Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii). (b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date). (c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Sources: Loan and Security Agreement (Vitesse Semiconductor Corp)
Financial Statements, Reports, Certificates. Borrower shall deliver to each Lender: (a) Deliver to Bank: Borrower will provide quarterly financials in the form provided in its 10-Q, a Borrower prepared Consolidated balance sheet, Consolidated income statement and Consolidated cash flow statement covering Borrower’s operations during such period, certified by Borrower’s president, treasurer or chief financial officer (ieach, a “Responsible Officer”); (b) as soon as available, but no later than the earlier to occur of three in any event within one hundred twenty (3120) days after the end of Borrower’s fiscal year, audited Consolidated financial statements of Borrower prepared in accordance with GAAP, together with an unqualified opinion on such financial statements of a nationally recognized or other independent public accounting firm reasonably acceptable to Lender (Lender acknowledges that G▇▇▇▇ ▇▇▇▇▇▇▇ LLP is reasonably acceptable); and (c) as soon as available, but in any event within sixty (60) days after the earlier of (i) the end of Borrower’s fiscal year or (ii) the date of Borrower’s board of directors’ adoption, Borrower’s operating budget and plan for the next fiscal year; and (d) such other financial information as Lender may reasonably request from time to time. From and after such time as Borrower becomes a publicly reporting company, promptly as they are available and in any event: (i) at the time of filing of Borrower’s Form 10-K with the Securities and Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal yearyear of Borrower, annual the financial projections for statements of Borrower filed with such Form 10-K; and (ii) at the following time of filing of Borrower’s Form 10-Q with the Securities and Exchange Commission after the end of each of the first three fiscal year quarters of Borrower, the Consolidated financial statements of Borrower filed with such Form 10-Q. Borrower shall be deemed to deliver its 10-K and 10-Q to Lender when such materials are posted on the website of the Securities and Exchange Commission. In addition, Borrower shall deliver to Lender (A) promptly upon becoming available, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders, which items shall be deemed to have been delivered when posted on the website of the Securities and Exchange Commission and (B) promptly upon receipt of notice thereof, a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt report of any material legal actions pending or threatened in writing against Borrower or any Subsidiary or the commencement of any legal action, proceeding or governmental investigation involving Borrower or any Subsidiary that could is reasonably expected to result in damages or costs to Borrower or any Subsidiary of Two Hundred Fifty Thousand Dollars ($500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii250,000).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Sources: Venture Loan and Security Agreement (Interleukin Genetics Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within ninety (390) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan 18 independent certified public accounting firm reasonably acceptable to Bank; (ivb) within forty-five (45) days of the last day of each fiscal quarter, 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 Form 10-Q filed with the Securities and Exchange Commission for such period; (c) 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 ($500,000 100,000) or more; (d) upon Bank's reasonable request, but in any event not less than once every calendar quarter, notice of any material change in the composition of the Intellectual Property Collateral, including, 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 that materially adversely effects the value of the Intellectual Property Collateral; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within forty-five (b) Within twenty (2045) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablefiscal quarter, Borrower shall deliver to Bank an aged listing of accounts receivable and accounts payable. Borrower shall deliver to Bank with the quarterly financial statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date).
(c) Allow Exhibit C hereto. Bank shall have a right from time to time hereafter to audit Borrower's Collateral Accounts at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three (3) days after filing with on or before the Securities and Exchange Commission or 45 days after each quarter end (the "SEC") deadline for filing its Form 10-Q, a company prepared consolidated balance sheet, income, and cash flow statement covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Bank and certified by a Responsible Officer; (b) on or before the Borrower's SEC deadline for filing its Form 10-K, 10Qaudited consolidated financial statements of Borrower prepared in accordance with GAAP, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directorsconsistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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; (d) 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable payable. Borrower shall deliver to Bank, within twenty (20) days after the last day of each month, a Compliance Certificate signed by invoice date).
(c) Allow 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, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct 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 audits at information to the SEC, it shall provide such frequency as information to Bank in its sole discretion may determine from time to timea similar timeframe.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to BankLender: (i) as soon as available, but no later than the earlier to occur of three forty (340) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodfiscal quarter, prepared under GAAP by Borrower, consistently applied, quarterly consolidated and consolidating balance sheets and income statements covering consolidated and consolidating operations of PlanetOut and its Subsidiaries during the Borrower's 10K, 10Q, period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Lender; (ii) a Compliance Certificate together with delivery as soon as available, but no later than ninety (90) days after the last day of the 10K and 10Q reportsPlanetOut’s fiscal year, reviewed annual financial statements prepared under GAAP, consistently applied, prepared by Stonefield J▇▇▇▇▇▇▇▇ or another independent certified public accounting firm reasonably acceptable to Lender; (iii) within 45 days after five (5) Business Days of filing, copies of all reports on Forms 10-K and 10-Q filed with the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) a prompt report of any legal actions pending or threatened against any Borrower or any Subsidiary that could of their Subsidiaries which would reasonably be expected to result in damages or costs to any Borrower or any Subsidiary of their Subsidiaries of $500,000 100,000 or more, or which would reasonably be expected to cause a Material Adverse Change (collectively, “Material Litigation”); and (v) budgets, sales projections, operating plans or other financial information Bank Lender reasonably requests. Borrower's Lender acknowledges that Borrowers may fulfill their obligations to provide financial statements as described in subsections (i) and (ii) above by the delivery of PlanetOut’s periodic reports on Forms 10K, 10Q, -K and 8K reports 10-Q in accordance with this Section 6.2. Documents required to be delivered pursuant to this Section 6.2(a)(i6.2(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 Borrowers post such report documents, or provides a link thereto on Borrower's or another the Borrowers’ website on the InternetInternet at Borrowers’ website address of w▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (or such other website address as Borrowers may provide to Lender in writing from time to time); providedprovided that: (x) to the extent Lender is otherwise unable to receive any such electronically delivered documents, that Borrower shall provide Borrowers shall, upon request by Lender, deliver paper copies of such documents to Bank Lender, in number sufficient for each Lender, until a written request to cease delivering paper copies is given by Lender and (y) Borrowers shall notify Lender (by telecopier or electronic mail) of the Compliance Certificates required posting of any such documents or provide to Lender by Section 6.2(a)(ii)electronic mail electronic versions (i.e., soft copies) of such documents.
(b) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank Lender a duly completed Borrowing Base Certificate (in the form of Exhibit A) with an Accounts receivable aging summary and reconciliation report and summary of Accounts payable, each signed by a Responsible Officer.
(c) Within 30 days after the last day of each quarter, deliver to Lender with the quarterly financial statements a Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in the form of accounts receivable and accounts payable (by invoice date).Exhibit B.
(cd) Allow Bank Lender to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every six (6) months upon 2 business days advance notice unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to BankLenders: (i) as soon as available, but no later than the earlier to occur of three five (35) days after filing following the date Borrower files Form 10-Q with the Securities and Exchange Commission or 45 days after each quarter end periodCommission, a company prepared consolidated balance sheet, income statement and cash flow statement covering the Borrower's 10Kconsolidated operations of Borrower and its Subsidiaries for such quarter, 10Qprepared under GAAP, and 8K reports, as applicableconsistently applied (except for the absence of footnotes); (ii) a Compliance Certificate as soon as available, but no later than five (5) days following the date Borrower files Form 10-K with the Securities and Exchange Commission, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (provided that Lenders acknowledge that a going concern qualification, in and of the 10K and 10Q reportsitself, will not render such opinion unacceptable to Lenders); (iii) within 45 days as soon as available after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved approval thereof by Borrower's board ’s Board of directorsDirectors, together with any related business forecasts used in the preparation of such annual financial projections; but no later than sixty (iv) 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 $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (2060) days after the last day of each month when of Borrower’s fiscal years, Borrower’s financial projections for the Borrowing Base Formula regarding Advance is entire current fiscal year as approved by Borrower’s Board of Directors, which such annual projections shall be set forth in a quarterly format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”); (iv) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) notice of the registration of any copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark, and (C) prompt notice of Borrower’s knowledge of any event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property; (v) as soon as available, but no later than forty-five (45) days after the last day of the first two months of each fiscal quarter, Borrower’s unaudited consolidated balance sheet and statement of operations in a form consistent with that used by the Borrower for the condensed financial statements included in the Forms 10-Q filed by the Borrower with the Securities and Exchange Commission prepared in accordance with GAAP, except (A) for the absence of footnotes, (B) that they are subject to normal year-end adjustments, and (C) they do not contain certain non-cash items that are customarily included in quarterly and annual financial statements; (vi) as soon as available, but no later than forty-five (45) days after the last day of each month, copies of the month-end account statements for each deposit account or securities account maintained by Borrower or any Subsidiary, which account statements may be provided to Collateral Agent by Borrower or directly from the applicable bank(s), and (vii) other financial information as reasonably requested by Collateral Agent or any Lender.
