after Borrower becomes aware of such circumstance, notice of any board-approved modifications theretoactual or prospective change, Borrower's financial and business projections and budget, presented in development or event which has had or could reasonably be expected to have a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing DateMaterial Adverse Change; (vii) prompt, and in all events within 10 days after Borrower becomes aware of such circumstance, notice of the existence and nature of a Default or an Event of Default, stating that such notice is a "Notice of Default"; and (viii) budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may Lenders reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankrequest.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: Bank (provided that any such financial statements that are available to Bank on the SEC’s website shall be deemed delivered without further action by Borrower): (i) as soon as available, but in any event within thirty one hundred twenty (30120) days after (or such earlier time as is required by the end of each calendar month, a company prepared consolidated balance sheet, income statement and statement of cash flow, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iiSEC) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no unqualified, except for going concern comment for fiscal year 2009, or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank Bank; (Bank acknowledges that CohnReznick LLP is acceptableii) as soon as available, but in any event within thirty (30) days after the last day of each month when the Liquidity Ratio set forth in Section 6.7(b) includes consideration of Borrower’s Eligible Accounts (or, otherwise, thirty (30) days after the end of each of Borrower’s first, second and third fiscal quarters (or such earlier time as may be mandated by the SEC from time to time)), unaudited financial statements of Borrower prepared in accordance with GAAP; (iii) copies of all statementsas and when filed, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2SEC; (iv) promptly upon within five (5) calendar days following receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs reasonably be expected to have a Material Adverse Effect if decided adversely to Borrower (or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or moreotherwise require the Company to report the same to the SEC); (v) promptly upon receiptwithin five (5) calendar days following receipt thereof, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; and (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; , including but not limited Borrower’s financial and (viii) business projections and budget for the immediately following year, with evidence of approval thereof by Borrower’s board of directors, within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable calendar year end; provided that Borrower shall deliver to Bank, listing within ten (10) days of approval thereof and, in any applications or registrations that Borrower has made or filed in respect event, no later than January 31, Borrower’s Board of any PatentsDirectors-approved budget for 2011 (including monthly balance sheet, Copyrights or Trademarks profit and the status of any outstanding applications or registrationsloss statement and cash flow statements), which shall be attached hereto as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.Annex I.
Appears in 1 contract
Samples: Loan and Security Agreement (Somaxon Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthfiscal quarter, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion opinion, which is unqualified (including no unqualified, other than as to a going concern comment comment, or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 15 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s quarterly financial and business projections and budget, presented in a month-by-month format, budget for such that year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) upon Bank’s request, within thirty forty-five (3045) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower Borrowers shall deliver the following to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar monthquarter, a company prepared consolidating and consolidated balance sheet, income statement and statement of cash flow, flow statements covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible OfficerOfficer (except that, when Borrowers’ Senior Debt to EBITDA Ratio is in excess of 1.50 to 1.00, Borrower shall deliver such consolidating and consolidated income statements within thirty (30) days after the last day of each month); (ii) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable able to Bank (Bank acknowledges that CohnReznick LLP is acceptable)practice before the SEC; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8l0-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank SEC (within five (5) days of the SEC standard filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2date); (iv) promptly upon after receipt by a Responsible Officer of notice thereof, a 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 One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receiptwithin 90 days of the end of each fiscal year of Borrower, each management letter prepared an annual budget for the next fiscal year, approved by Borrower's independent certified public accounting firm regarding Borrower's management control systems’s Board of Directors; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such other budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to timebusiness; and (viiivii) if Borrower files any applications for, or obtains registration for, any material Patents, Copyrights or Trademarks during a given fiscal quarter, then Borrower shall, within thirty (30) days of the last day of each such fiscal quarter, deliver to Bank a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.form
Appears in 1 contract
Samples: Loan and Security Agreement (Concur Technologies Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty forty seven (3047) days after the end of each calendar monthof the first three fiscal quarters of each year, a company prepared consolidated balance sheet, income statement and cash flow statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and period certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty twenty (150122) days after the end of Borrower's each fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Material Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Material Subsidiary of One Hundred Thousand Million Dollars ($100,000.001,000,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 within sixty (60) days after the end of each calendar Borrower’s fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such the immediately following year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such annual budgets, annual sales projections, annual operating plans or other annual financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty sixty (3060) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed with the U.S. Patent and Trademark Office or the U.S. Copyright Office in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrationsregistrations with the U.S. Patent and Trademark Office or the U.S. Copyright Office, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright registered with the U.S. Patent and Trademark Office or the U.S. Copyright Office not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower Parent shall deliver to Bankeach Lender: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank Collateral Agent and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Collateral Agent on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Collateral Agent; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, within five (5) days of filing, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 February 15 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank any Lender may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to BankCollateral Agent, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankCollateral Agent by Borrower in connection with this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (CareView Communications Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty twenty (3020) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) as soon as available, but in any event within twenty (20) days after the end of Borrower's fiscal quarter, a company prepared consolidating balance sheet and income statement for Borrower and each Guarantor; (d) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, to the extent applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ive) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to timebusiness; and (viiig) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateralintellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement. Within twenty (20) days after the last day of each month in which any Credit Extension is outstanding, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto, together with aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit E hereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: ; (i) as soon as available, but in any event within thirty twenty five (3025) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10l0-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven twenty five (725) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Dateend of Borrower’s fiscal year, a draft operating plan for the subsequent fiscal year; (vii) as soon as available, but in any event thirty (30) days after the beginning of Borrower’s fiscal year, an operating plan approved by Borrower’s board of directors and in form and substance acceptable to Bank; and (viii) such other budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) if information is not timely filed with the Securities and Exchange Commission, as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthfiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement, cash flow statement and statement of cash flow, recurring revenue report covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) if information is not timely filed with the Securities and Exchange Commission, as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission within five (5) days of filing with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower any Loan Party or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower such Loan Party or any such Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000.00) or moremore or any other matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; (v) promptly upon receipt, each management letter prepared by Borrower's Xxxxxxxx’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 sixty (60) days after the end of each calendar fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's Xxxxxxxx’s financial and business projections and budgetbudget (on a quarterly basis, presented in a month-by-month format, including income statements) for such the immediately following year, with written certification signed by a Responsible Officer evidence of approval thereof by Xxxxxxxx’s Board of Directors, and contemporaneously with delivery or approval by Borrower's board ’s Board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided toDirectors, reviewed and approved by Bank prior to the Closing Dateany updates or changes thereto; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and , (viii) within thirty promptly following any request therefor, information and documentation reasonably requested by Bank for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, (30ix) days prompt notice of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications creation or registrations that Borrower has made or filed in respect acquisition of any PatentsSubsidiary, Copyrights and (x) within five (5) Business Days after the same are sent or Trademarks received, copies of all correspondence, reports, documents and other filings with any Governmental Authority regarding compliance with or maintenance of governmental approvals or requirements of law or that could reasonably be expected to have a material effect on any of the status of any outstanding applications governmental approvals or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right otherwise on the operations of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankof its Subsidiaries.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: ; (ia) as soon as available, but in any event within thirty twenty-five (3025) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon within a reasonable time not exceeding 5 days after receipt of notice thereof, a 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 One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vie) as soon as available, but in any event not within twenty-five (25) days after the end of each month, a domestic distribution sales pass through report and domestic distributor channel inventory report, as currently prepared by Borrower, in form and detail reasonably acceptable to Bank and certified by a Responsible Officer; (f) as soon as practicable, but in any event no later than January December 31 of each calendar fiscal year, a budget and within seven projections by fiscal quarter for the next four fiscal quarters, including projected consolidated balance sheets and statements of income and retained earnings (7or comparable statements) days and changes in financial position and cash flow of any board-the Borrower, all approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior all in form and detail acceptable to the Closing DateBank; (viig) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to timebusiness; and (viiih) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateralintellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement. Within three (3) days after the end of each week in which an Advance is outstanding, or, if no Advance is outstanding, within three (3) days after the end of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable. Within three (3) days after the end of each month, Borrower shall deliver to Bank aged listings of accounts payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto. Bank shall have a right prior to the initial Advance and from time to time thereafter to audit Borrower's Accounts and appraise Collateral at Borrower's expense (not to exceed $5,000 per audit), provided that such audits will be conducted no more often than four (4) times in any calendar year unless an Event of Default has occurred and is continuing. Borrower shall immediately provide Bank with written notice upon (i) the occurrence of an Event of Default (as such term is defined in the Nortel Networks Note), (ii) the occurrence of any event that upon the lapse of time or the giving of notice would constitute or give rise to an Event of Default (as such term is defined in the Nortel Networks Note), (iii) a Change of Control (as such term is defined in the Nortel Networks Note), or (iv) any other event or occurrence requiring mandatory redemption or repayment of amounts owing under the Nortel Networks Note, other than upon the Nortel Networks Note's Maturity Date of February 7, 2009.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating (if any) balance sheet, income statement statement, and statement of cash flow, flows covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) 180 days after the end of Borrower's ’s fiscal year, audited (or such other level as is required by the Investment Agreement) consolidated and consolidating (if any) financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with (if required by the Investment Agreement) an opinion which is unqualified (including no either unqualified, qualified only for going concern comment so long as Borrower’s investors provide additional equity as needed or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; provided however for the 2015 fiscal year such financial statements may be company prepared and no audit will be required; (iii) annual budget approved by Borrower’s Board of Directors as soon as available but in any event within 30 days after each fiscal year end during the term of this Agreement; (iv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened in writing against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans plans, information relating to clinical updates or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Kaleido Biosciences, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income income, and cash flow statement and statement of cash flow, covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could is reasonably likely to result in damages or costs to Borrower or any Subsidiary of One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business, including but not limited to an annual business as Bank may reasonably request from time to timeplan, including operating budget, no later than January 30 of each year for same year; and (viiif) within thirty (30) days of after the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateralintellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement; and (g) within thirty (30) days after the end of each fiscal quarter, a report of the percent of revenue derived from Borrower's intellectual property. Within thirty (30) days after the last day of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank with the monthly financial statements for March, June, September and December, a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto. Bank shall have a right from time to time hereafter to audit Borrower's Accounts and appraise Collateral at Borrower's expense, provided that such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing. Notwithstanding the foregoing, Borrower shall be required to pay for no more than one (1) such audit, if any, per year unless an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) as soon as available, but in any event within thirty no later than forty-five (3045) days after the end last day of each calendar monthquarter (other than the fiscal quarter ending December 31), a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, in a form reasonably acceptable to Bank and the period certified by a Responsible OfficerOfficer and in a form acceptable to Bank; (ii) as soon as available, but in any event within one hundred fifty no later than ninety (15090) days after the end last day of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of from a PCAOBnationally-registered independent recognized, independent, certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)firm; (iii) within five (5) Business Days of filing, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a prompt report of any legal actions pending or threatened in writing against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Three Million Dollars ($100,000.003,000,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not no later than January 31 ninety (90) days after the end of each calendar fiscal year, a one (1) year (prepared on a quarterly basis) financial projections of Borrower on a consolidated basis, including a balance sheet and within seven statements of income and cash flows prepared in accordance with GAAP and showing projected operating revenues, expenses and debt service of Borrower on a consolidated basis; and (7vi) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared reasonably requested by Bank. Documents required to be delivered pursuant to this Section 6.2(a) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at Borrower’s website address of xxx.xxxxxxx.xxx (or such other website address as Borrower may provide to Bank in the ordinary course of business as Bank may reasonably request writing from time to time); provided that: (x) to the extent Bank is otherwise unable to receive any such electronically delivered documents, Borrower shall, upon request by Bank, deliver paper copies of such documents to Bank until a written request to cease delivering paper copies is given by Bank and (viiiy) within thirty Borrower shall notify Bank (30by telecopier or electronic mail) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect posting of any Patentssuch documents or provide to Bank by electronic mail electronic versions (i.e., Copyrights or Trademarks and the status soft copies) of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Banksuch documents.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthquarter, a Borrower’s report on Form 10-Q, including Borrower’s company prepared consolidated balance sheetfinancial statements, income statement and statement of cash flow, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)and Borrower’s report on Form 10-K; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivc) promptly upon receipt of notice thereof, a report of any legal actions pending or overtly threatened against Borrower or any Subsidiary that could is reasonably likely to result in damages or costs to Borrower or any Subsidiary of One Five-Hundred Thousand Dollars ($100,000.00500,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiid) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any material Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral’s intellectual property, including but not limited to any subsequent ownership right of Borrower in or to any material Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to Bank by Borrower in connection with this Agreement; and (e) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business. Borrower shall deliver to Bank with the quarterly 10Q report a Compliance Certificate (including covenant calculations providing detail acceptable to Bank) signed by a Responsible Representative in substantially the form of Exhibit C hereto, provided that Borrower shall deliver covenant calculations for the covenant set forth in Section 6.8 within thirty (30) days of the last day of each month at all times that the aggregate balance of Borrower’s unrestricted cash and cash equivalents located in the United States minus the aggregate balance of all Indebtedness (including without limitation any Contingent Obligations) owing from Borrower to Bank, is less than Thirty Five Million Dollars ($35,000,000).
Appears in 1 contract
Samples: Loan and Security Agreement (Wj Communications Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to BankCollateral Agent: (i) as soon as available, but in any event within thirty no later than forty-five (3045) days after the end last day of each calendar monthquarter, a company prepared consolidated and consolidating balance sheet, sheet and income statement covering the consolidated operations of Borrower and statement of cash flow, covering Borrower's operations during its Subsidiaries for such period, month certified by a Responsible Officer and in a form reasonably acceptable to Bank and certified by a Responsible OfficerCollateral Agent; (ii) as soon as available, but in any event within no later than one hundred fifty twenty (150120) days after the end last day of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)from the Auditor; (iii) as soon as available after approval thereof by Borrower’s Board of Directors, but no later than sixty (60) days after the last day of Borrower’s fiscal year, Borrower’s financial projections for current fiscal year as approved by Borrower’s Board of Directors; (iv) within five (5) days of delivery, copies of all statements, reports and notices sent or made available generally by Borrower to its all of Borrower’s security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) or moreDebt; (v) promptly upon receiptBorrower shall provide each Lender with, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not no later than January 31 of each calendar yearfive (5) days after filing with the Securities Exchange Commission, Borrower’s Reports on Form 10-K, 10-Q, and within seven (7) days of any board8-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing DateK; (viivi) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course prompt notice of business as Bank may reasonably request from time to time; and (viiiA) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's the composition of the Intellectual Property CollateralProperty, (B) quarterly notice of the registration of any copyright, including but not limited to any subsequent ownership right of Borrower in or to any Trademarkcopyright, Patent patent or Copyright not previously identified trademark, and (C) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to Bankmaterially and adversely affect the value of the Intellectual Property; and (vii) budgets, sales projections, operating plans and other financial information reasonably requested by Collateral Agent. Borrower’s Reports on Form 10-K, 10-Q, and 8-K required to be delivered pursuant hereto shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower’s or another website (including xxx.xxx.xxx) on the Internet.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within fifty (50) days after the end of each fiscal quarter (until such time as Borrower's Adjusted Quick Ratio is less than or equal to 2.50:1.00, at which time the delivery time shall be within thirty (30) days after the end of each calendar month), a company prepared consolidated balance sheet, income income, and cash flow statement and statement of cash flow, covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty ninety-five (15095) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time and generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time business, including but not limited to timeannual financial projections (including balance sheet and income statement for each fiscal year), no later than January 31 immediately preceding the fiscal year for which the projections are being provided; and (viiif) within thirty forty-five (3045) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateralintellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement. Within twenty (25) days after the last day of each month from and after Advances become available to Borrower pursuant to Section 2.1(a), Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable, and a report, by location, of consigned inventory having an aggregate book value equal to or greater than $500,000. Borrower shall deliver to Bank with the quarterly (or monthly, as appropriate) financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto.
