AND LENDERS COPIES OF ANNUAL AUDITED CONSOLIDATED AND,
IF AVAILABLE, CONSOLIDATING BALANCE SHEETS, STATEMENTS OF OPERATIONS AND CASH
FLOW STATEMENTS, CERTIFIED WITHOUT QUALIFICATION BY A RECOGNIZED FIRM OF
CERTIFIED PUBLIC ACCOUNTANTS, WITHIN 5 DAYS AFTER THE STATEMENTS ARE REQUIRED TO
BE PROVIDED TO THE SEC AND BORROWER SHALL DELIVER TO AGENT AND LENDERS WITHIN 30
DAYS AFTER THE END OF EACH MONTH REPORTS OF CASH BALANCES OF THE LOAN PARTIES
AND MONTHLY PRESCRIPTION NUMBERS FOR GLUMETZA AND PROQUIN AS COMPARED TO THE
CURRENT BUDGET.
ALL SUCH STATEMENTS (OTHER THAN THE PRESCRIPTION NUMBERS
REFERENCED IN THE IMMEDIATELY PRECEDING SENTENCE) ARE TO BE PREPARED USING GAAP
(SUBJECT, IN THE CASE OF UNAUDITED FINANCIAL STATEMENTS, TO THE ABSENCE OF
FOOTNOTES AND NORMAL YEAR END AUDIT ADJUSTMENTS) AND, IF BORROWER IS A PUBLICLY
HELD COMPANY, ARE TO BE IN COMPLIANCE WITH APPLICABLE SEC REQUIREMENTS.
ALL
ANNUAL AND QUARTERLY FINANCIAL STATEMENTS DELIVERED PURSUANT TO THIS SECTION 6.3
SHALL BE ACCOMPANIED BY A COMPLIANCE CERTIFICATE, SIGNED BY THE CHIEF
16
FINANCIAL OFFICER OR PRINCIPAL ACCOUNTING OFFICER OF BORROWER, IN THE FORM
ATTACHED HERETO AS EXHIBIT D, AND A MANAGEMENT DISCUSSION AND ANALYSIS THAT
INCLUDES A COMPARISON TO BUDGET FOR THE RESPECTIVE FISCAL PERIOD AND A
COMPARISON OF PERFORMANCE FOR SUCH FISCAL PERIOD TO THE CORRESPONDING PERIOD IN
THE PRIOR YEAR.
BORROWER SHALL DELIVER TO AGENT AND LENDERS (I) AS SOON AS
AVAILABLE AND IN ANY EVENT NOT LATER THAN 60 DAYS AFTER THE END OF EACH FISCAL
YEAR OF BORROWER, A PROPOSED ANNUAL OPERATING BUDGET FOR BORROWER, ON A
CONSOLIDATED AND, IF AVAILABLE, CONSOLIDATING BASIS, APPROVED BY THE BOARD OF
DIRECTORS OF BORROWER, FOR THE CURRENT FISCAL YEAR, IN FORM SATISFACTORY TO
AGENT AND (II) SUCH BUDGETS, SALES PROJECTIONS, OR OTHER FINANCIAL INFORMATION
AS AGENT OR ANY LENDER MAY REASONABLY REQUEST FROM TIME TO TIME GENERALLY
PREPARED BY BORROWER IN THE ORDINARY COURSE OF BUSINESS.
6.4.
INSURANCE.
BORROWER, AT ITS EXPENSE, SHALL MAINTAIN, AND SHALL CAUSE
EACH SUBSIDIARY TO MAINTAIN, INSURANCE (INCLUDING, WITHOUT LIMITATION,
COMPREHENSIVE GENERAL LIABILITY, HAZARD, AND BUSINESS INTERRUPTION INSURANCE)
WITH RESPECT TO ALL OF ITS PROPERTIES AND BUSINESSES (INCLUDING, THE
COLLATERAL), IN SUCH AMOUNTS AND COVERING SUCH RISKS AS IS CARRIED GENERALLY IN
ACCORDANCE WITH SOUND BUSINESS PRACTICE BY COMPANIES IN SIMILAR BUSINESSES
SIMILARLY SITUATED AND IN ANY EVENT WITH DEDUCTIBLE AMOUNTS, INSURERS AND
POLICIES THAT SHALL BE REASONABLY ACCEPTABLE TO AGENT.
BORROWER SHALL DELIVER
TO AGENT CERTIFICATES OF INSURANCE EVIDENCING SUCH COVERAGE, TOGETHER WITH
ENDORSEMENTS TO SUCH POLICIES NAMING AGENT AS A LENDER LOSS PAYEE OR ADDITIONAL
INSURED, AS APPROPRIATE, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
AGENT.
EACH POLICY SHALL PROVIDE THAT COVERAGE MAY NOT BE CANCELED OR ALTERED
BY THE INSURER EXCEPT UPON 30 DAYS PRIOR WRITTEN NOTICE TO AGENT AND SHALL NOT
BE SUBJECT TO CO-INSURANCE.
BORROWER APPOINTS AGENT AS ITS ATTORNEY-IN-FACT TO
MAKE, SETTLE AND ADJUST ALL CLAIMS UNDER AND DECISIONS WITH RESPECT TO
BORROWER'S POLICIES OF INSURANCE, AND TO RECEIVE PAYMENT OF AND EXECUTE OR
ENDORSE ALL DOCUMENTS, CHECKS OR DRAFTS IN CONNECTION WITH INSURANCE PAYMENTS.