(b) Concurrently with the delivery of the financial statements specified in Section 6.2(a)(i), 6.2(a)(ii) and 6.2(a)(v) above, as applicable, deliver to Bank Collateral Agent, a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank Within five (5) days of filing, provide access (via posting and/or links on Borrower’s website) to audit Borrower's Collateral at Borrower's expense, all reports on Form 10-K and Form 10-Q filed with the first Securities and Exchange Commission (“SEC”) (which shall satisfy Borrower’s reporting requirements under Section 6.2(a)(i) and Section 6.2(a)(ii) above), any Governmental Authority succeeding to any or all of such audits the functions of the SEC or with any national securities exchange; and within five (5) days of filing, provide notice and access (via posting and/or links on Borrower’s website) to be completed no later than March 2, 2006all reports on Form 8-K filed with the SEC, and copies of (or access to, via posting and/or links on Borrower’s website) all other reports, proxy statements and other materials filed by Borrower with results acceptable the SEC, any Governmental Authority succeeding to Bank. Such audits any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be.
(d) Keep proper books of record and account in accordance with GAAP in all material respects, in which full, true and correct entries shall be conducted made of all material dealings and transactions in relation to its business and activities. Borrower shall allow, at a frequency that Bank shall determine in its the sole cost of Borrower, Collateral Agent and Lenders, during regular business hours upon reasonable discretion, provided that if a Default or prior notice (except while an Event of Default has occurred and is continuing Bank may continuing), to visit and inspect any of its properties, to examine and make abstracts or copies from any of its books and records, and to conduct such a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than twice every twelve months unless an Event of Default has occurred and is continuing.
(e) Collateral Agent and Lenders shall be entitled at such frequency as Bank in its sole discretion may determine from time reasonable times and intervals to timeconsult with and advise the management and officers of Borrower concerning significant business issues affecting Borrower. Such consultations shall not unreasonably interfere with Borrower’s business operations. The parties intend that the rights granted Collateral Agent and Lenders shall constitute “management rights” within the meaning of 29 C.F.R Section 2510.3-101(d)(3)(ii), but that any advice, recommendations or participation by Lender with respect to any business issues shall not be deemed to give Collateral Agent or Lenders, nor be deemed an exercise by Collateral Agent or Lenders of, control over Borrower’s management or policies.
Appears in 1 contract
Sources: Loan and Security Agreement (Anacor Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within forty-five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement, cash flow statement and recurring revenue report 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 eighty (180) days after the end of Borrower’s fiscal year, annual audited consolidated and consolidating financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower 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 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 related business forecasts used in holders of Subordinated Debt and all reports on Forms 10-K and 10-Q filed with the preparation Securities and Exchange Commission within five (5) days of such annual financial projectionsfiling with the Securities and Exchange Commission; (iv) promptly upon receipt of notice thereof, 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 Five Hundred Thousand Dollars ($500,000 500,000.00) or moremore or any other matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; 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 sixty (60) days after the end of each fiscal year, Borrower’s financial and business projections and budget (on a quarterly basis, including income statements, balance sheets and cash flow statements, by quarter) for the immediately following year, with evidence of approval thereof by Borrower’s Board of Directors, and contemporaneously with delivery or approval by Borrower’s Board of Directors, any 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 requests. Borrower's 10Krequest from time to time, 10Q(viii) 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, (ix) prompt notice of the creation or acquisition of any Subsidiary, and 8K reports required to (x) within five (5) Business 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 delivered pursuant to Section 6.2(a)(i) shall be deemed expected to have been delivered a material effect on any of the governmental approvals or otherwise on the date on which operations of Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank any of the Compliance Certificates required by Section 6.2(a)(ii)its Subsidiaries.
(b) Within twenty forty-five (2045) days after the last day of each month when quarter, deliver to Bank aged listings by invoice date of accounts receivable and accounts payable.
(c) Within forty-five (45) days after the Borrowing Base Formula regarding Advance is applicablelast day of each quarter, deliver to Bank with the quarterly financial statements a Compliance Certificate certified as of the last day of the applicable quarter and signed by a Responsible Officer in substantially the form of Exhibit D hereto.
(d) Immediately upon becoming aware of the occurrence or existence of an Event of Default hereunder, deliver to Bank a duly completed Borrowing Base Certificate signed written statement of a Responsible Officer setting forth details of the Event of Default, and the action which Borrower has taken or proposes to take with respect thereto. Borrower may deliver to Bank on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files, provided that Bank in good faith believes that the files were delivered by a Responsible Officer. If Borrower delivers this information electronically, with it shall also deliver to Bank by U.S. Mail, reputable overnight courier service, hand delivery, or .pdf file within five (i5) aged listings Business Days of accounts receivable submission of the unsigned electronic copy the certification of quarterly financial statements and accounts payable (by invoice date)the Compliance Certificate, each bearing the physical signature of the Responsible Officer.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Sources: Loan and Security Agreement (Apex Technology Acquisition Corp)
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) 30 days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than 120 days after the last day of Borrower's fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an opinion which is unqualified or otherwise consented to by Bank on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 250,000 or more; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, ; and 8K reports required to be delivered pursuant to Section 6.2(a)(i(v) shall be deemed to have been delivered on prompt notice of any material change in the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank composition of the Compliance Certificates required by Section 6.2(a)(ii)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 Bank or knowledge of an event that materially adversely affects the value of the Intellectual Property.
(b) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower will deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable by due date, including payment terms, and accounts payable (by invoice due date), including payment terms.
(c) Within 30 days after the last day of each month, Borrower will deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bankprovided each audit shall not exceed $1,500. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every year unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and each of its Subsidiaries’ consolidated and consolidating operations during the Borrower's 10K, 10Q, period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than ninety (90) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 five (5) days after of filing, copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) 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 ($500,000 100,000.00) or more; (v) as soon as available, but not later than sixty (60) days prior to the last day of Borrower’s fiscal year, and contemporaneously with any updates thereto, board-approved projections for the subsequent fiscal year; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit B.
(c) Allow Bank to audit Borrower’s Collateral, including, but not limited to, Borrower’s Accounts at Borrower’s expense, upon reasonable notice to Borrower and at reasonable times; provided, however, prior to the occurrence of an Event of Default, Borrower shall be obligated to pay for not more than two (2) audits per year. Borrower hereby acknowledges that the first such audit will be conducted within ninety (90) days after the Effective Date. The charge for each such audit shall be Eight Hundred Fifty Dollars ($850.00) per person per day (or such higher amount as shall represent Bank’s then-current standard charge for the same), plus reasonable out-of-pocket expenses. After the occurrence of an Event of Default, Bank may audit Borrower’s Collateral, including, but not limited to, Borrower’s Accounts at Borrower’s expense and at Bank’s sole and exclusive discretion and without notification and authorization from Borrower.
(d) Upon Bank’s request, provide a written report respecting any Financed Receivable, if payment of any Financed Receivable does not occur by its due date and include the reasons for the delay.
(e) Provide Bank with, as soon as available, but no later than (i) (A) the first (1st) and fifteenth (15th) day of each Reconciliation Period while Borrower is Streamline Facility Eligible, or (B) thirty (30) days following each Reconciliation Period while Borrower is not Streamline Facility Eligible, an aged listing of accounts receivable, in form acceptable to Bank, and (ii) thirty (30) days following each Reconciliation Period, accounts payable by invoice date, in form acceptable to Bank.
(f) For each Reconciliation Period during which Borrower has Deferred Revenue, provide Bank with, as soon as available, but no later than thirty (30) days following each such Reconciliation Period, a Deferred Revenue report, in form acceptable to Bank.