Appears in 1 contract
Samples: Loan and Security Agreement (Tippingpoint Technologies Inc)
Financial Statements, Reports, Certificates. Borrower Parent shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 45 days after the end of each calendar monthquarter, a company prepared consolidated and consolidating balance sheet, sheet and income statement covering Parent’s and statement of cash flow, covering Borrower's its Subsidiaries operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) 90 days after the end of Borrower's Parent’s fiscal year, audited consolidated and consolidating financial statements of Borrower Parent and its Subsidiaries prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower Parent and its Subsidiaries to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower Parent or any Subsidiary of Parent that could result in damages or costs to Borrower Parent or any Subsidiary of One Hundred Thousand Dollars (Parent of $100,000.00) 100,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's Parent’s independent certified public accounting firm regarding each Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower Borrowers in the ordinary course of business as Bank may reasonably request from time to time; (vii) as soon as available, but in any event within 60 days of the end of each of Parent’s fiscal years, annual financial projections for the upcoming fiscal year of Parent and its Subsidiaries, including, but not limited to, a company prepared balance sheet and income statement, in a form acceptable to Bank and certified by a Responsible Officer; and (viii) within thirty (30) 30 days of the last day of each fiscal quarter, a report signed by BorrowerResponsible Officer, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower Parent has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Borrowers’ Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower Borrowers in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrowers in connection with this Agreement.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company company-prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) beginning with the fiscal year ending December 31, 2002, as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt Debt, and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiif) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including including, but not limited to to, any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Safeguard Scientifics Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver Deliver to BankAgent, with copies to each Lender: (i) as soon as available, but in any event within thirty 30 days (3045 days (or, if such Person has filed a filing extension with the SEC, 50 days) days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each calendar monthmonth during each of Parent's fiscal years, a company prepared consolidated and, solely in the case of a month that is the end of one of the fiscal quarters of the Parent, consolidating balance sheet, income statement statement, and statement of cash flow, flow covering BorrowerParent's and its Subsidiaries' operations during such period, a certificate signed by the chief financial officer or vice president/treasurer of Parent to the effect that: the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its Subsidiaries, [Intentionallyintentionally omitted], and there does not exist any condition or event that constitutes a form reasonably acceptable Default or Event of Default (or, to Bank the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and certified by what action Loan Parties have taken, are taking, or propose to take with respect thereto), and for each month that is the date on which a Responsible Officer; (ii) financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and as soon as available, but in any event within one hundred fifty 90 days (150or, if such Person has filed a filing extension with the SEC, 105 days) days after the end of Borrowereach of Parent's fiscal years, financial statements of Parent and its Subsidiaries for each such fiscal year, prepared on a consolidated basis, audited consolidated financial statements of Borrower by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified GAAP (including no going concern comment or qualification) on such audited financial statements to include a balance sheet, income statement, and statement of a PCAOB-registered independent certified public accounting firm reasonably acceptable cash flow and, if prepared, such accountants' letter to Bank (Bank acknowledges that CohnReznick LLP is acceptablemanagement); (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not no later than January 31 30 days after the start of each calendar yearof Parent's fiscal years, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days copies of the last day of each fiscal quarter, a report signed by BorrowerLoan Parties' Projections, in form reasonably acceptable (including as to Bankscope and underlying assumptions) satisfactory to Agent, listing in its sole discretion, for the forthcoming year, month by month, certified by the chief financial officer or vice president/treasurer of Parent as being such officer's good faith best estimate of the financial performance of Parent and its Subsidiaries during the period covered thereby, if and when filed by any applications or registrations Loan Party, 10‑Q quarterly reports, Form 10‑K annual reports, and Form 8‑K current reports, any other filings made by any Loan Party with the SEC, copies of the Loan Parties' federal income tax returns (if requested by Agent), and any amendments thereto, filed with the Internal Revenue Service, and any other information that Borrower has made or filed in respect is provided by Parent to its shareholders generally, [Intentionallyintentionally omitted], promptly upon any Loan Party obtaining knowledge of any Patentsevent or condition that constitutes a Default or an Event of Default, Copyrights notice thereof and a statement of the curative action that Loan Parties propose to take with respect thereto, and upon the request of Agent, any other report reasonably requested relating to the financial condition of the Loan Parties. The Loan Parties agree that no Loan Party, nor any Subsidiary of a Loan Party, will have a fiscal year different from that of Parent. The Loan Parties will permit the Agent or Trademarks any Lender, and any agent designated by the status of any outstanding applications or registrationsforegoing, as well as any material change in upon reasonable prior notice, to discuss its operations, business affairs, assets, liabilities (including contingent liabilities) and financial condition with its officers and no more than once per year, independent accountants, all at such reasonable times during normal business hours and upon reasonable advance notice to the Administrative Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank. [Intentionally omittedOmitted].
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver ------------------------------------------- to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar monthquarter, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably accepted to the Bank (Xxxxxx Xxxxxxxx shall be deemed to be acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptablethe Bank); (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivc) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could be reasonably likely to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars a Material Adverse Effect; and ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viid) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within . Within thirty (30) days of after the last day of each fiscal quartermonth, Borrower shall deliver to Bank a report Borrowing Base Certificate signed by Borrowera Responsible Officer in substantially the form of EXHIBIT C hereto, together with aged listings of --------- Accounts. Within thirty (30) days after the last day of each month, Borrower shall deliver to Bank a Compliance Certificate signed by a Responsible Officer in substantially the form reasonably acceptable of EXHIBIT D hereto. --------- Bank shall have a right from time to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in time hereafter to audit Borrower's Intellectual Property CollateralAccounts at Borrower's expense, including but not limited to any subsequent ownership right provided that such audits will be conducted no more often than every six (6) months unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income statement, and cash flow statement and statement of cash flow, covering Borrower's consolidated operations during such period, prepared in accordance with GAAP (except for the absence of footnotes and subject to normal year end adjustments), consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer, provided that such financial information shall only be required on a quarterly basis if no Event of Default has occurred which is continuing and there are no outstanding Credit Extensions; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iiib) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and, within 10 days of the Securities and Exchange Commission standard filing date, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange CommissionCommission (beginning Borrower's Form 10-K for the fiscal year ended December 31, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.22001); (ivc) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vid) as soon as available, but in any event not later than January 31 within thirty (30) days after the end of each calendar yearfiscal quarter, consolidating financial statements of Borrower prepared in accordance with GAAP, including consolidating balance sheet, income statement and within seven cash flow, consistently applied; and (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and business. Within fifteen (viii) within thirty (3015) days of after the last day of each fiscal quartermonth during which any Advances were outstanding at any time, Borrower shall deliver to Bank a report Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, including such information as is reasonably requested by Bank from time to time, and aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto. Bank shall have a right from time to time hereafter to audit Borrower's Accounts and appraise Collateral at Borrower's expense, in form reasonably acceptable to Bankprovided that such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing. Notwithstanding the foregoing, listing at any applications or registrations time that no Credit Extensions are outstanding, such audits will be conducted no more than once every twelve (12) months so long as no Event of Default has occurred which is continuing, provided that Borrower may not request nor receive any Credit Extension unless an audit has made or filed in respect of any Patents, Copyrights or Trademarks and been conducted within the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited six months immediately prior to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankthe date on which such Credit Extension was made.
Appears in 1 contract
Samples: Loan and Security Agreement (Avistar Communications Corp)
Financial Statements, Reports, Certificates. Borrower shall deliver Deliver to BankAgent (and if so requested by Agent, with copies for each Lender) each of the financial statements, reports, or other items set forth below at the following times: (i) as soon as available, but in any event within thirty (30) 45 days after the end of each calendar monthof Parent’s first three fiscal quarters of any fiscal year, a company prepared (a) unaudited consolidated and consolidating balance sheet, income statement sheet and statement statements of cash flow, flow covering Borrower's Parent’s and its Subsidiaries’ operations during such periodperiod (which in the case of consolidating financial statements will be in the form consistent with such consolidating financial statements provided to the Initial Lenders prior to the Closing Date), in together with a form reasonably acceptable to Bank corresponding discussion and certified by analysis of results from management , and (b) a Responsible Officer; (ii) Compliance Certificate as soon as available, but in any event within one hundred fifty (150) 90 days after the end of Borrower's each of Parent’s fiscal years, (c) consolidated financial statements of Parent and its Subsidiaries for each such fiscal year, audited consolidated financial statements by independent certified public accountants reasonably acceptable to Agent (it being understood that Cherry Bekaert LLP is acceptable to Agent) and certified, without any qualifications (including any (A) “going concern” or like qualification or exception (other than any qualification that is expressed solely with respect to, or expressly resulting solely from, an upcoming maturity date under any Indebtedness occurring within one year from the time such opinion is delivered) or (B) qualification or exception as to the scope of Borrower such audit), by such accountants to have been prepared in accordance with GAAPGAAP (such audited financial statements to include a balance sheet, consistently appliedincome statement, statement of cash flow, and statement of shareholder’s equity, and, if prepared, such accountants’ letter to management), together with an opinion which is unqualified (including no going concern comment or qualificationx) on such a corresponding customary discussion and analysis of results from management and (y) consolidating financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iii) copies of all statements, reports Parent and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed Subsidiaries for such fiscal year in the form consistent with the Securities and Exchange Commission, such consolidating financial statements provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; Initial Lenders prior to the Closing Date, and (ivd) promptly upon receipt of notice thereofa Compliance Certificate, a 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 One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as availablepromptly, but in any event not later than January within 5 days after any Borrower has knowledge of, (e) any event or condition that constitutes a Default or an Event of Default, notice of such event or condition and a statement of the curative action that Borrowers propose to take with respect thereto, (f) any default or breach under, or termination of, any Material Contract of any Loan Party or Subsidiary, notice of such default, breach or termination and a statement of the curative action that Borrowers propose to take with respect thereto, (g) any material development in connection with disputes with suppliers to or customers of the Borrowers, including, without limitation, commencement and completion of arbitration, notice of such material development, (h) that any Loan Party or its Subsidiaries, an owner, officer, manager, employee or Person with a “direct or indirect ownership interest” (as that phrase is defined in 42 C.F.R. §420.201) in any Group Member: (i) has had a civil monetary penalty assessed against him or her pursuant to 42 U.S.C. §1320a-7a or is the subject of a proceeding seeking to assess such penalty; (ii) has been excluded from participation in a Federal Health Care Program (as that term is defined in 42 U.S.C. §1320a-7b) or Government Drug Rebate Program or is the subject of a proceeding seeking to assess such penalty; (iii) has been convicted (as that term is defined in 42 C.F.R. §1001.2) of any of those offenses described in 42 U.S.C. §1320a-7b or 18 U.S.C. §§669, 1035, 1347, 1518 or is the subject of a proceeding seeking to assess such penalty; or (iv) has been involved or named in a U.S. Attorney complaint made or any other action taken pursuant to the False Claims Act under 31 U.S.C. §§3729-3731 or in any qui tam action brought pursuant to 31 U.S.C. §3729 et seq.; any pending or threatened revocation, suspension, termination, probation, restriction, limitation, denial, or non-renewal with respect to any Health Care Permit or Registration, (i) any allegations of each calendar yearlicensure violations or fraudulent acts or omissions involving any Loan Party or any of its Subsidiaries, (j) the pending or threatened imposition of any material fine or penalty by any Governmental Authority under any Health Care Law against any Loan Party or any of its Subsidiaries, (k) the exclusion or debarment from any Government Drug Rebate Program or other federal healthcare program or debarment or disqualification by any Governmental Authority of any Loan Party, any of its Subsidiaries, or any of their officers, directors, employees, agents, or contractors, and (l) to the extent any 2015 Note Purchase Documents, 2017 Note Purchase Documents, 2017 Term Facility Document or Treximet Note Purchase Document is amended, modified, refinanced or otherwise changed pursuant to the terms of Section 6.6(a)(ii) of the Agreement, copies of any such amendment, modification, refinancing or other change. promptly, but in any event within seven (7) 5 days of any boardBorrower providing or receiving, as applicable, (m) copies of all settlement agreements entered into by a Loan Party, (n) any notice received by a Loan Party or any of its Subsidiaries alleging potential or actual violations of any Health Care Law, (o) any notice that any Regulatory Authority is limiting, suspending or revoking any Registration, requiring adverse changes to the marketing classification, distribution pathway or parameters, or labeling of the products of any Loan Party or any of its Subsidiaries, or considering any of the foregoing, (p) any notice, including, but not limited to, a Form FDA-483, untitled letter, warning letter, or notice of violation letter, that any Loan Party or any of its Subsidiaries has become subject to any Regulatory Action, and (q) any notice that any Product of any Loan Party or any of its Subsidiaries has been seized, withdrawn, recalled, detained, or subject to a suspension of manufacturing, or the commencement of any proceedings seeking the withdrawal, recall, suspension, import detention, or seizure of any Product are pending or threatened against any Loan Party or any of its Subsidiaries. Promptly, but in any event within 15 days after (r) form 10-approved modifications theretoK annual reports, Borrower's financial and business projections and budgetthe same are required to be filed with the SEC, presented (s) form 10-Q quarterly reports, promptly after the commencement thereof or any material development therein, but in any event within 5 days after the service of process with respect thereto on Parent or any of its Subsidiaries, (t) notice of the commencement or any material development in all actions, suits, or proceedings brought by or against Parent or any of its Subsidiaries before any Governmental Authority (i) alleging a potential or actual violation of Health Care Laws, or (ii) which could otherwise reasonably could be expected to result in a month-by-month formatMaterial Adverse Effect. upon the reasonable request of Agent or the Required Lenders, for (u) any other information reasonably requested relating to the financial condition of Parent or its Subsidiaries. Documents required to be delivered pursuant to Section 5.1 of the Agreement in respect of information filed by any Loan Party with any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities shall be deemed to have been delivered on the date on which such yearitems have been made publicly available on the SEC website or the website of the relevant analogous governmental or private regulatory authority or securities exchange. Schedule 5.2 Provide Agent (and if so requested by Agent, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viicopies for each Lender) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days with each of the last day of each fiscal quarter, a report signed by Borrowerdocuments set forth below at the following times, in form reasonably acceptable satisfactory to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.Agent:
Appears in 1 contract
Samples: Credit Agreement (Pernix Therapeutics Holdings, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to BankLender or make available on its website: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such periodperiod prepared in accordance with GAAP, in a form reasonably acceptable to Bank Lender and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Lender on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Lender; (iii) if applicable, either (a) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower or (b) a link to Bank of the filing of Borrower’s website where such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2information is posted; (iv) promptly upon receipt of notice thereof, a 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 One Three Hundred Thousand Dollars ($100,000.00300,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not no later than March 15, 2011 with respect to 2011 and January 31 of each calendar year for each subsequent year, and within seven an annual business plan (7including operating budget) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed directors and approved by Bank prior to the Closing Date; (vii) such other budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank Lender may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Complete Genomics Inc)
Financial Statements, Reports, Certificates. (a) Borrower shall deliver to BankAgent and each Lender: (i) as soon as available, but in any event within no later than thirty (30) days after the end last day of each calendar month, a company prepared consolidated balance sheet, income statement and cash flow statement covering the consolidated operations of cash flow, covering Borrower's operations during Borrower and its Subsidiaries for such period, month certified by a Responsible Officer and in a form reasonably acceptable to Bank Agent and certified by a Responsible Officereach Lender; (ii) as soon as available, but in any event within no later than one hundred fifty (150) days after the end last day of a Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no other than a qualification as to going concern comment or qualificationa qualification resulting solely from the scheduled maturity of the Advances occurring within one year from the date such opinion is delivered) on such the financial statements of a PCAOB-registered from Ernst & Young LLP or another independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Agent; (iii) as soon as available after approval thereof by Borrower’s governing board, but no later than sixty (60) days after the last day of Borrower’s fiscal year, and as amended and/or updated, Borrower’s financial projections for the current fiscal year; (iv) within five (5) days of delivery, copies of all statements, reports and notices sent or made available generally by Borrower to its all of Borrower’s security holders or to any holders of Subordinated Debt and Debt; (v) in the event that any Credit Party is or becomes subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; Commission (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00“SEC”) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systemsa link thereto on such Credit Party’s or another website on the Internet; (vi) as soon as available, but no later than thirty (30) days after the last day of each month, copies of the month-end account statements for each Collateral Account maintained by a Credit Party, which statements may be provided to Agent and each Lender by Borrower or directly from the applicable institution(s); (vii) promptly (and in any event not later than January 31 of each calendar year, and within seven ten (710) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viirequest therefor) such readily available budgets, sales projections, operating plans or other plans, financial information generally prepared and other information, reports or statements regarding the Credit Parties or their respective businesses, contractors and subcontractors reasonably requested by Borrower in the ordinary course of business as Bank may reasonably request from time to timeAgent or any Lender; and (viii) within thirty ten (3010) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing after any applications or registrations that Borrower has made or filed in respect Credit Party becomes aware of any Patents, Copyrights claim or Trademarks and the status adjustment proposed for any prior tax years of any outstanding applications Credit Party or registrationsany of their Subsidiaries which could result in material additional Taxes becoming due and payable by such Credit Party or Subsidiary, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right notice of Borrower in such claim or to any Trademark, Patent or Copyright not previously identified to Bankadjustment.