(g) Immediately upon Borrower becoming Streamline Facility Eligible, and thereafter until Borrower is no longer Streamline Facility Eligible, provide Bank with, as soon as available, but no later than the first (1st) and fifteenth (15th) day of each Reconciliation Period, a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(ch) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits Immediately upon Borrower ceasing to be completed no later than March 2Streamline Facility Eligible, 2006provide Bank with a current aging of Accounts and, and with results acceptable to the extent not previously delivered to Bank. Such audits shall be conducted at , a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or copy of the invoice for each Eligible Account and an Event of Default has occurred Advance Request and is continuing Bank may conduct Invoice Transmittal with respect to each such audits at such frequency as Bank in its sole discretion may determine from time to timeAccount.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within forty five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each calendar quarter, a company prepared consolidated balance sheet, income, and cash flow statement in form of 10-Q filed with the Securities and Exchange Commission, covering Borrower’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Bank and certified by a Responsible Officer; (b) as soon as available, but in any event within one hundred and twenty (120) days after the end of Borrower’s fiscal year, annual consolidated financial projections for statements of Borrower prepared in accordance with GAAP, in form of 10-K filed with the following fiscal year Securities and Exchange Commission, (c) 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, if applicable, all reports on a quarterly basis) as approved by Borrower's board of directors, together Forms 10-K and 10-Q filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (ivd) 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requests. request from time to time, provided Borrower's 10K, 10Q, and 8K reports required to ’s Board-approved annual financial projections shall 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank within thirty (30) days of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Board approval. Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow payable. Bank shall have a right from time to time hereafter to audit Borrower's ’s Accounts and appraise Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or such audits will be conducted no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Sources: Loan and Security Agreement (Rainmaker Systems Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) 30 days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, a company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during the Borrower's 10Kperiod certified by a Responsible Officer and in a form acceptable to Bank, 10Q, and 8K reports, as applicablein Bank’s good faith business judgment; (ii) (x) as soon as available, but not later than 5 days following the filling with the Securities and Exchange Commission of Borrower’s Quarterly Report on form 10-Q, a Compliance Certificate copy of Borrower’s form 10-Q; (y) as soon as available, but no later than 5 days following the filling with the Securities and Exchange Commission of Borrower’s Annual Report on form 10-K, Borrower’s form 10-K including audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 250,000 or more, or in which an adverse decision could reasonably be expected to cause a Material Adverse Change; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on without limitation of the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; providedforegoing, that Borrower shall provide paper copies to Bank Bank, no later than the beginning of each fiscal year of the Compliance Certificates required by Section 6.2(a)(ii)Borrower, a Board of Directors-approved budget for the Borrower for such fiscal year; and (v) prompt 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 Bank or knowledge of an event that materially adversely affects the value of the Intellectual Property.
(b) Within twenty (20) 20 days after the last day of each month when any Advances are outstanding and prior to the Borrowing Base Formula regarding making of any Advance when no Advances are then outstanding (and under such circumstance the following shall be delivered in such time period prior to the proposed Advance as Bank shall determine is applicablenecessary or advisable), Borrower will deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings (by invoice date) of accounts receivable and accounts payable (by invoice date)together with a report regarding deferred revenue in form acceptable to Bank.
(c) Within 30 days after the last day of each month, Borrower will deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2completed, 2006, and with results acceptable satisfactory to BankBank prior to the making of any Advances hereunder (it being understood that Bank has heretofore conducted an audit of Borrower’s Collateral). Such After the initial audit, such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretionno more often than every 6 months, provided that if a Default or unless an Event of Default or Default has occurred and is continuing Bank may conduct and in such event there shall be no limitation as to the frequency of audit conducted. Further, upon the effectiveness of the Asset Based Terms, an audit shall be conducted within 90 days of the effectiveness thereof and subsequent audits shall be conducted on a quarterly basis or at such other frequency as the conditions warrant as Bank shall determine in its sole discretion may good faith business judgment (unless there are no Credit Extensions outstanding and Borrower has not requested that Bank extend any Credit Extensions hereunder and in such case audits shall be conducted not more frequently than quarterly, or as Bank shall reasonably determine from time as conditions warrant). In connection with Bank’s field audits, Borrower shall pay to timeBank the sum of $750 per day during such audit, plus Bank’s reasonable out of pocket expenses incurred in connection therewith.
Appears in 1 contract
Sources: Loan and Security Agreement (North American Scientific Inc)
Financial Statements, Reports, Certificates. (i) Borrower shall deliver to Bank:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within twenty-five (325) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank;
(b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with
(c) 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 Form 10-K, 1 0-Q and 8-K filed with any related business forecasts used in the preparation Securities and Exchange Commission;
(d) promptly upon receipt of such annual financial projections; (iv) 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 ($500,000 100,000) or more; and ;
(ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requests. Borrower's 10K, 10Q, and 8K reports required request from time 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)time.
(bf) Within twenty within twenty-five (2025) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of EXHIBIT C hereto, together with (i) aged listings of accounts receivable and accounts payable (by invoice date)receivable.
(cg) Allow within twenty-five (25) days after the last day of each month, with the monthly financial statements, a Compliance Certificate signed by a Responsible Officer in substantially the form of EXHIBIT D hereto.
(ii) Bank shall have a right from time to time hereafter to audit Borrower's Collateral Accounts at Borrower's expense, with the first of such audits audit to be completed no later than March 2, 2006, and with results acceptable prior to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretionthe Closing Date, provided that if a Default or such audits will be conducted no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Sources: Loan and Security Agreement (Art Technology Group Inc)
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three five (35) days Business Days after filing with the Securities and Exchange Commission or 45 days after each quarter end periodCommission, the Borrower's ’s 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 or more; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's ’s 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within thirty (30) days after the last day of each of the first two (2) months of each calendar quarter, deliver to Bank Borrower-prepared monthly unaudited financial statements together with a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the financial covenants set forth in this Agreement.
(c) At any time Advances are outstanding, within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(cd) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first up to a maximum of such audits to be completed no later than March 2$850 per day, 2006per person, and with results acceptable to Bankexcluding out of pocket expenses. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if no more often than once every 12 months unless a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Sources: Loan and Security Agreement (Ista Pharmaceuticals Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during such period, in a form and certified by an Officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower’s fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified (except as to going concern status) opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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 Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission; (d) 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 Fifty Thousand Dollars ($500,000 50,000) or more; (e) 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, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not specified in Exhibits A, B, and C of the Intellectual Property Security Agreement delivered to Bank by Borrower in connection with this Agreement, (f) as soon as available, updated financial projections of Borrower, and (vg) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form Exhibit D hereto, together with (i) aged listings of accounts receivable and accounts payable 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 invoice date).
(c) Allow 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 Collateral ’s Accounts at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or such audits will be conducted no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.continuing,
Appears in 1 contract
Financial Statements, Reports, Certificates. Each Co-Borrower shall deliver to Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within forty-five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each calendar quarter, a Co-Borrower prepared Consolidated balance sheet, Consolidated income statement and Consolidated cash flow statement covering such Co-Borrower’s operations during such period, certified by such Co-Borrower’s president, treasurer or chief financial officer (each, a “Responsible Officer”), (b) as soon as available, but in any event within ninety (90) days after the end of such Co-Borrower’s fiscal year, annual audited Consolidated financial projections for statements of such Co-Borrower prepared in accordance with GAAP, together with an unqualified opinion on such financial statements of a nationally recognized or other independent public accounting firm reasonably acceptable to Lender; and (c) as soon as available, but in any event within thirty (30) days after the following earlier of (i) the end of such Co-Borrower’s fiscal year or (on a quarterly basisii) as approved by the date of such Co-Borrower's ’s board of directors’ adoption, together with such Co-Borrower’s operating budget and plan for the next fiscal year; and (d) such other financial information as Lender may reasonably request from time to time. Additionally, each Co-Borrower shall provide Lender promptly as they are available and in any related business forecasts used in event: (i) at the preparation time of filing of such annual Co-Borrower’s Form 10-K with the Securities and Exchange Commission after the end of each fiscal year of such Co-Borrower, the financial projectionsstatements of such Co-Borrower filed with such Form 10-K; and (ivii) at the time of filing of such Co-Borrower’s Form 10-Q with the Securities and Exchange Commission after the end of each of the first three fiscal quarters of such Co-Borrower, the Consolidated financial statements of such Co-Borrower filed with such Form 10-Q. In addition, each Co-Borrower shall deliver to Lender (A) promptly upon becoming available, copies of all statements, reports and notices sent or made available generally by such Co-Borrower to its security holders and (B) immediately upon receipt of notice thereof, a prompt report of any material legal actions pending or threatened against any Co-Borrower or any Subsidiary or the commencement of any action, proceeding or governmental investigation involving any Co-Borrower or any Subsidiary is commenced that could is reasonably expected to result in damages or costs to Borrower any Co-Borrower, or any Subsidiary all Co-Borrowers collectively, of One Hundred Thousand Dollars ($500,000 100,000) or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Sources: Venture Loan and Security Agreement (Catasys, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to Servicing Agent: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, agings of accounts receivable and accounts payable, in a form reasonably acceptable to Servicing Agent and certified by a Responsible Officer; (b) within fifteen (15) 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 Form 10-K (including audited annual financial statements and an unqualified opinion (except for a "going concern" exception) from Borrower's independent certified public accountants), 10-Q (including quarterly financial statements) and 8-K filed with the Securities and Exchange Commission; ( c) as soon as available, but in any event within sixty (60) days of the last day of each fiscal quarter, Guarantor's quarterly financial statements; (d) as soon as available, but in any event within one hundred twenty (120) days of the last day of each fiscal year, audited annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrowerstatements of Guarantor and an unqualified opinion from Guarantor's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsindependent certified public accountants; (ive) 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 ($500,000 100,000) or more; , and (vf) such budgets, sales projectionsfinancial forecasts, operating plans or other financial information as Bank may be reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank with the quarterly financial statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date)Exhibit D hereto.
(c) Allow Bank 2. Section 7.11 is amended to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency read as Bank in its sole discretion may determine from time to time.follows:
Appears in 1 contract
Sources: Loan and Security Agreement (Integrated Packaging Assembly Corp)
Financial Statements, Reports, Certificates. (a) Deliver Borrower ------------------------------------------- shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within forty-five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each quarter, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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 ($500,000 100,000) or more; and (vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within forty-five (b) Within twenty (2045) days after the last day of each month when quarter and within one hundred twenty (120) days after the Borrowing Base Formula regarding Advance is applicableend 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 after the end of each month, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate written certification in form and substance satisfactory to Bank, signed by a Responsible Officer, confirming Borrower's compliance with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow 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 Collateral Accounts at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank continuing."
6. The Loan Agreement shall be amended by deleting Sections 6.8 (entitled "Adjusted Quick Ratio") and 6.9 (entitled "Tangible Net Worth) in its sole discretion may determine from time to time.their entirety and inserting in lieu thereof the following:
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal yearcalendar month, annual financial projections for the following fiscal year (on a quarterly basis) as approved company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Bank and certified by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsa Responsible Officer; (ivb) 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 filed with the Securities and Exchange Commission including without limitation on Forms 10-K and 10-Q; (c) 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 Fifty Thousand Dollars ($500,000 50,000) or more; (d) as soon as available, but in any event within thirty (30) days after Borrower’s fiscal year end, an operating budget in form reasonably acceptable to Bank and approved by Borrower’s board of directors; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within thirty (b) Within twenty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by invoice date).
(c) Allow 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 ’s Accounts and appraise Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank, beginning as of the month ended December 31, 1998: (i) as soon as available, but no later than the earlier to occur of three (3) 30 days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during the period, the Borrower's 10K, 10Q, in a form and 8K reports, as applicablecertified by a Responsible Officer acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than 120 days after the last day of Borrower's fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm acceptable to Bank; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 100,000 or more; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) 20 days after the last day of each month, beginning with the first month when that there are outstanding Advances and prior to the Borrowing Base Formula regarding initial Advance is applicableunder the Committed Revolving Line, Borrower will deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and accounts payable (by invoice date)receivable.
(c) Allow Bank has the right to audit Borrower's Collateral at Borrower's expense, with but the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than twice every year unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency continuing. Notwithstanding the foregoing, the initial audit (the cost of which shall be included in Borrower's activation fee as Bank described in its sole discretion may determine from time Section 3.2) of Borrower's Collateral shall be prior to timeany Advances under the Committed Revolving Line.
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Financial Statements, Reports, Certificates. Borrower shall deliver the following to Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within forty-five (345) days after filing the end of each calendar quarter, a company prepared consolidated balance sheet, income statement, and cash flow statement covering Borrower’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Lender and certified by a Responsible Officer (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 45 intranet website; (b) as soon as available, but in any event within one hundred twenty days (120) 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 on such financial statements of an independent certified public accounting firm reasonably acceptable to Lender (the “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 quarter end calendar quarter, a company prepared report on key operating metrics tracked by Borrower covering Borrower’s consolidated operations during such period, the Borrower's 10Kincluding, 10Qwithout limitation, and 8K reportsanalysis of: (i) gross dollar retention, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; net dollar retention, (iii) logo retention and (iv) any other key performance indicators tracked by Borrower; (d) copies 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, if applicable, all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission; (e) promptly upon receipt of notice thereof, a report of any legal actions pending against Borrower or any Subsidiary that could result in damages to Borrower or any Subsidiary of Fifty Thousand Dollars ($50,000) or more; (f) within 45 sixty (60) days after the end of each fiscal yearyear of Borrower, and contemporaneously with any updates or amendments thereto, annual financial projections for the following fiscal year (on a quarterly basis) ), in each case as approved by the Borrower's board ’s Board of directorsDirectors, together with any related business forecasts used in the preparation of such annual financial projections; (ivg) a prompt report within sixty (60) days prior to the end of each fiscal year of Borrower, and contemporaneously with any legal actions pending updates or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary amendments thereto, Borrower’s anticipated Recurring Revenue budget, as approved by the Borrower’s Board of $500,000 or more; Directors, for the following fiscal year (the “Financial Projections), and (vh) such budgets, sales projections, operating plans or other financial information Bank as Lender may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within forty-five (b) Within twenty (2045) days after the last day of each month when calendar quarter, commencing with the Borrowing Base Formula regarding Advance is applicablecalendar quarter ended December 31, 2020, Borrower shall deliver to Bank Lender a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank and a computer file with information on all Recurring Revenue included in the Borrowing 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 audit Borrower's Collateral at Borrower's expense, Lender with the first Quarterly Financial Statements and the Annual Financial Statement, a Compliance Certificate signed by a Responsible Officer in substantially the form of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeExhibit D hereto.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after the last day of each quarter end periodquarter, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s consolidated operations during the Borrower's 10K, 10Q, period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than 120 days after the last day of Borrower’s fiscal year, audited consolidated and consolidating financial statements prepared under GAAP, consistently applied, together with delivery of an opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved in form and substance commensurate with those provided to Borrower’s board of directors or utilized by Borrower's board of directors’s executive management, together with any related business forecasts used in the preparation of such annual financial projectionsform and substance satisfactory to Bank; (iv) within 5 days of filing, copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission (the “SEC”) (other than those reports on Form 10-K, 10-Q or 8-K (relating to certification) that are otherwise publicly available through the SEC’s E▇▇▇▇ system); (v) a prompt report of any legal actions pending claim, proceeding, litigation, or investigation in the future threatened or instituted against Borrower or any Subsidiary that could which would reasonably be expected to result in damages or costs to Borrower or any Subsidiary of $500,000 or more, exclusive of litigation the potential liability in connection with which is fully insured against; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) 45 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablequarter, Borrower will deliver to Bank with the quarterly financial statements a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date)Compliance Certificate.
(c) Allow Borrower will allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with and the first of charge therefor shall be $750 per person per day (or such audits to be completed no later higher amount as shall represent Bank’s then current standard charge for the same), plus reasonable out-of-pocket expenses. In the event Borrower and Bank schedule and audit more than March 2, 200610 days in advance, and Borrower seeks to reschedule the audit with results acceptable less than 10 days written notice to Bank, then (without limiting any of Bank’s rights and remedies) Borrower shall pay Bank a cancellation fee of $1,000 plus any out-of-pocket expenses incurred by Bank to compensate Bank for the anticipated costs and expenses of cancellation. Such The results of audits shall will be satisfactory to Bank, and audits will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every year unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeshall have occurred.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each calendar month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form acceptable to Bank and certified by a Responsible Officer; (b) beginning with the fiscal year ending December 31, 1998, as soon as available, but in any event within ninety (90) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time generally prepared by Borrower in the ordinary course of business. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank with the monthly financial statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date).
(c) Allow Exhibit C hereto. Bank shall have a right from time to time hereafter to audit Borrower's Accounts and appraise Collateral at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 30 days after the end of each month during each of such Borrower's fiscal years (or 45 days after end of the last month in each fiscal quarter), a company prepared balance sheet, income statement, and, on a quarterly basis only, a statement of cash flow covering such Borrower's operations during such period; and (b) as soon as available, but in any event within 90 days after the end of each of such Borrower's fiscal years, financial statements of such Borrower for each such fiscal year, annual financial projections for the following fiscal year (on audited by independent certified public accountants from a quarterly basis) "Big 5" accounting firm or such other accounting firm as approved is reasonably acceptable to Agent and certified, without any material qualifications, by Borrower's board of directorssuch accountants to have been prepared in accordance with GAAP, together with a certificate of such accountants addressed to Agent stating that such accountants do not have knowledge of the existence of any related business forecasts used Default or Event of Default. 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. Together with the above, such Borrower also shall deliver to Agent such Borrower's Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by such Borrower with the Securities and Exchange Commission, if any, as soon as the same are filed, and any other report reasonably requested by Agent relating to the financial condition of such Borrower. Each month, together with the financial statements provided pursuant to Section 6.3(a), such Borrower shall deliver to Agent a Compliance Certificate signed by its chief financial officer to the effect that: (i) all financial statements delivered or caused to be delivered to Agent hereunder have been prepared in accordance with GAAP (except, in the preparation case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the consolidated financial condition of such annual Borrower, (ii) the representations and warranties of such Borrower 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 projections; covenant in Section 7.20 is to be tested, such ------------ Borrower is in compliance at the end of such period with the applicable financial covenants contained in Section 7.20 (and demonstrating such compliance ------------ in reasonable detail), (iv) in any month in which any principal amount of Indebtedness arising under the Indenture is redeemed, a prompt report statement of any legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary the principal amount of $500,000 or moresuch Indebtedness redeemed during such month and during the term hereof; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first delivery of such audits certificate to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency Agent there does not exist any condition or event that Bank shall determine in its reasonable discretion, provided that if constitutes a Default or Event of Default (or, in the case of clauses (i), (ii), or (iii), to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action such Borrower has taken, is taking, or proposes to take with respect thereto). Poolmart shall, from time to time, not more frequently than once in any year unless an Event of Default has occurred and is continuing Bank may conduct such audits continuing, at such frequency as Bank the request of the Agent cause its independent certified public accountants to meet and confer with Agent, in its sole discretion may determine from time the presence of management of Poolmart, to timediscuss with Agent the Borrowers' financial affairs.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal yearcalendar month, annual financial projections for the following fiscal year (on a quarterly basis) as approved company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Bank and certified by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsa Responsible Officer; (ivb) 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 filed with the Securities and Exchange Commission including without limitation on Forms 10-K and 10-Q; (c) 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 Fifty Thousand Dollars ($500,000 50,000) or more; (d) as soon as available, but in any event no later than thirty (30) days prior to the beginning of Borrower’s fiscal year, an operating budget in form reasonably acceptable to Bank and approved by Borrower’s board of directors; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within thirty (b) Within twenty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (payable. Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by invoice date).