Appears in 1 contract
Samples: Credit and Security Agreement (Recursion Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver Deliver to BankAgent (and if so requested by Agent, with copies for each Lender) 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 in any event no later than the 45th day after the end of each fiscal quarter during each of Borrower’s fiscal years, except the fourth fiscal quarter, (ia) an unaudited consolidated balance sheet as of the last day of Borrower’s first three fiscal quarters and an income statement and statement of cash flow, covering Borrower’s operations on a consolidated basis for such period and compared to the prior quarter, (b) a reconciliation of billed and unbilled Accounts and trade accounts payable of Borrower’s general ledger accounts to its quarterly financial statements including any book reserves related to each category, and (c) a Compliance Certificate. as soon as available, but in any event no later than the 90th day after the end of each of Borrower’s fiscal years during the term of the Agreement, (d) consolidated balance sheet as of the last day of Borrower’s fiscal year, and an income statement and statement of cash flow covering Borrower’s operations on a consolidated basis for such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any of the following qualifications (including any (A) “going concern” or like qualification or exception, other than for fiscal year 2013 provided such “going concern” qualification is solely with respect the pending maturities of Borrower’s existing Indebtedness, its recurring net losses and its excess of liabilities over its assets, (B) qualification or exception as to the scope of such audit, or (C) 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 5.07 of the Agreement), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of shareholder’s equity, and, if prepared, such accountants’ letter to management), and (e) a Compliance Certificate. as soon as available, but in any event within thirty (30) 30 days after prior to the end start of each calendar of Borrower’s fiscal years, or more (f) copies of Borrower’s Projections (including management’s projected (and audited and non-reviewed) income statements, balance sheets and cash flow statements), in form and substance satisfactory to Agent, in its sole but reasonable discretion, for the forthcoming fiscal year, month by month, a company prepared consolidated balance sheet, income statement and statement of cash flow, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; the chief financial officer of Borrower as being the Borrower’s good faith projection of the financial performance of Borrower during the period covered thereby subject to frequently upon any material change to Borrower’s business, assumptions believed by Borrower to be reasonable at the time of the delivery of such Projections to Agent (iiit being understood that such Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and their Subsidiaries, and no assurances can be given that such Projections will be realized, and although reflecting Borrower’s good faith estimate, projections or forecasts based on methods and assumptions which Borrower believed to be reasonable at the time such Projections were prepared, are not to be viewed as facts, and that actual results during the period or periods covered by the Projections may differ materially from projected or estimated results. if and when filed by Borrower, (g) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, all within 5 days of filing (h) any other filings made by Borrower with the SEC, and (i) any other information that is provided by Borrower to its shareholders generally in their capacity as soon shareholders and not information generally provided to individuals in their capacity as availableemployees. promptly, but in any event within one hundred fifty no later than 5 Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, (150j) days notice of such event or condition and a statement of the curative action that Borrower proposes to take with respect thereto. promptly after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice commencement thereof, a 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 One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not no later than January 31 5 Business Days after the service of process with respect thereto on Borrower or any of its Subsidiaries, (k) notice of all actions, suits, or proceedings brought by or against Borrower or any of its Subsidiaries before any Governmental Authority which reasonably could be expected to result in a Material Adverse Effect. upon the request of Agent, (l) true, correct and complete copies of all Material Government Contracts (including current and ongoing modifications) which support any Loan Party’s receivables. (m) any other information reasonably requested relating to the financial condition of Borrower or its Subsidiaries. as soon as practicable and in any event (i) no later than 10 Business Days after receipt, by the Borrower’s Board of Directors and the Borrower’s ESOP Committee of the annual valuation report prepared for the ESOP for each fiscal year, (n) true, correct and complete copies of such semi-annual valuation report prepared for the ESOP for each fiscal year. Borrower shall alert Agent within 10 days of completion of each calendar yearvaluation, and within seven (7) days of any board-approved modifications thereto, Borrower agrees to make such valuations available at Borrower's financial and business projections and budget, presented in a month-by-month format, ’s office for Agent to review such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided valuations. on the date that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to is the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days second anniversary of the last day delivery of each fiscal quarterthe most recent repurchase liability study of the Borrower prepared for the ESOP (o) true, correct and complete copies of a report signed by Borrowerrepurchase liability study of Borrower prepared for the ESOP as of a recent date, in each case in form and substance reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks the Agent. Schedule 5.2 to Second Amended and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.Restated Credit Agreement
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to BankLender: (ia) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthquarter, a company prepared consolidated balance sheet, income statement, and cash flow statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank Lender and certified by a Responsible OfficerOfficer (the “Quarterly Financial Statement”), together with details of Borrower’s Recurring Revenue reported for the most recent quarter-end, provided, however, to the extent any such financial statements are included in materials otherwise filed with the Securities and Exchange Commission (the “SEC”), such financial may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on Borrower’s behalf on an Internet or intranet website; (iib) as soon as available, but in any event within one hundred fifty twenty days (150120) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank Lender (Bank acknowledges that CohnReznick LLP is acceptablethe “Annual Financial Statement”); , provided, however, to the extent any such financial statements are included in materials otherwise filed with the Securities and Exchange Commission (the “SEC”), such financial may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on Borrower’s behalf on an Internet or intranet website (c) as soon as available, but in any event within forty-five (45) days after the end of each calendar quarter, a company prepared report on key operating metrics tracked by Borrower covering Borrower’s consolidated operations during such period, including, without limitation, analysis of: (i) gross dollar retention, (ii) net dollar retention, (iii) logo retention and (iv) any other key performance indicators tracked by Borrower; (d) copies of of, or internet links to, all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ive) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; (vf) promptly upon receiptwithin sixty (60) days after the end of each fiscal year of Borrower, and contemporaneously with any updates or amendments thereto, annual financial projections for the following fiscal year (on a quarterly basis), in each management letter prepared case as approved by the Borrower's independent certified public accounting firm regarding Borrower's management control systems’s Board of Directors, together with any related business forecasts used in the preparation of such annual financial projections; (vig) as soon as available, but in any event not later than January 31 within sixty (60) days prior to the end of each calendar yearfiscal year of Borrower, and within seven (7) days of contemporaneously with any board-approved modifications updates or amendments thereto, Borrower's financial and business projections and ’s anticipated Recurring Revenue budget, presented in a month-by-month formatas approved by the Borrower’s Board of Directors, for such yearthe following fiscal year (the “Financial Projections), with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viih) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank Lender may reasonably request from time to time; and . Within forty-five (viii) within thirty (3045) days of after the last day of each fiscal calendar quarter, commencing with the calendar quarter ended December 31, 2020, Borrower shall deliver to Lender a report Borrowing Base Certificate signed by Borrowera Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable and a computer file with information on all Recurring Revenue included in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property CollateralBorrowing Base Certificate, including but not limited to, current detailed information on the identities of all Account Debtors, current balances owed, addresses and email contacts. Borrower shall deliver to any subsequent ownership right Lender with the Quarterly Financial Statements and the Annual Financial Statement, a Compliance Certificate signed by a Responsible Officer in substantially the form of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankExhibit D hereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty forty five (3045) days after the end of each calendar monthquarter, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer, together with a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K (which shall be delivered within ninety (90) days after the end of each fiscal year of Borrower) and 10-Q as and when (which shall be delivered within forty-five (45) days after the end of each fiscal quarter of Borrower ) filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Five Million Dollars ($100,000.005,000,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projectionsprojections and pipelines, operating plans or other financial exhibits and information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 20 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty 50 days after the end of each fiscal quarter of Borrower, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (150iii) as soon as available, but in any event within 95 days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiiiv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) 95 days of after the last day of each fiscal quarteryear of Borrower, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankProperty.
Appears in 1 contract
Financial Statements, Reports, Certificates. Lead Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty (30) days days, after the end of each calendar month, a company prepared consolidated balance sheet, sheet as at the end of such calendar month and income and cash flow statement and statement of cash flow, covering Lead Borrower's ’s consolidated operations during such periodcalendar month, prepared in accordance with Lead Borrower’s ordinary practices, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within forty-five (45) days after the end of each quarter (other than the last fiscal quarter of any calendar year), consolidated financial statements of Lead Borrower prepared in accordance with GAAP, consistently applied, and reviewed by Mxxxxx & Kxxxxxxx LLP or by another independent certified public accounting firm reasonably acceptable to Bank; (c) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Lead Borrower's ’s fiscal year, audited consolidated financial statements of Lead Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered Mxxxxx & Kliegman LLP or by another independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiid) if not available through the internet, copies of all reports (if any) on Forms 10-K and 10-Q filed with the Securities and Exchange Commission and all other statements, reports and notices sent or made generally available generally by Lead Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Debt; (ive) promptly upon following receipt of notice thereof, a report of any legal actions pending or threatened against any Borrower or any Subsidiary that could result in damages or costs to such Borrower or any Subsidiary of One Two Hundred and Fifty Thousand Dollars ($100,000.00250,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or and other financial information generally prepared by Borrower in (including information related to the ordinary course verification of business any Borrower’s Accounts) as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Orchard Enterprises, Inc.)
Financial Statements, Reports, Certificates. (a) Borrower shall will deliver to Bank: (i) as soon as available, but in any event within thirty no later than five (305) days after Borrower files its Form 10-Q with the end of each calendar monthSecurities Exchange Commission ("SEC"), a company prepared consolidated quarterly balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such the period, in a form reasonably acceptable to Bank and certified by a Responsible OfficerOfficer and in a form acceptable to Bank; (ii) as soon as available, but in any event within one hundred fifty no later than five (1505) days after Borrower files its Form 10-K with the end of Borrower's fiscal yearSEC, audited annual consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that a prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Five Million Dollars ($100,000.005,000,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (viiv) as soon as available, but in any event not later no more than January 31 forty five (45) after the end of each calendar fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, forecast for such the next fiscal year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided toincluding, reviewed without limitation, projected balance sheets, income statements and approved by Bank prior to the Closing Datecash flows; (viiv) upon request of Bank, such other financial information, including, budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business plans, as Bank may reasonably request from time to timerequests; and (viiivi) within thirty (30) days prompt notice of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's the composition of the Intellectual Property CollateralProperty, including but not limited to any subsequent ownership right of Borrower in or to any TrademarkCopyright, Patent or Copyright Trademark not previously identified shown in the Intellectual Property Security Agreement or knowledge of an event that materially adversely affects the value of the Intellectual Property. Borrower's 10K and 10Q reports required to be delivered pursuant to this Section shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by subsection (b) below. Bank will take reasonable and customary steps to insure that information provided to Bank pursuant to this Agreement will not be provided to Bank employees with responsibility for making any investment decisions with respect to Bank's equity ownership in Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Callidus Software Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement, and cash flow statement and statement of cash flow, covering Borrower's ’s consolidated and consolidating operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vie) as soon as available, but in any event not no later than January 31 the earlier to occur of thirty (30) days following the beginning of each calendar fiscal year or the date of approval by Borrower’s board of directors, an annual operating budget and financial projections (including income statements, balance sheets and cash flow statements) for such fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month monthly format, for such year, with written certification signed by a Responsible Officer of approval thereof approved by Borrower's ’s board of directors, and in a form and substance acceptable to Bank; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within . Within thirty (30) days of after the last day of each fiscal quartermonth, Borrower shall deliver to Bank a report Borrowing Base Certificate signed by Borrowera Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable and a deferred revenue schedule, all in form reasonably acceptable and substance satisfactory to Bank. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto. Bank shall have a right from time to time hereafter to audit Borrower’s Accounts and appraise Collateral at Borrower’s expense, listing any applications or registrations provided that Borrower such audits will be conducted no more often than every twelve (12) months unless an Event of Default has made or filed in respect of any Patents, Copyrights or Trademarks occurred and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankis continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company Borrower prepared consolidated balance sheet, sheet and income statement and statement of cash flow, prepared in accordance with GAAP covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivc) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; (vd) promptly upon receiptfiling, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as availablecopies of all filings made with the Securities and Exchange Commission, but in any event not later than January 31 case Form 10-K within ninety (90) days after the end of Borrower's fiscal year and Form 10-Q within forty-five (45) days after the end of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial fiscal quarters; and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and . Within ten (viii) within thirty (3010) days of after the last day of each fiscal quartermonth, Borrower shall deliver to Bank a report Borrowing Base Certificate signed by Borrowera Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form reasonably acceptable of Exhibit D hereto. Bank shall have a right from time to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in time hereafter to audit Borrower's Intellectual Property CollateralAccounts and appraise Collateral at Borrower's expense, including but not limited to any subsequent ownership right provided that such audits will be conducted no more often than every six (6) months unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing.