(c) Allow 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 ’s Accounts and appraise Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or such audits will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within fifty (350) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each of Borrower's fiscal quarters, a copy of the report filed by Borrower on Form 10-Q with the Securities and Exchange Commission; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's fiscal year, annual financial projections for a copy of the following fiscal year (report filed by Borrower on a quarterly basis) as approved by Borrower's board of directorsForm 10-K with the Securities and Exchange Commission, together with any related business forecasts used audited financial statements of Borrower prepared in accordance with GAAP, consistently applied, and an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank (each of the preparation of such annual "Big 4" accounting firms is acceptable), which financial projectionsstatements shall reflect no material adverse changes from the financial statements prepared by Borrower and delivered to Bank; (ivc) as soon as available, but in any event within five (5) days after 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 any other reports filed with the Securities and Exchange Commission; (d) 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 Two Hundred Fifty Thousand Dollars ($500,000 250,000) or more; and (ve) budgetsas soon as available, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
but in any case within ninety (b) Within twenty (2090) days after the first day of each fiscal year, Borrower's business plan, including operating budget, for such year. Borrower shall deliver to Bank with the quarterly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto. Within twenty-five (25) days of the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of Borrower's accounts receivable payable and accounts payable receivable, in each case in form and substance reasonably satisfactory to Bank and certified by a Responsible Officer. Bank agrees to adjust Borrowing Base within ten (10) days of receipt of Borrowing Base Certificate and further agrees to advise Borrower of any changes to the Certificate submitted by invoice date).
Borrower. Borrower shall deliver to Bank as soon as available, but in any event within thirty (c30) Allow Bank to audit days after the end of each month, a company prepared balance sheet, income statement and cash flow statement covering Borrower's Collateral at Borrower's expenseconsolidated domestic operations during such period, with the first in a form and certified by an Officer of such audits to be completed no later than March 2, 2006, and with results Borrower reasonably acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall maintain a standard system of accounting in accordance with GAAP. Borrower shall deliver to Bank: (ia) as soon as within five (5) days upon becoming available, but no later than the earlier to occur of three in any event within fifty (350) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each Borrower's fiscal quarter, the report on Form 10-Q filed or required to be filed with the Securities and Exchange Commission and a Compliance Certificate signed by a Responsible Officer in form and substance acceptable to Bank; (b) within five (5) days upon becoming available, but in any event within ninety-five (95) days after the end of Borrower's fiscal year, annual financial projections for the following fiscal year (report on a quarterly basis) as approved by Borrower's board of directors, together Form 10-K filed or required to be filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (ivc) 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 Five Hundred Thousand Dollars ($500,000 500,000) or more; (d) promptly upon their becoming available (and in any event within five (5) Business Days thereafter), copies of (i) all financial statements, reports, notices, proxy statements and other information that Borrower sends or generally makes available to any class of its security holders or that any Subsidiary sends or generally makes available to any class of its security holders, (ii) all regular and periodic reports and all registration statements, forms and prospectuses that Borrower or any Subsidiary files with any securities exchange or with the Securities and Exchange Commission, to the extent that such documents are not already required to be delivered under clauses (a) and (vb) of this Section 6.3, and (iii) all press releases and other statements that Borrower or any Subsidiary makes generally available to the public concerning material developments in the business of Borrower or any Subsidiary; (e) within fifteen (15) days after the end of each calendar month after the Closing Date during which the Borrowing Base formula is in effect, (i) a detailed aged trial balance of the Accounts, in form and substance satisfactory to Bank, in its sole discretion, including, without limitation, the names and addresses of all Account Debtors, (ii) a detailed accounts payable aging, in form and substance satisfactory to Bank, in its sole discretion, (iii) an inventory report, in form and substance satisfactory to Bank, in its sole discretion, and (iv) a backlog report, in form and substance satisfactory to Bank, in its sole discretion; and (f) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, Bank shall have a right from time to time hereafter to conduct a field exam and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral Accounts and Inventory at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretionno more often than once every six (6) months, provided that if a Default or unless an Event of Default has occurred and is continuing continuing, in which case Bank may conduct such audits audits, at such frequency Borrower's expense, as frequently as Bank in its sole discretion deems appropriate. Bank may determine from time destroy or otherwise dispose of any documents delivered to timeBank six (6) months after Bank's receipt thereof.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within one-hundred twenty (120) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) [reserved]; (d) 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 ($500,000 100,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10KWithin 30 days after the last day of each month, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of the Compliance Certificates required by Section 6.2(a)(ii).
EXHIBIT C hereto, an inventory report in form acceptable to Bank, together with aged listings of accounts receivable. Within thirty (b) Within twenty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank with the monthly financial statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date).
(c) Allow EXHIBIT D hereto. Bank shall have a right from time to time hereafter to audit Borrower's Collateral Accounts and Inventory at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every 12 months unless an Event of Default has occurred and is continuing Bank may conduct continuing, with the understanding that the first of such audits at and an audit of Inventory shall be conducted prior to the making of the first Advance under the Committed Revolving Line. Further, prior to September 30, 2000, an audit with regard to accounts receivable and accounts payable shall be conducted and the results of such frequency as audit are to be acceptable to the Bank in its sole discretion may determine from time to timereasonable discretion.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet and income statement 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 150 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 opinion which is either unqualified, qualified only for going concern so long as Borrower’s investors provide additional equity as needed or otherwise consented to in writing by Bank on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; (iii) annual financial projections for the following fiscal year (on a quarterly basis) as budget approved by Borrower's board ’s Board of directors, together with any related business forecasts used in Directors as soon as available but not later than 60 days after the preparation beginning of such annual financial projectionsthe applicable fiscal year; (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 10-K and 10-Q filed with the Securities and Exchange Commission; (v) promptly upon receipt of notice thereof, 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 $500,000 250,000 or more; (vi) promptly upon receipt, each management letter prepared by Borrower’s independent certified public accounting firm regarding Borrower’s management control systems, and (vvii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably requests. Borrower's 10Krequest from time to time.
(a) Within 10 days after both the 1st day and the 15th day of each month, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of the Compliance Certificates required Exhibit D hereto, together with aged listings by Section 6.2(a)(ii)invoice date of accounts receivable and accounts payable and an updated schedule of deferred revenue.
(b) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank with the monthly financial statements a duly completed Borrowing Base Compliance Certificate certified as of the last day of the applicable month and signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date)Exhibit E hereto.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expenseAs soon as possible and in any event within 5 calendar days after becoming aware of the occurrence or existence of an Event of Default hereunder, with a written statement of a Responsible Officer setting forth details of the first Event of such audits to be completed no later than March 2, 2006Default, and the action which Borrower has taken or proposes to take with results acceptable respect thereto.
(d) Not including the initial audit required by Section 3.2(d) hereof, Bank (through any of its officers, employees, or agents) shall have the right, upon reasonable prior notice (but in no instance less than 5 days prior written notice), from time to Bank. Such audits shall be conducted at a frequency that Bank shall determine time during Borrower’s usual business hours but no more than once in its reasonable discretion, provided that if a Default or any 6 month period (unless an Event of Default has occurred and is continuing continuing), to inspect Borrower’s Books and to make copies thereof and to check, test, inspect, audit and appraise the Collateral at Borrower’s expense in order to verify Borrower’s financial condition or the amount, condition of, or any other matter relating to, the Collateral.