Appears in 1 contract
Samples: Intellectual Property Security Agreement (Uol Publishing Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement or monthly bank and statement of cash flow, investment statements covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank, together with investment statements; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) within the earlier of five (5) days of filing and five (5) days of the applicable reporting deadline, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as (together with Borrower's quarterly financial statements) and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a written report to the Bank of any legal actions pending or threatened against Borrower or any Subsidiary that could is likely to result in damages or costs to Borrower or any Subsidiary of One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) for any individual action or morewhich action may cause damages which could have been asserted against Borrower or its Subsidiaries to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate; (ve) promptly upon receiptall press releases and any and all other forms of public information, each management letter prepared by Borrowerwithin a reasonable time, in Bank's independent certified public accounting firm regarding Borrower's management control systemssole discretion, following the distribution date of same; and (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of . Borrower shall deliver to Bank with the last day of each fiscal quarter, monthly financial statements a report Compliance Certificate signed by Borrower, a Responsible Officer in substantially the form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankEXHIBIT D hereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement and statement of cash flow, flows covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible OfficerOfficer (for the avoidance of doubt, such Company prepared financial statements shall not be required to have accompanying notes or schedules); (ii) as soon as available, but in any event within one hundred fifty (150) 180 days after the end of Borrower's ’s fiscal year, audited (or such other level as is required by the Investment Agreement) consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no either unqualified, qualified only for going concern comment so long as Borrower’s investors provide additional equity as needed or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) annual budget approved by Borrower’s board of directors as soon as available but not later than January 30th of each year during the term of this Agreement; (iv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 500,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan Agreement (PogoTec, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iiib) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and as soon as available, but in any event within five (5) days after the filing thereof, all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices Commission including without limitation on Forms 10-K and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.210-Q; (ivc) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vid) as soon as available, but in any event not no later than January 31 sixty (60) days after the beginning of each calendar Borrower’s fiscal year, an operating budget in form reasonably acceptable to Bank and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; . Agility shall have the right to review and (viii) within thirty (30) days of copy Borrower’s books and records and audit and inspect the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited from time to any subsequent ownership time, upon reasonable notice to Borrower. Agility or its officers, employees, or agents shall have a right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankvisit Borrower’s premises and interview Borrower’s officers at Borrower’s expense.
Appears in 1 contract
Samples: Loan Agreement (Kana Software Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement covering Modern’s and statement of cash flow, covering Borrower's each Subsidiaries’ operations during such period, prepared in accordance with GAAP, and in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of each fiscal year of Borrower's , company prepared consolidated and consolidating financial statements of Borrower, together with a balance sheet and income statement covering Modern’s and each Subsidiaries’ operations during such period, prepared in accordance with GAAP, and in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iii) as soon as available, but in any event within one hundred fifty (150) days after the end of each fiscal year of Parent, commencing with the fiscal year ending December 31, 2014, company prepared consolidating financial statements of Parent, together with a balance sheet and income statement covering Parent’s and each Subsidiaries’ operations during such period, prepared in accordance with GAAP, and in a form reasonably acceptable to Bank and certified by an officer of Parent; (iv) as soon as available, but in any event within one hundred fifty (150) days after the end of Parent’s fiscal year, audited consolidated financial statements of Borrower Parent prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiiv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivvi) promptly upon receipt of notice thereof, a 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 One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vivii) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such the then current or immediately following (as applicable) year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viiviii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiiix) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.”
Appears in 1 contract
Samples: Loan and Security Agreement (Bluephoenix Solutions LTD)
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) as soon as available, but in any event within thirty no later than five (305) days after filing with the Securities Exchange Commission, Borrower’s 10-K, 10-Q, and 8-K reports (provided however, in no event shall audited annual financial statements be delivered later than 150 days of fiscal year end), except that Borrower shall be required to deliver its 10-Q reports to Bank beginning the earlier of the delivery date of the initial Notice of Borrowing or June 30, 2010 but not before such date; (ii) a Compliance Certificate together with delivery of the 10-K and 10-Q reports setting forth calculations showing compliance with the financial covenants set forth herein; (iii) no later than January 31st after the end of each calendar month, a company prepared consolidated balance sheet, income statement and statement of cash flow, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's fiscal year, audited consolidated annual financial statements projections for the following fiscal year (on a quarterly basis) as approved by Borrower’s board of Borrower prepared in accordance with GAAP, consistently applieddirectors, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable); (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with related business forecasts used in the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing preparation of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2annual financial projections; (iv) promptly upon receipt of notice thereof, 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 One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to timerequests; and (viiivi) within thirty five (305) days after the same are sent or received, copies of all correspondence, reports, documents and other filings with any Governmental Authority regarding compliance with or maintenance of Governmental Approvals or Requirements of Law or that could reasonably be expected to have a material effect on any of the last day Governmental Approvals or otherwise on the operations of each fiscal quarterBorrower or any of its Subsidiaries. Borrower’s 10-K, 10-Q, and 8-K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a report signed by link thereto on Borrower’s or another website on the Internet; provided, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect shall provide copies to Bank of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankCompliance Certificates required by Section 6.2(a)(ii).
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating cash balance statement, in a form reasonably acceptable to Bank and certified by a Responsible Officer, (ii) as soon as available, but in any event within 45 days after the end of each fiscal quarter of Borrower, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iiiii) as soon as available, but in any event within one hundred fifty (150) 90 days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiiiv) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) 30 days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Borrower shall deliver the following to BankAgent by email to the address specified pursuant to Article 11 (and Agent shall deliver same to Lenders immediately upon receipt thereof), and Agent and Lenders shall be entitled to rely on the information contained therein: (i) as soon as available, but in any event within the earlier of (x) forty-five (45) days after the end of each calendar quarter and (y) the date on which delivered to the SEC, Parent’s consolidated financial statements including a cash flow statement, income statement and balance sheet for the period reported, and certified by a Responsible Officer of Parent; (ii) if a Default or Event of Default has occurred and is continuing, as soon as available, but in any event within thirty (30) days after the end of each calendar monthmonth (in form and substance satisfactory to the Required Lenders), Parent’s consolidated financial statements including a company prepared consolidated balance sheetcash flow statement, income statement and statement of cash flowbalance sheet for the period reported, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible OfficerOfficer of Parent; (iiiii) as soon as available, but in any event within the earlier of (x) one hundred fifty and twenty (150120) days after the end of Borrower's Parent’s fiscal yearyear and (y) the date on which delivered to the SEC, audited consolidated financial statements of Borrower prepared Parent in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)the Initial Lenders; (iiiiv) as soon as available, but in any event within thirty (30) days prior to the end of Parent’s fiscal year, an annual operating budget and financial projections (including income statements, balance sheets and cash flow statements) for such fiscal year, presented in a quarterly format reasonably acceptable to the Required Lenders; (v) copies of all statements, reports and notices sent or made available generally by Borrower any Loan Party to its security holders or and debt holders, when made available to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2holders; (ivvi) promptly upon receipt of written notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary Loan Party that could reasonably be deemed to result in damages damages, fines, penalties or costs to Borrower other sanctions by any Governmental Authority payable by any Loan Party exceeding the Threshold Amount, or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) claims for injunctive or moreequitable relief; (vvii) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; receipt thereof (vi) as soon as available, but in any event not later no more than January 31 three (3) Business Days thereafter), (A) copies of each calendar yearany amendments, waivers, consents or other modifications to any Intermediation Facility Documents or any other documents relating to Indebtedness in excess of the Threshold Amount, as applicable, (B) notices of default required to be delivered pursuant to any Intermediation Facility Documents, or any other documents relating to Indebtedness in excess of the Threshold Amount, as applicable, (C) notices of material adverse changes, and within seven (7D) days notice of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer Change of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing DateControl; (viiviii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank Agent or any Lender may reasonably request from time to time; time promptly after such request and (viiiix) environmental, social and corporate governance related materials reasonably requested by the Lenders, including the BlackRock ESG Questionnaire within thirty (30) 75 days of after the last day end of each fiscal quarteryear. Notwithstanding the foregoing, a report signed any Lender may request to not receive any information that may constitute material non-public information from the Agent, it being acknowledged that such documents or information may include amendments or requests for amendment that have been designated as “private side” information by the Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower The Guarantor shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement covering the consolidated operations of cash flow, covering Borrower's operations the Consolidated Group during such period, in a form and certified by an officer of the Guarantor reasonably acceptable to Bank and certified by a Responsible OfficerBank; (ii) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's the fiscal yearyear of the Consolidated Group, audited consolidated and consolidating financial statements of Borrower the Consolidated Group, prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) within five (5) days of filing, copies of all statements, reports and notices sent or made available generally by Borrower the Guarantor and the Borrowers to its their security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K or similar reports filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Commission or any other public authority; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against the Guarantors, any Borrower or any Designated Subsidiary that could result in damages or costs to Borrower or any Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within . Within thirty (30) days of after the last day of each fiscal quartermonth, the Guarantor shall deliver to Bank with the monthly financial statements a report Compliance Certificate signed by Borrowera Responsible Officer in substantially the form of EXHIBIT A hereto. Bank shall have a right from time to time hereafter to audit the books and records of Guarantor at Guarantor's expense, provided that such audits will be conducted no more often than twice in form reasonably acceptable to Bank, listing any applications or registrations that Borrower year unless an Event of Default has made or filed in respect of any Patents, Copyrights or Trademarks occurred and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankis continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower Borrowers shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar monthmonth (other than a month which is the last month of a fiscal quarter in which case subparagraph (b) below shall govern), a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's Borrowers' consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iib) as soon as available, but in any event within one hundred fifty forty-five (15045) days after the end of Borrower's each calendar quarter, a Company prepared consolidated balance sheet and income statement covering Borrowers' consolidated operations during such period, in a form and certified by an officer of Borrowers; (c) as soon as available, but in any event within ninety (90) days after the end of each Borrowers' fiscal year, audited consolidated financial statements of Borrower Borrowers prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiid) within one (1) day of filing, copies of all statements, reports and notices sent or made available generally by each Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against any Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00100,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within . Within thirty (30) days of after the last day of each fiscal quartermonth, Borrowers shall deliver to Bank a report Borrowing Base Certificate signed by Borrowera Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable. Borrowers shall deliver to Bank with the monthly or quarterly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form reasonably acceptable of Exhibit D hereto. Borrowers shall deliver weekly transaction reports, and each time an Advance is requested, for the purpose of reporting sales, audit memos and other collateral adjustments. Bank shall have a right from time to Bank, listing any applications or registrations that Borrower has made or filed in respect time hereafter to audit Accounts of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrationsBorrowers at Borrowers' expense, as well as any material change set forth in Borrower's Intellectual Property Collateral, including but Section 2.5(b) hereof. Initially it is intended that such audit will be quarterly. The first Advance shall not limited to any subsequent ownership right be made until completion of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankan audit of Borrowers' Accounts.
Appears in 1 contract
Samples: Loan and Security Agreement (Simione Central Holdings Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) no later than the earlier to occur of 45 days after the end of each calendar monthfiscal quarter or 5 days after filing of a Form 10-Q for such quarter with the Securities and Exchange Commission, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty (150) no later than the earlier to occur of 90 days after the end of Borrower's each fiscal yearyear of Borrower or 5 days after filing of a Form 10-K for such fiscal year with the Securities and Exchange Commission, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) 500,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiif) within thirty (30) days of the last day of each fiscal quarterupon request by Bank, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral’s Patents, including but not limited to any subsequent ownership right of Borrower in Copyrights, or to any Trademark, Patent or Copyright not previously identified to BankTrademarks.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s and its consolidated Subsidiaries’ operations during such period, prepared in accordance with GAAP (subject to normal year-end adjustments and without all required footnotes), and in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty forty five (15045) days after the end of each fiscal quarter, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and its consolidated Subsidiaries’ operations during such period, prepared in accordance with GAAP (subject to normal year-end adjustments and without all required footnotes), in the same form as the most recent financial statements with respect to Borrower and its consolidated Subsidiaries delivered to Bank and certified by a Responsible Officer; (iii) as soon as available, but in any event within ninety (90) days after the end of Borrower's ’s fiscal year, audited consolidated and unaudited consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, and in the same form as the most recent financial statements with respect to Borrower and its consolidated Subsidiaries delivered to Bank, together with with, for the audited consolidated financial statements only, an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank, which includes, as of the Closing Date, the accounting firm of Xxxxxxxx LLP; provided, however, that Bank (Bank acknowledges that CohnReznick LLP is acceptable)may, in its reasonable business judgment, deem such firm unacceptable after the Closing Date; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened in writing against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January July 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such the then current or immediately following year, as applicable, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such other budgets, sales projections, operating plans plans, financial exhibits or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30A) days simultaneously with the delivery of the last day financial statements required under clause (iii) (unless an Event of each fiscal quarterDefault has occurred and is continuing, in which case, upon demand by Bank), a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankProperty.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank. Notwithstanding the foregoing, Borrower shall deliver its (a) fiscal year 2009 annual consolidated and consolidating financial statements by May 31, 2011 and (b) fiscal year 2010 annual consolidated and consolidating financial statements by July 15, 2011, which financial statements shall be prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank (Bank acknowledges that CohnReznick LLP is acceptable)on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiivii) within thirty sixty (3060) days after the end of the last day of each Borrower’s fiscal quarteryear, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property CollateralProperty, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankCopyright.
Appears in 1 contract
Samples: Loan and Security Agreement (GCT Semiconductor Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver Deliver to BankFoothill: (ia) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar monthmonth during each of Borrowers' fiscal years, a company prepared consolidated and consolidating balance sheet, income statement statement, and statement of cash flow, flow covering Borrower's Borrowers' operations during such period, in a form reasonably acceptable provided, however, that the first month with respect to Bank and certified by a Responsible Officerwhich Borrowers shall provide such statement of cash flow shall be for Borrowers' operations during the month of July, 2000; (iib) as soon as available, but in any event within one hundred fifty (150forty-five) (45) days after of each June 30, Each month, together with the end of Borrower's fiscal year, audited consolidated financial statements provided pursuant to Section 6.3(a) and (b), Borrowers shall deliver to Foothill a certificate signed by the chief financial officer of Borrower Parent to the effect that: (i) all financial statements delivered or caused to be delivered to Foothill hereunder have been prepared in accordance with GAAPGAAP (except, consistently appliedin the case of unaudited financial statements, together for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the financial condition of Borrowers, (ii) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), (iii) for each month that also is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating in reasonable detail compliance at the end of such period with an opinion the applicable financial covenants contained in Section 7.20, (iv) for each month in which any Borrower proposes to make any Intercompany Loans, a Solvency Certificate certifying that each of such Borrower and the Borrower or Guarantor to whom such Borrower proposes to make such Intercompany Loan is unqualified Solvent (including no going concern comment or qualificationexcept as otherwise expressly permitted pursuant to Section 7.13) as of the end of the immediately preceding month; and (v) on the date of delivery of such financial statements certificate to Foothill there does not exist any condition or event that constitutes a Default or Event of a PCAOBDefault (or, in the case of clauses (i), (ii), or (iii), to the extent of any non-registered compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto). Borrowers shall have issued written instructions to its independent certified public accounting firm reasonably acceptable accountants authorizing them to Bank (Bank acknowledges communicate with Foothill and to release to Foothill whatever financial information concerning Borrowers that CohnReznick LLP is acceptable); (iii) Foothill may request. Borrowers hereby irrevocably authorize and direct all auditors, accountants, or other third parties to deliver to Foothill, at Borrowers' expense, copies of all Borrowers' financial statements, reports papers related thereto, and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report other accounting records of any legal actions pending or threatened against Borrower or any Subsidiary that could result nature in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar yearits possession, and within seven (7) days of to disclose to Foothill any board-approved modifications thereto, Borrower's information they may have regarding Borrowers' business affairs and financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankconditions.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, in a form and certified by an Officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iib) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no except as to going concern comment or qualificationstatus) opinion on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) within five (5) days of filing, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiie) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral’s intellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to Bank.Bank by Borrower in connection with this Agreement, (f) as soon as available, updated financial projections of Borrower, and (g) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time. Within twenty (20) days after the last day of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form Exhibit D hereto, together with aged listings of accounts receivable and accounts payable. Within thirty (30) days after the last day of each month, Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit E hereto. Bank shall have a right prior to the initial Advance and from time to time thereafter to audit Borrower’s Accounts at Borrower’s expense, provided that such audits will be conducted no more often than every twelve (12) months unless an Event of Default has occurred and is continuing,
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver Deliver to BankCollateral Agent, with copies to each Holder, each of the financial statements, reports, or other items set forth below at the following times in form and substance reasonably satisfactory to Collateral Agent and the Holders: (i) as soon as available, but in any event within thirty (30) 45 days after the end of each calendar monthof the fiscal quarters during ICD’s fiscal year (or such longer period as the Holders may agree in their sole discretion), a company prepared consolidated (a) an unaudited Consolidated balance sheet, income statement, statement of cash flow and statement of cash flow, covering Borrower's operations during shareholders’ equity of the Note Parties and their Subsidiaries as at the end of such fiscal period, setting forth in a each case in comparative form reasonably acceptable the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to Bank interim financial statements generally, and certified by a Responsible Officerthe chief financial officer or vice president finance (or similar officer) of ICD as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments; (iib) a management discussion and analysis for the fiscal quarter then ended, in form and substance reasonably satisfactory to the Holders; as soon as available, but in any event within one hundred fifty (150) 90 days after the end of Borrower's ICD’s fiscal year, (c) an audited consolidated financial statements Consolidated balance sheet, income statement, statement of Borrower cash flow and statement of shareholders’ equity of the Note Parties and their Subsidiaries as at the end of such fiscal year, setting forth in each case m comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, consistently applied, together with and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is unqualified (including no going concern comment or qualificationbased) on of independent public accountants of recognized international standing reasonably acceptable to the Holders, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)reasonable basis for such opinion in the circumstances; (iiid) copies a Compliance Certificate from the chief financial officer or vice president-finance (or similar officer) of all statements, reports and notices sent or made available generally by Borrower ICD: (i) Covenant Compliance - setting forth the information from such financial statements that is required in order to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed establish whether the Note Parties were in compliance with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.23.05(A), and reasonably detailed calculations demonstrating compliance with the financial covenants of such Section, as of the date of the financial certificates accompanying such Compliance Certificate; and (ive) promptly upon receipt of notice thereofa management discussion and analysis for the fiscal year then ended, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs form and substance reasonably satisfactory to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or morethe Holders; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 within 30 days (or, in the case of the last fiscal month of any fiscal quarter, 45 days) after the end of each calendar of ICD’s fiscal month (or such longer period as the Holders may agree in their sole discretion), (f) an unaudited Consolidated balance sheet, income statement, statement of cash flow and statement of shareholders’ equity of the Note Parties and their Subsidiaries as at the end of any month, setting forth in each case in comparative form the figures for the corresponding month in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to interim financial statements generally, and certified by the chief financial officer or vice president finance (or similar officer) of ICD as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments; annually, within seven 90 days after the end of each fiscal year, (7g) days a detailed calculation of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, Excess Cash Flow for such fiscal year, together with written certification signed any necessary supporting documentation, certified by a Responsible Officer the chief financial officer or vice president-finance (or similar officer) of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided toICD, reviewed in form and approved by Bank prior substance satisfactory to the Closing DateHolders; if and when filed by ICD, (h) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (viii) such budgets, sales projections, operating plans all registration statements (other than Form S-8 or other financial information generally prepared any similar form) filed by Borrower in ICD with the ordinary course of business as Bank may reasonably request from time to timeSEC; and (viiij) copies of all financial statements, reports and proxy statements furnished to all shareholders of ICD, to the extent not otherwise required to be delivered under this Agreement; as soon as available, but in any event within thirty (30) 30 days before the start of each of the last day Note Parties’ fiscal years, (k) copies of each Note Parties’ Projections for the forthcoming fiscal quarteryear on a quarterly basis, a report signed certified by Borrowerthe chief financial officer or vice president-finance (or similar officer) of ICD as being such officer’s good faith estimate, in form reasonably acceptable to Banklight of facts and conditions known at the time, listing of the financial performance of the Note Parties and their Subsidiaries during the period covered thereby; promptly, but in any applications or registrations that Borrower event within 5 days after any Note Party has made or filed in respect knowledge of any Patentsevent or condition that constitutes a Default or an Event of Default, Copyrights (l) notice of such event or Trademarks condition and a statement of the status curative action that the Note Parties propose to take with respect thereto; promptly, but in any event within 5 days after any Note Party has knowledge thereof or the date of the furnishing of by any outstanding applications Note Party, (m) notice and copies of notices, certificates, statements or registrationsreports sent to or from the Note Parties in connection with the ABL Documents which are not otherwise required to be delivered pursuant to the terms of this Agreement or any amendment, as well as waiver, consent supplement and other modification relating to the ABL Documents or any material change in Borrower's Intellectual Property Collateral, including but not limited forbearance agreement relating to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.the ABL Documents; and
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to BankAgent: (i) as soon as available, but in any event within thirty no later than forty-five (3045) days after the end last day of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, in a form reasonably acceptable to Bank and the period certified by a Responsible OfficerOfficer and in a form acceptable to Agent; (ii) as soon as available, but in any event within no later than one hundred fifty (150) days after the end last day of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Agent in its reasonable discretion; (iii) within five (5) days of delivery, copies of all statements, financial statements and reports and notices sent or made available generally by Borrower to its Borrower’s security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Debt; (iv) promptly upon receipt within five (5) days of notice thereoffiling, copies of all periodic and 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 (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); (v) contemporaneously with the submission of such filings or the delivery of such reports, copies of (A) the monthly reports delivered to the Commodity Futures Trading Commission and (B) all monthly reports delivered to, and the annual examination conducted by, the National Futures Association; (vi) a prompt report of any legal actions pending or or, to the knowledge of the Borrower, threatened against Borrower or any Subsidiary of its Subsidiaries that could would reasonably be expected to result in damages or costs to Borrower or any Subsidiary of its Subsidiaries of One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or and other financial information generally prepared reasonably requested by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (GAIN Capital Holdings, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; provided, however, that after the occurrence of the IPO such statements shall be delivered within fifteen (ii15) days after the end of each calendar quarter; (b) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to timebusiness; and (viiif) within thirty twenty-five (3025) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateralintellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by each Borrower in connection with this Agreement. Within fifteen (15) days after the last day of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable and backlog/bookings reports. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver Deliver to BankAgent, with copies to each Lender: (ia) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar monthmonth during each of Borrower's fiscal years, a company prepared consolidated balance sheet, income statement statement, and statement of cash flow, flow covering Borrower's operations during such period, in a form reasonably acceptable to Bank ; and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty (150) 90 days after the end of each of Borrower's fiscal years, financial statements of Borrower for each such fiscal year, audited consolidated financial statements of Borrower by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such . Such audited financial statements shall include a balance sheet, profit and loss statement, and statement of cash flow and, if prepared, such accountants' letter to management. If Borrower is a PCAOBparent company of one or more Subsidiaries, or Affiliates, or is a Subsidiary or Affiliate of another company, then, in addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on a consolidating basis so as to present Borrower and each such related entity separately, and on a consolidated basis. Together with the above, Borrower also shall deliver to Agent, with copies to each Lender, Borrower's Form 10-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower with the SEC, if any, as soon as the same are filed, or any other information that CohnReznick LLP is acceptable); (iii) copies of all statements, reports and notices sent or made available generally provided by Borrower to its security holders shareholders, and any other report reasonably requested by the Lender Group relating to the financial condition of Borrower. Each month, together with the financial statements provided pursuant to Section 6.3(a), Borrower shall deliver to Agent, with copies to each Lender, a certificate signed by its chief financial officer to the effect that: (i) all financial statements delivered or caused to be delivered to any holders one or more members of Subordinated Debt the Lender Group hereunder have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the financial condition of Borrower, (ii) the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all reports material respects on Forms 8-K. 10- K and 10-Q as of the date of such certificate, as though made on and when filed as of such date (except to the extent that such representations and warranties relate solely to an earlier date), (iii) for each month that also is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating in reasonable detail compliance at the end of such period with the Securities applicable financial covenants contained in Section 7.20, and Exchange Commission, provided that prompt notice from Borrower to Bank (iv) on the date of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statementscertificate to Agent there does not exist any condition or event that constitutes a Potential Default or Event of Default (or, reportsin the case of clauses (i), notices and forms pursuant (ii), or (iii), to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report extent of any legal actions pending non-compliance, describing such non-compliance as to which he or threatened against she may have knowledge and what action Borrower has taken, is taking, or any Subsidiary that could result in damages or costs proposes to take with respect thereto). Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's shall have issued written instructions to its independent certified public accountants authorizing them to communicate with Agent and to release to Agent whatever financial information concerning Borrower that Agent may request. Borrower hereby irrevocably authorizes and directs all auditors, accountants, or other third parties to deliver to Agent, at Borrower's expense, copies of Borrower's financial statements, papers related thereto, and other accounting firm records of any nature in their possession, and to disclose to Agent any information they may have regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, business affairs and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankconditions.