10. Borrower may deliver to Bank may conduct such audits at such frequency as on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files, provided that Bank in its sole discretion may determine from time good faith believes that the files were delivered by a Responsible Officer. Borrower shall include a submission date on any certificates and reports to timebe delivered electronically.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within 30 days (3) days after filing with the Securities Exchange Commission or 45 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 quarter end period, the month during each of Borrower's 10Kfiscal years,
(i) a consolidated balance sheet, 10Qincome statement, and 8K reports, as applicable; statement of cash flow covering Borrower's and its Subsidiaries' operations during such period,
(ii) a Compliance Certificate together certificate signed by the chief financial officer or other Authorized Person of Borrower to the effect that:
A. the financial statements delivered hereunder have been prepared in accordance with delivery GAAP and fairly present in all material respects the financial condition of Borrower and its Subsidiaries,
B. the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the 10K date of such certificate, as though made on and 10Q reports; as of such date (iiiexcept to the extent that such representations and warranties relate solely to an earlier date), and
C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrower has taken, is taking, or proposes to take with respect thereto), and
(b) as soon as available, but in any event within 45 90 days after the end of each of Borrower's fiscal years, financial statements of Borrower and its Subsidiaries for each such fiscal year, annual financial projections for audited by independent certified public accountants reasonably acceptable to Lender and certified, without any qualification as to the following fiscal year (on a quarterly basis) as approved scope of the audit, by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed accountants to have been delivered on the date on which Borrower posts prepared in accordance with GAAP (such report or provides audited financial statements to include a link thereto on Borrower's or another website on the Internet; providedbalance sheet, that Borrower shall provide paper copies income statement, and statement of cash flow and, if prepared, such accountants' letter to Bank of the Compliance Certificates required by Section 6.2(a)(iimanagement).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).;
(c) Allow Bank if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC, and
(iii) any other information that is provided by Borrower to audit its shareholders generally;
(d) if and when filed by Borrower and as reasonably requested by Lender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) Borrower conducts business or is required to pay any such excise tax, (ii) where Borrower's Collateral at failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's expense, with the first failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change;
(e) promptly after Borrower has actual knowledge of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency any event or condition that Bank shall determine in its reasonable discretion, provided that if constitutes a Default or an Event of Default has occurred Default, notice thereof and is continuing Bank may conduct such audits at such frequency as Bank in a statement of the curative action that Borrower proposes to take with respect thereto; and
(f) upon request of Lender, any other report reasonably requested relating to the financial condition of Borrower and the Guarantors. Borrower agrees that the financial statements referred to above shall mean the consolidated financial statements of Borrower and its sole discretion may determine from time to timeSubsidiaries.
Appears in 1 contract
Sources: Loan and Security Agreement (New World Restaurant Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 30 days after the end of each month during each of Borrower's fiscal years, a company prepared balance sheet, income statement, and statement of cash flow covering Borrower's operations during such period; and (b) as soon as available, but in any event within 90 days after the end of each of Borrower's fiscal years, financial statements of Borrower for each such fiscal year, annual audited 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. Such audited financial projections for 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 parent company of one or more Subsidiaries, or Affiliates, or is a Subsidiary or Affiliate of another company, then, in addition to the following fiscal year (financial statements referred to above, Borrower agrees to deliver financial statements prepared on a quarterly consolidating basis so as to present Borrower and each such related entity separately, and on a consolidated basis) as approved by . Together with the above, Borrower also shall deliver to Agent, with copies to each Lender, Borrower's board Form 10-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 is provided by Borrower to its shareholders, and any other report reasonably requested by the Lender Group relating to the financial condition of directorsBorrower. Each month, together with any related business forecasts used in the preparation of such annual financial projections; 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: (ivi) a prompt report of any legal actions pending all financial statements delivered or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required caused to be delivered pursuant to Section 6.2(a)(i) shall be deemed to any one or more members of the Lender Group hereunder have been delivered 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 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 Borrower posts a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating in reasonable detail compliance at the end of such report or provides a link thereto on Borrower's or another website period with the applicable financial covenants contained in Section 7.20, and (iv) on the Internet; provideddate of delivery of such certificate to Agent there does not exist any condition or event that constitutes a Potential Default or Event of Default (or, that in the case of clauses (i), (ii), or (iii), to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrower has taken, is taking, or proposes to take with respect thereto). Borrower shall provide paper copies have issued written instructions to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicableits 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 Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerAgent, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first copies of such audits to be completed no later than March 2Borrower's financial statements, 2006papers related thereto, and with results acceptable other accounting records of any nature in their possession, and to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred disclose to Agent any information they may have regarding Borrower's business affairs and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timefinancial conditions.
Appears in 1 contract
Sources: Loan and Security Agreement (Aureal Semiconductor Inc)
Financial Statements, Reports, Certificates. (a) Deliver to BankAgent: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 30 days after the end of each month during each of such Borrower’s fiscal years (or 45 days after end of the last month in each fiscal quarter), a company prepared balance sheet, income statement, and, on a quarterly basis only, a statement of cash flow covering such Borrower’s operations during such period; and (ii) as soon as available, but in any event within 90 days after the end of each of such Borrower’s fiscal years, financial statements of such Borrower for each such fiscal year, annual financial projections for the following fiscal year (on audited by independent certified public accountants from a quarterly basis) “Big 4” accounting firm or such other accounting firm as approved is reasonably acceptable to Agent and certified, without any material qualifications, by Borrower's board of directorssuch accountants to have been prepared in accordance with GAAP, together with a certificate of such accountants addressed to Agent stating that such accountants do not have knowledge of the existence of any related business forecasts used Default or Event of Default. 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.
(b) Together with the above, such Borrower also shall deliver to Agent such Borrower’s Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by such Borrower with the Securities and Exchange Commission, if any, as soon as the same are filed, and any other report reasonably requested by Agent relating to the financial condition of such Borrower.
(c) Each month, together with the financial statements provided pursuant to Section 6.3(a), such Borrower shall deliver to Agent a Compliance Certificate signed by its chief financial officer to the effect that: (i) all financial statements delivered or caused to be delivered to Agent hereunder have been prepared in accordance with GAAP (except, in the preparation case of unaudited financial statements, for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the consolidated financial condition of such annual Borrower, (ii) the representations and warranties of such Borrower 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 projections; covenant in Section 7.20 is to be tested, such Borrower is in compliance at the end of such period with the applicable financial covenants contained in Section 7.20 (and demonstrating such compliance in reasonable detail), (iv) in any month in which any principal amount of Indebtedness arising under the Indenture is redeemed, a prompt report statement of any legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary the principal amount of $500,000 or moresuch Indebtedness redeemed during such month and during the term hereof; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on of delivery of such certificate to Agent there does not exist any condition or event that constitutes a Default or Event of Default (or, in the case of clauses (i), (ii), or (iii), to the extent of any noncompliance, describing such non-compliance as to which he or she may have knowledge and what action such Borrower posts such report has taken, is taking, or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies proposes to Bank of the Compliance Certificates required by Section 6.2(a)(iitake with respect thereto).
(bd) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablePoolmart shall, deliver from time to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officertime, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later not more frequently than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine once in its reasonable discretion, provided that if a Default or any year unless an Event of Default has occurred and is continuing Bank may conduct such audits continuing, at such frequency as Bank the request of the Agent cause its independent certified public accountants to meet and confer with Agent, in its sole discretion may determine from time the presence of management of Poolmart, to timediscuss with Agent the Borrowers’ financial affairs.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within twenty five (325) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery signed by a Responsible Officer in substantially the form of Exhibit D hereto including a comparison of the 10K and 10Q reportsactual consolidated cash balance at the end of the previous month to the minimum required cash balance; (iiib) as soon as available, but in any event within 45 forty five (45) days after the end of each fiscal quarter, a consolidated balance sheet, income, and cash flow statements covering Borrower'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 acceptable to Lender, along with a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto; (e) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Lender; (ivd) 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, if applicable, all reports on Forms 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission; (e) 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (vf) such budgets, sales projections, operating plans or plans, other financial information Bank reasonably requests. including information related to the verification of Borrower's 10K, 10Q, and 8K reports required Accounts as Lender may reasonably request from time 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 link thereto on Borrower's or another website on the Internettime; provided, however, that Borrower shall not be required to provide paper copies the financial statements referred to Bank of in the Compliance Certificates required by Section 6.2(a)(ii).
preceding subsections (b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank for any period with respect to audit Borrower's Collateral at Borrower's expensewhich it has timely filed its reports on Form 10-Q or 10-K, as applicable, and provided copies of such reports in accordance with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timepreceding subsection (d).
Appears in 1 contract
Sources: Convertible Loan and Security Agreement (Lc Capital Master Fund LTD)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any case within forty-five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal quarter ending March 31, June 30 or September 30, (i) a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C attached hereto, and (ii) a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit D attached hereto;
(b) as soon as available, but in any event within ninety (90) days after the last day of each fiscal year, (i) a Compliance Certificate in substantially the form of Exhibit C attached hereto and (ii) a Borrowing Base Certificate in substantially the form of Exhibit D attached hereto each signed by a Responsible Officer;
(c) Within five (5) days of filing, copies of all periodic and other reports, proxy statements, and other materials, including but not limited to audited annual financial projections for statements and quarterly financial statements included in Borrower’s Form 10-K and Form 10-Q, as applicable, filed by Borrower with the following fiscal year (on a quarterly basis) as approved by Borrower's board SEC, any Governmental Authority succeeding to any or all of directors, together with any related business forecasts used in the preparation functions of such annual financial projections; (iv) 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 $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requeststhe SEC. Borrower's 10K, 10Q, and 8K reports Documents required to be delivered pursuant to Section 6.2(a)(ithe 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 report documents, or provides a link thereto thereto, on Borrower's or another ’s website on the InternetInternet at Borrower’s website address; provided, that Borrower shall provide paper copies to provided Bank receives notice of the Compliance Certificates required by Section 6.2(a)(ii).such posting;
(bd) Within twenty receipt of notice thereof, a report of any legal actions pending or threatened against Borrower that is reasonably likely to result in damages or costs to Borrower of Two Hundred Fifty Thousand Dollars (20$250,000) days after the last day or more;
(e) prompt notice of each month when the Borrowing Base Formula regarding Advance is applicable, deliver Borrower incurring any Additional Convertible Notes Indebtedness and Unsecured Longer-Term Indebtedness;
(f) prompt notice of any failure to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings comply with the portfolio diversification and similar requirements set forth in the Investment Company Act applicable to BDCs; (ii) comply with the portfolio diversification and similar requirements set forth in the IRC applicable to RICs; (iii) comply with the asset coverage requirements applicable to BDCs under the Investment Company Act (as determined pursuant to the Investment Company Act and any orders of accounts receivable the SEC issued to Borrower thereunder); and accounts payable (by invoice date).iv) otherwise comply in any material respect with the requirements of the Investment Company Act as they relate to BDCs or the IRC as they relate to RICs, including without limitation any notice of such noncompliance from the SEC; and
(cg) Allow Bank to audit Borrower's Collateral at Borrower's expensebudgets, with the first of operating plans or such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing other financial information as Bank may conduct such audits at such frequency as Bank in its sole discretion may determine reasonably request from time to time.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: :
(i) as soon as available, but no later than the earlier to occur of three five (35) days Business Days after filing with the Securities Exchange Commission or 45 days after each quarter end period(the “SEC”), the Borrower's SFE’s 10K, 10Q, 10Q and 8K reports, as applicable; ,
(ii) together with SFE’s 10K filing, its consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm,
(iii) a Compliance Certificate together (delivered with delivery of the 10K and 10Q reports; reports (iiias applicable));
(iv) within 45 forty-five (45) days after the end of each fiscal yearyear and upon any material amendment, annual financial cash projections for the following fiscal year (on a quarterly basis) as approved by Borrower's presented to SFE’s board of directors, together with any related business forecasts used in directors (the preparation of such annual financial projections; “SFE Board”);
(ivv) 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 Five Hundred Thousand Dollars ($500,000 500,000.00) or more; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's ’s 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts files such report with the SEC or provides a link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty With each Advance request (20) days after and if any Advance has been taken and has not been repaid by Borrower in full, with the last day filing of each month when the Borrowing Base Formula regarding Advance is applicableSFE’s 10K and 10Q reports), deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Within forty-five (45) days after the last day of each fiscal quarter, (i) quarterly cash flow projection reports, in form and substance acceptable to Bank, in its reasonable discretion; and (ii) quarterly Net Asset Value Reports.
(d) Allow Bank to audit the location and the composition of Borrower's Collateral ’s Collateral, at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing continuing; provided, however, Bank may conduct agrees that such audits at such frequency as Bank in its sole discretion may determine from time to timewill only be conducted while there are outstanding Advances under the Revolving Line.
Appears in 1 contract
Sources: Loan and Security Agreement (Safeguard Scientifics Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver ------------------------------------------- to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within forty-five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company-prepared balance sheet and income statement covering Borrower's and Guarantor's consolidated operations during such period, in a form certified by an officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's and Guarantor's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower and Guarantor prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) promptly upon receipt of notice thereof, 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officerborrowing base certificate in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and --------- accounts payable for the immediately preceding month. Within forty-five (by invoice date).
(c45) Allow days after the last day of each month, Borrower shall deliver to Bank with the monthly financial statements a compliance certificate in substantially the form of Exhibit D hereto. --------- Bank shall have a right to audit Borrower's Collateral Accounts and Inventory at Borrower's expensereasonable expense prior to the initial Revolving Advance, with the first of and from time to time thereafter, provided that, such audits to be completed no later shall not occur more often than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver ------------------------------------------- to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each quarter, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (b) as soon as available, but in any event within ninety (90) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably accepted to the preparation of such annual financial projectionsBank (▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be deemed to be acceptable to the Bank); (ivc) promptly upon receipt of notice thereof, a prompt 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 $500,000 or morea Material Adverse Effect; and (vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within thirty (b) Within twenty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of EXHIBIT C hereto, together with (i) aged listings of accounts receivable and accounts payable --------- Accounts. Within thirty (30) days after the last day of each month, Borrower shall deliver to Bank a Compliance Certificate signed by invoice date).
(c) Allow 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 Collateral Accounts at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three five (35) days after filing with the Securities Exchange Commission or 45 days after each quarter end periodCommission, the Borrower's ’s 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 as soon as available, but no later than forty (40) days after the end last day of each fiscal quarter (except that with respect to the quarter ending December 31 each year, annual financial projections for within seventy-five (75) days), a company prepared consolidating balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations during the following fiscal year (on period certified by a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used Responsible Officer and in the preparation of such annual financial projectionsa form acceptable to Bank; (iv) a prompt 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 $500,000 500,000.00 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's ’s 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty If Advances under the Revolving Line (20including any Credit Extensions pursuant to the provisions of Sections 2.1.2, 2.1.3 and 2.1.4) exceed $3,000,000.00 or an Event of Default has occurred and is continuing, then within thirty (30) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date)) and (ii) a list of all Deferred Revenue by client. The requirement to provide monthly a Borrowing Base Certificate, aged listings of accounts receivable and accounts payable and a list of all Deferred Revenue will cease (x) if the monthly reporting requirement was triggered by an Event of Default and the Event of Default is cured or waived in writing, or (y) if the monthly reporting requirement was triggered by Advances under the Revolving Line that exceeded $3,000,000.00 and the outstanding Advances are later reduced to be equal to or less than $3,000,000.00.
(c) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency continuing.
(d) The Compliance Certificate attached as Bank Exhibit C-1 shall be used until the quarterly period ending as of September 30, 2007, after which time the Compliance Certificate attached as Exhibit C-2 shall be used in its sole discretion may determine from time to timelieu of the Compliance Certificate attached as Exhibit C-1.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonable acceptable to Bank; (ivc) promptly upon receipt of notice thereof, a prompt 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 ($500,000 100,000.00) or more; and (vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within thirty (b) Within twenty (2030) days after the last day of each month when with respect to which either (i) Obligations under the Borrowing Base Formula regarding Advance is applicableCommitted Revolving Line are outstanding, or (ii) Advances were made or Letters of Credit were issued, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of EXHIBIT C hereto, together with (i) aged listings of accounts receivable and accounts payable receivable. 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 invoice date).
(c) Allow a Responsible Officer in substantially the form of EXHIBIT D hereto. Bank shall have the right from time to time hereafter to audit Borrower's Collateral Accounts at Borrower's expense, with the first of provided that such audits to will be completed conducted: (a) no later more often than March 2, 2006every twelve (12) months, and with results acceptable to Bank(b) only when either (i) Obligations under the Committed Revolving Credit Line are outstanding or (ii) Advances were made or Letters of Credit were issued during the preceding twelve (12) month period. Such audits shall be conducted at a frequency that Notwithstanding the foregoing, the Bank shall determine in its reasonable discretion, provided that if a Default or have the right to audit Borrower's Accounts at Borrower's expense at any time after the occurrence of an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeDefault.
Appears in 1 contract
Sources: Loan and Security Agreement (Speechworks International Inc)
Financial Statements, Reports, Certificates. (a) Deliver to BankAgent: (i) as soon as available, but no later than the earlier to occur of three forty-five (345) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, a company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during the Borrower's 10K, 10Q, period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Agent; (ii) a Compliance Certificate as soon as available, but no later than one hundred fifty (150) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm acceptable to Agent in its reasonable discretion; (iii) within 45 five (5) days after the end of each fiscal yeardelivery, annual copies of all financial projections for the following fiscal year (on a quarterly basis) as approved by statements and reports made available to Borrower's board ’s security holders or to any holders of directors, together with any related business forecasts used in the preparation of such annual financial projectionsSubordinated Debt; (iv) a prompt report within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower with the SEC, any legal actions pending Governmental Authority succeeding to any or threatened against Borrower all of the functions of the SEC or with any Subsidiary that could result in damages national securities exchange, or costs distributed to Borrower or any Subsidiary of $500,000 or more; and its shareholders, as the case may be (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports documents required to be delivered pursuant to Section 6.2(a)(ithe 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 report documents, or provides a link thereto thereto, on Borrower's or another ’s website on the Internetinternet at Borrower’s website address); provided(v) contemporaneously with the submission of such filings or the delivery of such reports, that Borrower shall provide paper copies of (A) the monthly reports delivered to Bank 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, to the knowledge of the Compliance Certificates required Borrower, threatened against Borrower or any of its Subsidiaries that would reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of One Hundred Thousand Dollars ($100,000.00) or more; and (vii) budgets, sales projections, operating plans and other financial information reasonably requested by Section 6.2(a)(ii)Agent.