Appears in 1 contract
Samples: Loan and Security Agreement (Aureal Semiconductor Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 within 30 days from the beginning of each calendar fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s annual financial and business projections and budget, presented in a month-by-month format, operating budget for such year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Regado Biosciences Inc)
Financial Statements, Reports, Certificates. (a) Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days 30 days, after the end of each calendar month, a company prepared consolidated balance sheet, sheets and income statement statements covering operations of Borrower and statement of cash flow, covering Borrower's operations the other Credit Parties during such period, in a form reasonably acceptable to Bank and certified by a Responsible OfficerOfficer of Borrower; (ii) as soon as available, but in any event within one hundred fifty 45 days, after the end of each of the first three calendar quarters, consolidated balance sheets and income statements covering the operations of Borrower and the other Credit Parties during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer of Borrower; (150iii) days as soon as available, but in any event within 90 days, after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower and the other Credit Parties prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualificationotherwise consented to in writing by Bank) on such financial statements of a PCAOB-registered independent certified public one of the “Big 4” accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)firms; (iiiiv) as soon as available, copies of all statements, reports and notices sent or made available generally by Borrower Holdings to its security holders or to any holders of Subordinated Debt and all reports of Holdings on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions action pending or threatened against Borrower or any Subsidiary of the other Credit Parties that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars (the other Credit Parties of $100,000.00) 500,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; and (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or and other financial information generally prepared by Borrower or any of the other Credit Parties in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (NightHawk Radiology Holdings Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income income, and cash flow statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer, together with a Compliance Certificate signed by a Responsible Officer of Borrower in substantially the form of Exhibit C hereto; (iib) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) copies (which may be in electronic form) of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt after any officer of notice any Credit Party obtains knowledge thereof, a report of any legal actions pending or threatened in writing against Borrower or any Subsidiary that could would reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars (to the extent the amount in controversy exceeds $100,000.00) 100,000 individually or more$150,000 in the aggregate; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vie) as soon as available, but in any event not later than January 31 within thirty (30) days after the start of each calendar Borrower’s fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented an operating budget in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof form reasonably acceptable to Bank and approved by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiig) within thirty ten (3010) days Business Days after the reasonable request of the last day of each fiscal quarterBank, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding active or pending material United States Patent, Copyright or Trademark applications or registrations; and (h) within thirty (30) days after the last day of each month, as well as any material change in a deferred revenue schedule along with aged listings of accounts receivable and accounts payable of Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthquarter, a Borrower's report on Form 10-Q, including Borrower's company prepared consolidated balance sheetfinancial statements, income statement and statement of cash flow, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)and Borrower's report on Form 10- K; (iiic) copies as soon as available, but in any event within twenty-five (25) days after the end of all statementseach quarter, reports an aged listing in form and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower substance satisfactory to Bank of the filing of such statements, reports, notices Borrower's accounts payable and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2accounts receivable; (ivd) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could is reasonably likely to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Million Dollars ($100,000.001,000,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within . Within thirty (30) days after the last day of each quarter, Borrower shall deliver to Bank a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto. --------- Within fifteen (15) days of the last day of each fiscal quartermonth in which outstanding Credit Extensions exceed $7,500,000, Borrower shall deliver to Bank a report signed by BorrowerBorrowing Base Certificate in substantially the form of Exhibit D attached hereto, --------- together with an aged listing in form reasonably acceptable and substance satisfactory to Bank, listing any applications or registrations that Borrower has made or filed in respect Bank of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankaccounts payable and accounts receivable.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty five (1505) days after of the end of Borrower's fiscal yearSecurities and Exchange Commission (the "SEC") standard filing date for its Form 10-K, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, as soon as available, but in any event within five (5) days of the SEC standard filing date, all reports on Forms 810-K. 10- K and 10-10- Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to timebusiness; and (viiif) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateralintellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement. Within twenty (20) days after the last day of each month, Borrower shall deliver to Bank an inventory cost report, together with aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank with the monthly financial statements and its Form 10-Q a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty ninety (15090) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) within fifteen (15) days upon becoming available, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (ve) promptly upon receiptprompt notice of any material change in the composition of the Intellectual Property Collateral, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as availableincluding, but not limited to, any subsequent ownership right of the Borrower in or to any Copyright, Patent or Trademark not specified in any intellectual property security agreement between Borrower and Bank or knowledge of an event not later than January 31 that materially adversely effects the value of each calendar year, the Intellectual Property Collateral; and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and . Within twenty (viii) within thirty (3020) days of after the last day of each fiscal quartermonth, Borrower shall deliver to Bank a report Borrowing Base Certificate signed by Borrowera Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable; provided, Borrower shall not be required to deliver the aged listings of accounts receivable and accounts payable for any month in which no Obligations are outstanding under this Agreement. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form reasonably acceptable of Exhibit D hereto. Bank shall have a right from time to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in time hereafter to audit Borrower's Intellectual Property CollateralAccounts at Borrower's expense, including but not limited to any subsequent ownership right provided that such audits will be conducted no more often than every six (6) months unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthfiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement, cash flow statement and statement of cash flow, recurring revenue report covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission within five (5) days of filing with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000.00) or moremore or any other matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 sixty (60) days after the end of each calendar fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budgetbudget (on a quarterly basis, presented in a month-by-month formatincluding income statements, balance sheets and cash flow statements, by quarter) for such the immediately following year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's board ’s Board of directors; provided that Directors, and contemporaneously with delivery or approval by Borrower's board approved 2018-2019 plan shall have been provided to’s Board of Directors, reviewed and approved by Bank prior to the Closing Dateany updates or changes thereto; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and , (viii) within thirty promptly following any request therefor, information and documentation reasonably requested by Bank for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, (30ix) days prompt notice of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications creation or registrations that Borrower has made or filed in respect acquisition of any PatentsSubsidiary, Copyrights and (x) within five (5) Business Days after the same are sent or Trademarks received, copies of all correspondence, reports, documents and other filings with any Governmental Authority regarding compliance with or maintenance of governmental approvals or requirements of law or that could reasonably be expected to have a material effect on any of the status of any outstanding applications governmental approvals or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right otherwise on the operations of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankof its Subsidiaries.
Appears in 1 contract
Samples: Loan and Security Agreement (Apex Technology Acquisition Corp)
Financial Statements, Reports, Certificates. Borrower shall deliver Deliver to BankAgent, with copies to each Lender: (ia) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar monthmonth during each of Borrower's fiscal years, a company prepared consolidated balance sheet, income statement statement, and statement of cash flow, flow covering Borrower's operations during such period, on a consolidated and consolidating basis (PROVIDED, that in a form reasonably acceptable the case of the monthly financial statements for the last month of each of Borrower's fiscal quarters, Borrower may satisfy the requirements of this clause (a) by its delivery of drafts of such financial statements within the aforesaid 30-day period, which shall be superseded by the quarterly financial statements included in Borrower's Form 10-Q Quarterly Reports provided pursuant to Bank the next paragraph of this SECTION 6.3 or the annual financial statements provided pursuant to clause (b) of this paragraph, as applicable); and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty (150) 95 days after the end of each of Borrower's fiscal years, financial statements of Borrower, on a consolidated and consolidating basis, for each such fiscal year, audited (in the case of the consolidated financial statements only) by independent certified public accountants reasonably acceptable to Agent and certified (in the case of Borrower the consolidated financial statements only), without any qualifications, by such accountants to have been prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment a certificate of such accountants addressed to Agent stating that such accountants do not have knowledge of the existence of any Default or qualification) on such Event of Default. Such audited financial statements shall include a balance sheet, profit and loss statement, and statement of a PCAOBcash flow and, if prepared, such accountants' letter to management. Together with the above, Borrower also shall deliver to Agent, with copies to each Lender, Borrower's Form 10-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower with the SEC, if any, within 5 days after the same are filed, or any other information that CohnReznick LLP is acceptable); (iii) copies of all statements, reports and notices sent or made available generally provided by Borrower to its security holders or shareholders, and any other report reasonably requested by the Lender Group relating to any holders the financial condition of Subordinated Debt and all reports on Forms 8-K. 10- K and Borrower. Each month (other than (1) the last month of each of Borrower's first three fiscal quarters, in which case the certificate shall be provided together with the Form 10-Q as Quarterly Reports provided pursuant to the immediately preceding paragraph of this SECTION 6.3, and when filed (2) the last month of Borrower's fourth fiscal quarter, in which case the certificate shall be provided with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank delivery of the filing annual audited financial statements), together with the financial statements provided pursuant to clause (a) of this SECTION 6.3, Borrower shall deliver to Agent, with copies to each Lender, a certificate signed by its chief financial officer to the effect that: (i) all financial statements delivered or caused to be delivered to any one or more members of the Lender Group hereunder have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the financial condition of Borrower, on a consolidated and consolidating basis, (ii) the representations and warranties of each Company contained in the Loan Documents are true and correct in all material respects on and as of the date of such statementscertificate, reportsas though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), notices (iii) for each month that also is the date on which a financial covenant in SECTION 7.20 is to be tested, a Compliance Certificate demonstrating in reasonable detail compliance at the end of such period with the applicable financial covenants contained in SECTION 7.20, and forms (iv) on XXXXX shall be considered sufficient the date of delivery of such statementscertificate to Agent there does not exist any condition or event that constitutes a Default or Event of Default (or, reportsin the case of clauses (i), notices and forms pursuant (ii), or (iii), to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report extent of any legal actions pending non-compliance, describing such non-compliance as to which he or threatened against she may have knowledge and what action Borrower has taken, is taking, or any Subsidiary that could result in damages or costs proposes to take with respect thereto). Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's shall have issued written instructions to its independent certified public accounting firm regarding accountants authorizing them to communicate with Agent and to release to Agent whatever financial information concerning each Company that Agent may request. Borrower hereby irrevocably authorizes and directs all auditors, accountants, or other third parties to deliver to Agent, at Borrower's management control systems; (vi) as soon as availableexpense, but in any event not later than January 31 copies of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial statements, papers related thereto, and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect accounting records of any Patentsnature in their possession, Copyrights or Trademarks and the status of to disclose to Agent any outstanding applications or registrations, as well as any material change in Borrowerinformation they may have regarding each Company's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankbusiness affairs and financial conditions.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated (and to the extent prepared by Borrower, consolidating) balance sheet, income statement statement, and statement of cash flow, flows covering Borrower's ’s operations during such period, together with an aging of accounts receivable and payable, each in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) 180 days after the end of Borrower's ’s fiscal year, audited consolidated (or such other level as is required by the Investment Agreement) financial statements of Borrower Parent, consolidating Borrower’s financial information, prepared in accordance with GAAP, consistently applied, together with an opinion which is either unqualified (including no or qualified only for going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) annual budget approved by Borrower’s Board of Directors as soon as available but not later than January 15th of each year during the term of this Agreement; (iv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed by Parent with the Securities and Exchange CommissionCommission (the “SEC”), provided provided, however, that prompt notice from Borrower any report, including Parent’s reports on Forms 10-K and 10-Q, required to be filed by Parent with the SEC pursuant to Sections 13 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be deemed to have been delivered to Bank of so long as such reports are available for viewing either at Parent’s website or at the filing of such statementsSEC’s website, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2xxx.xxx.xxx; (ivv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 100,000 or more; (vvi) promptly upon receipt, each management letter prepared by Borrower's Parent’s independent certified public accounting firm regarding Borrower's Parent’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) 30 days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty on or before the Securities and Exchange Commission (30the "SEC") days after the end of each calendar monthdeadline for filing its Form 10-Q, a company prepared consolidated balance sheet, income income, and cash flow statement and statement of cash flow, covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty (150) days after on or before the end of Borrower's fiscal yearSEC deadline for filing its Form 10-K, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Debt; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and . Within twenty (viii) within thirty (3020) days of after the last day of each fiscal quartermonth, Borrower shall deliver to Bank a report Borrowing Base Certificate signed by Borrowera Responsible Officer in substantially the form of Exhibit C hereto, in form reasonably acceptable together with aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank, listing any applications or registrations that Borrower has made or filed within twenty (20) days after the last day of each month, a Compliance Certificate signed by a Responsible Officer in respect substantially the form of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Exhibit D hereto. Bank shall have a right from time to time hereafter to audit Borrower's Intellectual Property CollateralAccounts and appraise Collateral at Borrower's expense, including but not limited provided that such audits will be conducted no more often than every twelve (12) months unless an Event of Default has occurred and is continuing. Borrower shall file its Form 10-Q and Form 10-K with the Securities and Exchange Commission (the "SEC") in the timeframe required by the SEC. If Borrower is no longer required by deliver such information to any subsequent ownership right of Borrower the SEC, it shall provide such information to Bank in or to any Trademark, Patent or Copyright not previously identified to Banka similar timeframe.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower Borrowers shall deliver the following to BankAdministrative Agent: (ia) as soon as available, but in any event within thirty (30) days after the last day of each fiscal quarter, an aged listings of accounts receivable and accounts payable by invoice date and a deferred revenue report; (b) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement, and cash flow statement and statement of cash flow, covering Borrower's Borrowers’ operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank Administrative Agent and certified by a Responsible Officer, together with a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto; (iic) as soon as available, but in any event within one hundred fifty eighty (150180) days after the end of Borrower's Borrowers’ fiscal year, audited consolidated financial statements of Borrower Borrowers prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank Administrative Agent; (Bank acknowledges that CohnReznick LLP is acceptabled) as soon as available, but in any event no later than the earlier to occur of thirty (30) days following the beginning of each fiscal year or the date of approval by such Borrowers’ board of directors, an annual operating budget and financial projections (including income statements, balance sheets and cash flow statements) for such fiscal year, presented in a monthly format, approved by Borrowers’ board of directors, and in a form and substance acceptable to Administrative Agent in its reasonable business judgment (each, a “Financial Plan”); (iiie) copies of all statements, reports and notices sent or made available generally by a Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of Commission within five (5) days after such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2filing; (ivf) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against a Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to a Borrower or any Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viig) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank Administrative Agent may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Tabula Rasa HealthCare, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) 95 days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Debt; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm and delivered to Borrower’s Board of Directors regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 within 30 days after the end of each calendar Borrower’s fiscal year, an annual financial forecast, which shall include quarterly balance sheets and within seven income statements, (7in form and substance acceptable to Bank) days of any board-approved modifications thereto, Borrower's financial for the immediately subsequent fiscal year; and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Biolase Technology Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthquarter, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iib) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivc) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viid) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and . Within twenty-five (viii) within thirty (3025) days of after the last day of each fiscal month with respect to which either (i) Obligations under the Committed Revolving Line are outstanding, or (ii) Advances were made or Letters of Credit were issued, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of EXHIBIT C hereto, together with aged listings of accounts receivable (by invoice date). Within forty-five (45) days after the last day of each quarter, Borrower shall deliver to Bank with the quarterly financial statements a report Compliance Certificate signed by Borrower, a Responsible Officer in substantially the form reasonably acceptable of EXHIBIT D hereto. Bank shall have a right from time to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in time hereafter to audit Borrower's Intellectual Property CollateralAccounts at Borrower's expense (subject to Section 2.5(c)), including but not limited to any subsequent ownership right provided that such audits will be conducted no more often than every twelve (12) months unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing."
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) 50 days after the end of each calendar monthfiscal quarter, a company company-prepared consolidated and consolidating balance sheet, sheets and income statement and statement of cash flow, statements covering Borrower's consolidated and consolidating operations during such quarterly fiscal period, in a form reasonably acceptable to Bank that fairly presents, in all material respects, the financial condition of Borrower as of the end of such quarterly fiscal period, and certified by a one of the Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty (150) 100 days after the end of Borrower's fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently appliedapplied (except as otherwise disclosed in such financial statements), together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)of recognized national standing; (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K (within 100 days of fiscal year end) and 10-Q as and when (within 50 days of fiscal quarter end) filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of written notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs would reasonably be expected to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or morehave a Material Adverse Effect; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiif) within thirty (30) 30 days of the last day reasonable written request from Bank (which request may not be made more than twice per calendar year unless an Event of each fiscal quarterDefault has occurred and is continuing), a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Asyst Technologies Inc /Ca/)
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) as soon as available, but in any event within no later than thirty five (3035) days after the end last day of each calendar monthmonth(commencing with the month ending December 31, 2011), a company prepared consolidated balance sheet, income statement statement, and statement of cash flow, covering Borrower's flowscovering the consolidated operations of Borrower and its consolidated Subsidiaries during such period, in a form reasonably acceptable to Bank and the period certified by a Responsible OfficerOfficer and in a form acceptable to Bank; (ii) as soon as available, but in any event within no later than one hundred fifty eighty (150180) days after the end last day of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no other than a “going concern comment or concern” qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)in its reasonable discretion; (iii) within five (5) days of delivery, copies of all statements, reports and notices sent or made available generally by Borrower to its Borrower’s security holders or to any holders of Subordinated Debt and Debt, (iv) 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 Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of Commission or a link thereto on Borrower’s or another website on the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Internet; (ivv) promptly upon receipt of notice thereof, a prompt report of any legal actions pending or threatened in writing against Borrower or any Subsidiary of its Subsidiaries that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of its Subsidiaries of One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any prompt notice of an event not later than January 31 that materially and adversely affects the value of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided the intellectual property that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior is material to the Closing Datebusiness of Borrower; (vii) such budgetsannual financial projections commensurate with those provided to the Borrower’s venture capital investors, sales projections, operating plans or other financial information generally prepared approved by Borrower in the Borrower’s board of directors promptly after approval of the same by Borrower’s board of directors but no later than February 15 of each fiscal year; (viii) prompt notice of Borrower’s incurring any indebtedness outside the ordinary course of business as Bank may reasonably request from time to timebusiness; and (viiiix) within thirty (30) days of the last day of each fiscal quarter, a report signed other financial information reasonably requested by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Luca Technologies Inc)
Financial Statements, Reports, Certificates. Borrower Borrowers shall deliver the following to Bank: (ia) within thirty (30) days after the last day of each month, aged listings of accounts receivable and accounts payable; (b) within thirty (30) days after the last day of each month during which Eligible Accounts are included in the Asset Coverage Ratio, with a Borrowing Base Certificate signed by a Responsible Officer in substantially the form provided by Bank; (c) as soon as available, but in any event within thirty (30) days after the last day of each month, copies of all bank statements with respect to any depository, operating or investment accounts not maintained at Bank and a statement of Borrowers’ cash position; (d) as soon as available, but in any event within forty five (45) days after the end of each calendar monthquarter, a company prepared consolidated and consolidating balance sheet, income statement income, and statement of cash flow, flow statements covering Borrower's Borrowers’ consolidated and consolidating operations during such period, in a form reasonably prepared by an independent certified public accounting firm acceptable to Bank and certified in accordance with GAAP, consistently applied, in a form acceptable to Bank along with a Compliance Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit B hereto; (iie) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's Borrowers’ fiscal year, audited consolidated financial statements of Borrower Borrowers prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiif) copies of all statements, reports and notices sent or made available generally by a Borrower to its security holders or to any holders of Subordinated Debt and within five days of filing, copies of all reports on Forms 810-K. 10- K and 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivg) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against a Borrower or any Subsidiary that could result in damages or costs to such Borrower or any Subsidiary of One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more, or any commercial tort claim (as defined in the Code) acquired by any Borrower; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vih) as soon as available, but in any event not no later than January 31 thirty (30) days prior to the beginning of each calendar Borrowers’ next fiscal year, annual operating projections (including income statements, balance sheets and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, cash flow statements presented in a month-by-month monthly format, ) for such the upcoming fiscal year, with written certification signed approved by a Responsible Officer of approval thereof by Borrower's Borrowers’ board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by in form and substance reasonably satisfactory to Bank prior to the Closing Date; (viieach, a “Financial Plan”), and (i) such budgets, sales projections, operating plans or plans, other financial information generally prepared by Borrower in including information related to the ordinary course verification of business Borrowers’ Accounts as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (True Drinks Holdings, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to BankAgent: (i) (A) at all times prior to a Cash Trigger Event, as soon as available, but in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year, a company prepared consolidated balance sheet and income statement covering the Loan Parties’ operations during such period, in a form reasonably acceptable to Agent and certified by a Responsible Officer, and (B) at all times after a Cash Trigger Event, as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's the Loan Parties’ operations during such period, in a form reasonably acceptable to Bank Agent and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty five (1505) days after Borrower submits its Form 10-K with the end of Borrower's fiscal yearSecurities and Exchange Commission, audited consolidated financial statements of Borrower and its consolidated Subsidiaries prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) on such financial statements of and audited by a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)accountant; (iii) copies of all statements, reports and notices sent or made available generally by Borrower any Loan Party to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed by any Loan Party or any Subsidiary with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereofthereof by any Loan Party, a report of any legal actions pending or threatened in writing against Borrower any Loan Party or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower any Loan Party or any Subsidiary of One Hundred Thousand Five Million and 00/100 Dollars ($100,000.005,000,000) or more; (v) promptly upon receiptreceipt by any Loan Party, each management letter prepared by Borrower's such Loan Party’s independent certified public accounting firm regarding Borrower's such Loan Party’s management control systems; (vi) as soon as available, but in any event not later than January 31 within ninety (90) days after the end of each calendar Borrower’s fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such the upcoming year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank Agent may reasonably request from time to time; . (a) Not later than at all times prior to a Cash Trigger Event, as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter, and (viii) at all time after a Cash Trigger Event, as soon as available, but in any event within thirty (30) days after the end of each calendar month, the Borrower shall deliver to Agent, in a form reasonably acceptable to Agent, (i) reconciliations of all of the Loan Parties’ Accounts as shown on the report for the immediately preceding month to Loan Parties’ accounts receivable agings, to Loan Parties’ general ledger and to Loan Parties’ most recent financial statements, (ii) a detailed aged trial balance of all Accounts as of the end of the preceding fiscal quarter or calendar month, as applicable, specifying each Account’s debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and upon the request of Agent, including such proof of delivery, copies of invoices above $10,000 and invoice registers, copies of related 19 documents, repayment histories, status reports and other information as Agent may reasonably request, (iii) accounts payable agings, and (iv) accounts receivable agings. (b) Within thirty (30) days after the end of each month, Borrower shall deliver to Agent a Compliance Certificate certified as of the last day of each fiscal quarter, a report the applicable month and signed by Borrowera Responsible Officer in substantially the form of Exhibit D hereto. (c) Promptly upon, but in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect event within three (3) Business Days of any PatentsResponsible Officer of Borrower becoming aware of the occurrence or existence of an Event of Default hereunder, Copyrights or Trademarks Borrower shall deliver to Agent a written statement of a Responsible Officer setting forth details of the Event of Default, and the status action which the Loan Parties have taken or proposes to take with respect thereto. Borrower may deliver to Agent on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Agent shall be entitled to rely on the information contained in the electronic files, provided that Agent in good faith believes that the files were delivered by a Responsible Officer. If Borrower delivers this information electronically, it shall also, upon the request of any outstanding applications Agent, deliver to Agent by U.S. Mail, reputable overnight courier service or registrationshand delivery, as well as any material change in Borrower's Intellectual Property Collateralwithin five (5) Business Days of submission of the unsigned electronic copy, including but not limited to any subsequent ownership right each submission bearing the physical signature of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.the Responsible Officer. 6.3
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty forty-five (15045) days after the end of each Fiscal Quarter, a company prepared consolidated statement of cash flows covering Borrower's fiscal year’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iii) as soon as available, but in any event within one hundred eighty (180) days after the end of each Fiscal Year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiiiv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission within five (5) days of filing with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions actions, suits, litigation or proceedings, at law or in equity, pending by or threatened against Borrower or any Subsidiary that before any court, administrative agency, or arbitrator in which a likely adverse decision could result in damages or costs reasonably be expected to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systemshave a Material Adverse Effect; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven thirty (730) days of any board-approved modifications theretothe start of each Fiscal Year, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarterFiscal Quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including including, but not limited to to, any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Maxwell Technologies Inc)
Financial Statements, Reports, Certificates. Borrower Borrowers shall deliver the following to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement and statement of cash flow, flows covering Borrower's Borrowers’ operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's Parent’s fiscal year, audited consolidated and consolidating financial statements of Borrower Parent prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by a Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against a Borrower or any Subsidiary that could result in damages or costs to a Borrower or any Subsidiary of One Two Hundred Fifty Thousand Dollars ($100,000.00250,000) or more; (v) promptly upon receipt, each management letter prepared by a Borrower's ’s independent certified public accounting firm regarding such Borrower's ’s management control systems; (vi) as soon as available, but in any event not no later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided tomonthly financial projections of each Borrower acceptable to Bank including balance sheet, reviewed income statement and approved by Bank prior to the Closing Datecash flow statement; (vii) such other budgets, sales projections, operating plans or other financial information generally prepared by a Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within upon written request of Bank, no later than thirty (30) days of after the last day end of each fiscal calendar quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patentspatents, Copyrights copyrights or Trademarks trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank’s intellectual property.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall agrees to deliver to Bank: Lender or caused to be delivered to Lender (iprovided that, the reporting requirements of this Section 6.9 shall be satisfied in the event Parent makes timely filings with the SEC the required filings of Forms 10-Q or 10-K (as applicable)), (a) as soon as available, but in any event within forty-five (45) days after the end of each quarter during each of Parent’s fiscal years, a company prepared balance sheet, income statement and cash flow statement, covering Parent’s and its Subsidiaries’ operations, on a consolidated basis, during such period, (b) as soon as available, but in any event, within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheetmonthly Borrowing Base Certificate, income statement and statement of cash flow, covering Borrower's operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iic) as soon as available, but in any event within one hundred fifty (150) days after no later than April 30th of each year, financial statements of Parent and its Subsidiaries, on a consolidated basis, for the end of Borrower's prior fiscal year, audited consolidated financial statements of Borrower by a certified public accountant reasonably acceptable to Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP, consistently applied(d) concurrently with the delivery of the financial statements referred to in Sections 6.9(a) and (c), together with a Compliance Certificate executed by the chief financial officer or treasurer of Parent (i) stating that to the best of such Person's knowledge, no Event of Default has occurred and is continuing, or if an opinion Event of Default has occurred and is continuing, a statement as to the nature thereof and the action which is unqualified proposed to be taken with respect thereto, and (including no going concern comment or qualificationii) on such financial statements of a PCAOB-registered independent certified public accounting firm reasonably acceptable to Bank showing in reasonable detail the calculations demonstrating compliance with Sections 6.3, 6.4, 6.5, and 6.6, as applicable, (Bank acknowledges that CohnReznick LLP is acceptable); (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vie) as soon as available, but in any event not no later than January 31 the earlier of each calendar year(i) 30 days after the filing thereof or (ii) 30 days after the filing deadline established by the Internal Revenue Service (the “IRS”), and within seven including any extensions (7) days provided that Parent shall deliver to Lender written evidence of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank extension prior to the Closing Date; regular filing deadline established by the IRS), Parent’s tax return for the preceding fiscal year of Parent, and (viif) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business documents and reports as Bank Lender may reasonably request from time require. Parent’s audited financial statements shall include a balance sheet, profit and loss statement, cash flow statement, and, if prepared, an accountants' letter to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.management
Appears in 1 contract
Samples: Loan and Security Agreement (Angel Oak Mortgage, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver (a) Deliver to Bank: (i) as soon as available, but in any event within no later than thirty (30) days after the end last day of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during for such period, in a form reasonably acceptable to Bank and month certified by a Responsible OfficerOfficer and in a form acceptable to Bank; (ii) as soon as available, but in any event within no later than one hundred fifty eighty (150180) days after the end last day of Borrower's ’s fiscal year, either (a) audited consolidated financial statements of Borrower prepared in accordance with under GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such the financial statements of a PCAOB-registered from an independent certified public accounting firm reasonably acceptable to Bank in its reasonable discretion, if such audited financial statements are prepared at the request of Borrower’s board of directors, or (Bank acknowledges that CohnReznick LLP is acceptable)b) company prepared financial statements certified by a Responsible Officer in a form acceptable to Bank; (iii) within five (5) days of delivery, copies of all statements, reports and notices sent or made available generally by Borrower to its Borrower’s security holders or to any holders of Subordinated Debt and (iv) 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 Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of SEC or a link thereto on Borrower’s or another website on the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Internet; (iv) promptly upon receipt of notice thereof, a prompt report of any legal actions pending or threatened against Borrower or any Subsidiary of its Subsidiaries that could result in damages or costs to Borrower or any Subsidiary of One Hundred its Subsidiaries of Fifty Thousand Dollars ($100,000.0050,000) or more; (v) promptly upon receipt, each management letter prepared copies of all annual financial projections approved by Borrower's independent certified public accounting firm regarding ’s board of directors, commensurate in form, substance and timing with those provided by Borrower to its venture capital and other investors and delivered to Bank simultaneously with Borrower's management control systems’s venture capital and other investors; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or and other financial information generally prepared reasonably requested by Borrower Bank; (vii) copies of all Bank Secrecy Act/Anti-Money Laundering (BSA/AML) internal and independent testing reports as requested by Bank in the ordinary course of business as Bank may reasonably request from time to timeits reasonable discretion; and (viii) within thirty (30) days of the last day of each fiscal quarterpromptly, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect copies of any Patents, Copyrights or Trademarks and written communications with the SEC which relate to the status of any outstanding applications or registrations, Borrower Member Loans as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank“securities” under federal law.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Borrower shall deliver the following to Bank, in each case at both the San Xxxx and the Boston addresses referenced in Section 10: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar quarter (or, if there are any outstanding Credit Extensions under this Agreement, within thirty (30) days after the end of each month, ) a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible OfficerOfficer and a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges provided that CohnReznick LLP is acceptablesuch financial statements for the fiscal year ended December 31, 2004 shall be delivered on or before May 31, 2006); (iii) to the extent Borrower is a public company, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a 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 One Five Hundred Thousand Dollars ($100,000.00500,000) or more; (v) promptly upon receipt, each management letter prepared on or before the earlier of (A) the date such projections are approved by Borrower's independent certified public accounting firm regarding ’s Board of Directors and (B) March 1 of each fiscal year, financial projections for Borrower for the forthcoming fiscal year, as approved by Borrower's management control systems’s Board of Directors; and (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to BankLender: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s and its consolidated Subsidiaries’ operations during such period, prepared in accordance with GAAP, and in a form reasonably acceptable to Bank and certified by a Responsible OfficerLender; (ii) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower and its consolidated Subsidiaries prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Lender on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Lender; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its their security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against the Borrower or any Subsidiary of its Subsidiaries that could result in damages or costs to the Borrower or any Subsidiary of its Subsidiaries of One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by the Borrower's ’s independent certified public accounting firm regarding the Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 15 of each calendar year, and within seven (7) days of any board-approved modifications thereto, the Borrower's ’s financial and business projections and budget, presented in a month-by-month format, budget for such calendar year, with written certification signed by a Responsible Officer evidence of approval thereof by the Borrower's board ’s Board of directors; provided that Borrower's board Directors (copies of any Board of Directors approved 2018-2019 plan revisions to projections shall have been provided to, reviewed and approved by Bank prior be delivered to the Closing DateLender within thirty (30) days of such approval); (vii) on or before the 7th Business Day of each calendar month, a Borrowing Base report as of the end of the immediately preceding month, and (viii) such other budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank Lender may reasonably request from time to time; and (viii) within thirty (30) days . Immediately upon becoming aware of the last day occurrence or existence of each fiscal quarteran Event of Default hereunder, a report signed by Borrowerwritten statement of the Borrower setting forth details of the Event of Default, in form reasonably acceptable to Bank, listing any applications or registrations that and the action which the Borrower has made taken or filed in proposes to take with respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankthereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement statement, and statement of cash flow, flows covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) 180 days after the end of Borrower's ’s fiscal year, audited (or such other level as is required by the Investment Agreement) consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no either unqualified, qualified only for going concern comment based on Borrower’s projected need for additional funding to continue operations, or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) an annual budget approved by Borrower’s Board of Directors as soon as available but not later than 45 days after the beginning of each fiscal year of Borrower during the term of this Agreement; (iv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (vvi) promptly upon receipt, each management letter letter, if any, prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bank.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty five (305) days after of filing same quarterly with the end of each calendar monthSecurities and Exchange Commission (the "SEC"), a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iib) as soon as available, but in any event within one hundred fifty five (1505) days after of filing same annually with the end of Borrower's fiscal yearSEC, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) within five (5) days of filing, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (ve) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; within thirty (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (730) days of the approval thereof, any board-approved modifications budgets or forecasts or revisions thereto, Borrower's financial ; and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and . Within fifteen (viii) within thirty (3015) days of after the last day of each fiscal quarterquarter during which Advances are requested or outstanding (excluding Letters of Credit), and in connection with any Advance (excluding Letters of Credit) (unless a Borrowing Base Certificate has been provided within the last thirty (30) days), Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with an aged listing of accounts receivable (by invoice date). Borrower shall deliver to Bank with the quarterly financial statements, within five (5) days of filing same quarterly with the SEC, a report Compliance Certificate signed by Borrower, a Responsible Officer in substantially the form reasonably acceptable of Exhibit D hereto. Bank shall have a right from time to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in time hereafter to audit Borrower's Intellectual Property CollateralAccounts at Borrower's expense, including but not limited to any subsequent ownership right provided that such audits will be conducted no more often than every twelve (12) months unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing."
Appears in 1 contract
Samples: Second Loan Modification Agreement (Natural Microsystems Corp)
Financial Statements, Reports, Certificates. Borrower ------------------------------------------- shall deliver to Bank: (ia) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthquarter, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iib) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivc) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viid) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; . Within forty-five (45) days after the last day of each quarter and within one hundred twenty (viii120) within days after the end of Borrower's fiscal year, Borrower shall deliver to Bank, with the financial statements required herein, a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto. --------- Within thirty (30) days of after the last day end of each fiscal quartermonth, Borrower shall deliver to Bank a report signed by Borrower, written certification in form reasonably acceptable and substance satisfactory to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patentssigned by a Responsible Officer, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in confirming Borrower's Intellectual Property Collateralcompliance with the minimum cash requirement set forth in Section 6.9 herein. Bank shall have a right from time to time hereafter to audit Borrower's Accounts at Borrower's expense, including but not limited to any subsequent ownership right provided that such audits will be conducted no more often than every twelve (12) months unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing."
Appears in 1 contract
Samples: Third Loan Modification Agreement (Centra Software Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to BankLender: (ia) as soon as available, but in any event within thirty twenty five (3025) days after the last day of each month, a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto including a comparison of the actual consolidated cash balance at the end of the previous month to the minimum required cash balance; (b) as soon as available, but in any event within forty five (45) days after the end of each calendar monthfiscal quarter, a company prepared consolidated balance sheet, income statement income, and statement of cash flow, flow statements covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, and prepared or reviewed by an independent certified public accounting firm reasonably acceptable to Lender, in a form reasonably acceptable to Bank and certified Lender, along with a Compliance Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit D hereto; (iie) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Lender; (iiid) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ive) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or plans, other financial information generally prepared by Borrower in including information related to the ordinary course verification of business Borrower’s Accounts as Bank Lender may reasonably request from time to time; provided, however, that Borrower shall not be required to provide the financial statements referred to in the preceding subsections (b) and (viiic) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable for any period with respect to Bank, listing any applications which it has timely filed its reports on Form 10-Q or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations10-K, as well as any material change applicable, and provided copies of such reports in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankaccordance with the preceding subsection (d).
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) days after the end of each calendar monthmonth and within forty five (45) days after the end of each calendar quarter, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's ’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal yearyear (beginning with Borrower’s fiscal year ending December 31, 2012) , audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iii) if applicable, copies of all material statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's ’s independent certified public accounting firm regarding Borrower's ’s management control systems; (vi) as soon as available, but in any event not later than January 31 within thirty (30) days after the beginning of each calendar Borrower’s fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's ’s financial and business projections and budget, presented in a month-by-month format, operating budget for such that year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's ’s board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) 25 days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such periodperiod and year to date, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as availablewithin five (5) days after their being filed with the SEC, but in any event within one hundred fifty (150) 95 days after the end of Borrower's fiscal year, Borrower's Form 10-K which shall include audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank Bank; (Bank acknowledges that CohnReznick LLP is acceptablec) within five (5) days after their being filed with the SEC, but in any event within fifty (50) days after the end of each fiscal quarter of Borrower, Borrower's Form 10(Q); (iiid) within fifteen (15) days after their being filed with the SEC or any other regulatory agency, a copy of all documents filed with the SEC or such other regulatory agency; (e) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2Debt; (ivf) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) 50,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viig) such budgets, sales projections, operating plans or and other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiih) within thirty (30) 30 days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Serviceware Technologies Inc/ Pa)
Financial Statements, Reports, Certificates. Borrower shall deliver to ------------------------------------------- Bank: (ia) as soon as available, but in any event within thirty (30) 30 days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iib) as soon as available, but in any event within one hundred fifty (150) 90 days after the end of Borrower's fiscal year (or by May 30, 1998, in the case of the 1997 fiscal year), audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no except as to any going concern comment or qualification) opinion on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)of recognized national standing; (iiic) within 5 days of filing, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000.00) 50,000 or more; (ve) promptly upon receiptprompt notice of any material change in the composition of the Intellectual Property Collateral, each management letter prepared by including, but not limited to, any subsequent ownership right of the Borrower in or to any Copyright, Patent or Trademark material to Borrower's independent certified public accounting firm regarding Borroweror any Subsidiary's management control systems; (vi) as soon as available, but business and not specified in any intellectual property security agreement between Borrower and Bank or any event not later than January 31 of each calendar year, and within seven (7) days that could reasonably be expected to materially adversely affects the value of any board-approved modifications thereto, Borrower's financial material part of the Intellectual Property Collateral; and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) . Within 30 days of after the last day of each fiscal quartermonth, Borrower shall deliver to Bank with the monthly financial statements a report Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto. --------- Bank shall have a right from time to time hereafter to audit Borrower's Accounts at Borrower's expense, provided that such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing. to Borrower's business, (ii) use commercially reasonable efforts to detect infringements of such Trademarks, Patents. Copyrights and Mask Works and promptly advise Bank in form writing of material infringements detected which could reasonably acceptable be expected to have a Material Adverse Effect and (iii) not allow any such Trademarks, Patents, Copyrights, or Mask Works to be abandoned, forfeited or dedicated to the public without the written consent of Bank, listing any applications or registrations which shall not be unreasonably withheld, unless Bank determines that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankreasonable business practices suggest that abandonment is appropriate.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bankthe Banks: (ia) as soon as available, but in any event within thirty forty-five (3045) days after the end of each calendar monthfiscal quarter, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, in a form certified by an officer of Borrower reasonably acceptable to Bank and certified by a Responsible OfficerBank; (iib) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's fiscal year, audited consolidated and unaudited consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) within five (5) days of filing, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 8Form 10-K. 10- K and K, 10-Q as and when 8-K filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could would reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Two Hundred Fifty Thousand Dollars ($100,000.00250,000.00) or more; and (ve) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days the reasonable request of any board-approved modifications theretoBank, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans plans, consolidating financial statements or other financial information generally prepared by Borrower in the ordinary course of business as such Bank may reasonably request from time to time; and (viii) within thirty (30) days of . Borrower shall deliver to the last day of each fiscal quarter, Banks with the quarterly financial statements a report Compliance Certificate signed by Borrower, a Responsible Officer in substantially the form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankExhibit D attached hereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower Borrowers shall deliver the following to BankAdministrative Agent: (ia) as soon as available, but in any event within thirty (30) days after the end last day of each calendar monthfiscal quarter, an aged listings of accounts receivable and accounts payable by invoice date and a deferred revenue report; (b) as soon as available, but in any event within thirty (30) days after the last day of each fiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement, and cash flow statement and statement of cash flow, covering Borrower's Borrowers’ operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank Administrative Agent and certified by a Responsible Officer, together with a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto; (iic) as soon as available, but in any event within one hundred fifty twenty eighty (150120) days after the end of Borrower's Borrowers’ fiscal year, audited consolidated financial statements of Borrower Borrowers prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank Administrative Agent; (Bank acknowledges that CohnReznick LLP is acceptabled) as soon as available, but in any event no later than the earlier to occur of thirty (30) days following the beginning of each fiscal year or the date of approval by such Borrowers’ board of directors, an annual operating budget and financial projections (including income statements, balance sheets and cash flow statements) for such fiscal year, presented in a monthly format, approved by Borrowers’ board of directors, and in a form and substance acceptable to Administrative Agent in its reasonable business judgment (each, a “Financial Plan”); (iiie) copies of all statements, reports and notices sent or made available generally by a Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of Commission within five (5) days after such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2filing; (ivf) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against a Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to a Borrower or any Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000) or more; and (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viig) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank Administrative Agent may reasonably request from time to time; . Administrative Agent shall, promptly upon receipt, make available to the Lenders copies of all statements, reports and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable notices received from Borrowers pursuant to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to Bankthis Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Tabula Rasa HealthCare, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (i) as soon as available, but in any event within thirty (30) 25 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheets and income statement and statement of cash flow, statements covering Borrower's ’s operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty 25 days after the end of each fiscal quarter of Borrower, a company prepared consolidated balance sheet and income statement covering Borrower’s operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (150iii) as soon as available, but in any event within 90 days after the end of each fiscal year of Borrower, a company prepared draft of Borrower’s annual financial statements, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iv) as soon as available, but in any event within 180 days after the end of Borrower's ’s fiscal year, audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified (including no going concern comment or qualification) otherwise consented to in writing by Bank on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiiv) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivvi) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00) 250,000 or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) 30 days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's ’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankProperty.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, sheet and income statement and statement of cash flow, covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank, provided that such financial statements for the fiscal year ended December 31, 2003 shall be delivered to Bank (on or before June 30, 2004, and such financial statements for the fiscal year ended December 31, 2004 shall be delivered to Bank acknowledges that CohnReznick LLP is acceptable)on or before August 31, 2005; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Thousand Dollars ($100,000.00100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vie) as soon as available, but in any event not later than January 31 sixty (60) days after the last day of each calendar fiscal year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business plan, projections and budget, presented in a month-by-month format, budget for such the next year, with written certification signed by a Responsible Officer evidence of approval thereof by Borrower's board Board of directorsDirectors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viif) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business as business. Borrower shall deliver to Bank may reasonably request with the monthly financial statements, a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto. Borrower shall deliver to Bank, on the first day of each month, a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto, together with aged listings of accounts receivable and accounts payable. Bank shall have a right from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable time hereafter to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in audit Borrower's Intellectual Property CollateralAccounts and appraise Collateral at Borrower's expense, including but not limited to any subsequent ownership right provided that such audits will be conducted no more often than every six (6) months thereafter unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Soundbite Communications Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, sheet and income statement and statement (and, within thirty (30) days after the end of each calendar quarter, a cash flow, flow statement) covering Borrower's ’s and Borrower’s Subsidiaries’ consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within one hundred fifty twenty (150120) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time, including but not limited to annual financial projections for each fiscal year to be delivered to Bank no later than October 31 of the preceding year with updated projections to be provided by Borrower to Bank on April 30 of each year; and (viiif) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral’s intellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement. Within thirty (30) days after the last day of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto. Bank shall have a right from time to time hereafter to audit Borrower’s Accounts and appraise Collateral at Borrower’s expense, provided that such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income income, and cash flow statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (iib) as soon as available, but in any event within (i) one hundred fifty (150) days of Borrower’s fiscal year ended 2001 (which shall reflect no material adverse changes from the company-prepared financial statements for the same period) and, thereafter, (ii) one hundred twenty (120) days after the end of Borrower's ’s fiscal year, in each case audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (Bank acknowledges that CohnReznick LLP is acceptable)Bank; (iiic) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 810-K. 10- K and 10-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a 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 One Hundred Fifty Thousand Dollars ($100,000.0050,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time generally prepared by Borrower in the ordinary course of business, including but not limited to Borrower’s annual business as Bank may reasonably request from time to timeplan (including operating budget) within thirty (30) days following Borrower’s fiscal year end; and (viiif) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral’s intellectual property, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not previously identified specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to BankBank by Borrower in connection with this Agreement. Within twenty (20) days after the last day of each month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with aged listings of accounts receivable and accounts payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto. Bank shall have a right from time to time hereafter to audit Borrower’s Accounts and appraise Collateral at Borrower’s expense, provided that such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to BankBank in each case at both the Inglewood and the Boston addresses referenced in Section 10: (ia) as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet, income income, and cash flow statement and statement of cash flow, covering Borrower's ’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form reasonably acceptable to Bank and certified by a Responsible Officer; , (iib) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower's ’s fiscal year, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion which is unqualified (including no going concern comment or qualification) on such financial statements of a PCAOB-registered an independent certified public accounting firm reasonably acceptable to Bank (provided such opinion may contain a “going concern” qualification as long as the results of Borrower’s operations are substantially in accordance with financial budgets submitted to Bank acknowledges that CohnReznick LLP is acceptable)by each year within 60 days after the close of each fiscal year and approved by Bank, which approval will not be unreasonably withheld; (iiic) copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and and, if applicable, all reports on Forms 810-K. 10- K and 10l0-Q as and when filed with the Securities and Exchange Commission, provided that prompt notice from Borrower to Bank of the filing of such statements, reports, notices and forms on XXXXX shall be considered sufficient delivery of such statements, reports, notices and forms pursuant to the requirements of this Section 6.2; (ivd) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Five Hundred Thousand Dollars ($100,000.00500,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower's independent certified public accounting firm regarding Borrower's management control systems; (vi) as soon as available, but in any event not later than January 31 of each calendar year, and within seven (7) days of any board-approved modifications thereto, Borrower's financial and business projections and budget, presented in a month-by-month format, for such year, with written certification signed by a Responsible Officer of approval thereof by Borrower's board of directors; provided that Borrower's board approved 2018-2019 plan shall have been provided to, reviewed and approved by Bank prior to the Closing Date; (viie) such budgets, sales projections, operating plans financial budgets or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viiif) within thirty one hundred fifty (30150) days after the end of the last day of each Borrower’s fiscal quarteryear, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower's Intellectual Property Collateral’s intellectual property. Borrower shall deliver to Bank with the monthly financial statements, including but not limited at both the Inglewood and the Boston addresses referenced in Section 10, a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto. Bank shall have a right from time to any subsequent ownership right time hereafter to audit Borrower’s Accounts and appraise Collateral at Borrower’s expense, provided that such audits will be conducted no more often than once per year unless an Event of Borrower in or to any Trademark, Patent or Copyright not previously identified to BankDefault has occurred and is continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Adnexus Therapeutics, Inc.)