(b) Within twenty forty-five (2045) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank Agent with the monthly financial statements, a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, Officer setting forth calculations showing compliance with (i) aged listings of accounts receivable and accounts payable (by invoice date)the financial covenants set forth in this Agreement.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, Commencing with the first month ending July 31, 2011, within forty-five (45) days after the last day of each month, deliver to Agent a summary of Borrower’s Unrestricted Cash in form and detail reasonably acceptable to Agent (such audits period to be completed no later than March 2the sixty (60) days for the summary required to be delivered to Agent in respect of the month ending July 31, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time2011).
Appears in 1 contract
Sources: Loan and Security Agreement (GAIN Capital Holdings, Inc.)
Financial Statements, Reports, Certificates. Deliver to Administrative Agent with copies to each Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month during each of Borrower's fiscal years, a company prepared balance sheet, income statement, and statement of cash flow covering the operations of the Consolidated Group on a consolidated and consolidating basis during such period; and (b) as soon as available, but in any event within one hundred and five (105) days after the end of each of Borrower's fiscal years, consolidated and consolidating financial statements of the Consolidated Group for each such fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved audited by Borrower's board of directorsindependent certified public accountants reasonably acceptable to Administrative Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP, together with any related business forecasts used in the preparation a certificate of such annual financial projections; (iv) a prompt report accountants addressed to Administrative Agent stating that such accountants do not have knowledge of the existence of any legal actions pending Default or threatened against Event of Default. 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. In addition to the above, the Borrower also shall deliver to Administrative Agent, with a copy to each Lender, Borrower's Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower with the Securities and Exchange Commission, if any, as soon as the same are filed, or any Subsidiary other information that could result in damages or costs is provided by Borrower to Borrower or any Subsidiary of $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Qits shareholders, and 8K reports required any other report reasonably requested by Administrative Agent relating to the financial condition of the Companies. Each month, together with the financial statements provided pursuant to Section 6.3(a), Borrower shall deliver to Administrative Agent, with a copy to each Lender, a certificate signed by the chief financial officer or treasurer of each Company to the effect that: (i) all financial statements delivered or caused to be delivered pursuant to Section 6.2(a)(i) shall be deemed to Administrative Agent hereunder have been delivered 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 the Consolidated Group, (ii) the representations and warranties of the Companies 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 or are expressly made as of an earlier date), (iii) for each month that also is the date on which Borrower posts a financial covenant in Section 7.20 or Section 7.21 is to be tested, a Compliance Certificate demonstrating in reasonable detail compliance at the end of such report period with the applicable financial covenants contained in Section 7.20 or provides a link thereto on Borrower's or another website Section 7.21, and (iv) on the Internet; provideddate of delivery of such certificate to Administrative Agent there does not exist any condition or event that constitutes a Default or Event of Default (or, that in the case of clauses (i), (ii), or (iii), to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the Companies have taken, are taking, or propose to take with respect thereto). At least five (5) days prior to the Closing Date, Borrower shall provide paper copies have issued written instructions to Bank of its independent certified public accountants authorizing them to communicate with Administrative Agent and to release to Administrative Agent whatever financial information concerning the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, Companies that Administrative Agent may reasonably request. Each Company hereby irrevocably authorizes and directs all auditors and accountants to deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerAdministrative Agent, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first copies of such audits to be completed no later than March 2Company's financial statements, 2006papers related thereto, and with results acceptable other accounting records of any nature in their possession, and to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred disclose to Administrative Agent any information they may have regarding such Company's business affairs and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timefinancial condition.
Appears in 1 contract
Sources: Loan and Security Agreement (Icf Kaiser International Inc)
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three forty-five (345) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodquarter, a company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during the Borrower's 10K, 10Q, period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than ninety (90) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an opinion on the 10K and 10Q reportsfinancial statements from a nationally-recognized, independent, certified public accounting firm; (iii) within 45 days after five (5) Business Days of filing, copies of all reports on Forms 10-K and 10-Q filed with the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) 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 Two Million Dollars ($500,000 2,000,000) or more; (v) as soon as available, but no later than ninety (90) days after the end of each fiscal year, a one (1) year (prepared on a quarterly basis) financial projections of Borrower on a consolidated basis, including a balance sheet and 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 (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requestsrequested by Bank. Borrower's 10K, 10Q, and 8K reports Documents required to be delivered pursuant to this Section 6.2(a)(i6.2(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 report documents, or provides a link thereto on the Borrower's or another ’s website on the InternetInternet at Borrower’s website address of ▇▇▇.▇▇▇▇▇▇▇.▇▇▇ (or such other website address as Borrower may provide to Bank in writing from time to time); providedprovided that: (x) to the extent Bank is otherwise unable to receive any such electronically delivered documents, that 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 (y) Borrower shall notify Bank (by telecopier or electronic mail) of the posting of any such documents or provide paper copies to Bank by electronic mail electronic versions (i.e., soft copies) of the Compliance Certificates required by Section 6.2(a)(ii)such documents.
(b) Within twenty Borrower shall deliver to Bank, as soon as available, but no later than forty-five (2045) days after the last day of each month when and together with the Borrowing Base Formula regarding Advance is applicableannual financial statements set forth in clause (a)(ii) above, deliver to Bank a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in the form of accounts receivable and accounts payable (by invoice date).Exhibit D.
(c) Allow Except as otherwise provided herein, once per calendar year, Borrower shall, during normal business hours, from time to time upon five (5) Business Days’ prior notice: (i) provide Bank and any of its officers, employees and agents access to audit Borrower's Collateral at Borrower's expenseits properties, with facilities, advisors, officers and employees of Borrower and to the first of such audits to be completed no later than March 2Collateral, 2006(ii) permit Bank, and with results acceptable any of its officers, employees and agents, to inspect, audit and make extracts from Borrower’s books and records, and (iii) permit Bank, and its officers, employees and agents, to inspect, review, evaluate and make test verifications and counts of the Domestic Accounts, Inventory and other Collateral of Borrower. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a So long as no Default or Event of Default shall have occurred and be continuing, Borrower shall reimburse Bank for not more than one (1) inspection in any calendar year in an amount not to exceed $10,000. If an Event of Default has occurred and is continuing continuing, Borrower shall provide access to (x) its properties, facilities, advisors, officers and employees of Borrower and to the Collateral at all times and without advance notice, and (y) its suppliers and customers upon request from Bank. Borrower shall promptly make available to Bank and its counsel originals or copies of all books and records that Bank may reasonably request.
(d) Borrower shall permit Bank to conduct such its initial field examination within ninety (90) days after the Effective Date. In addition to any audits or inspections conducted by Bank pursuant to the terms of clause (c) above, Borrower shall permit Bank to conduct annual field examinations during the term of this Agreement; provided, however, that Bank shall not be entitled to reimbursement for Bank Expenses in excess of $5,000 per examination; provided, further that at such frequency time as Covenant Level 2 is in effect and so long as no Event of Default has occurred and is continuing, Bank shall no longer require a field examination of Borrower on an annual basis.
(e) If, at any time prior to Covenant ▇▇▇▇▇ ▇, the amount of unrestricted cash and Cash Equivalents (net of Obligations and any STT Debt plus any interest accrued thereon) maintained by Borrower and Guarantor with Bank, any Affiliate of Bank, or any other financial institution located in the United States is less than $15,000,000 in the aggregate, then Borrower shall deliver to Bank, within thirty (30) days after the last day of each month, aged listings (by invoice date) of accounts receivable and of accounts payable and a listing of Eligible Domestic Accounts, certified by a Responsible Officer.
(f) Borrower shall provide written notice to Bank (i) such notice to be delivered at the end of the fiscal quarter in which the following such relocation or additions occur, if Borrower relocates its sole discretion may determine from time chief executive office, or adds any new offices or business locations, including warehouses (unless such new offices or business locations contain less than $200,000 in Borrower’s assets or property), (ii) such notice to timebe delivered at least thirty (30) days prior to the effective date of the following changes, if Borrower changes (1) its jurisdiction of organization, (2) its organizational structure or type, (3) its legal name, or (4) the organizational number (if any) assigned by its jurisdiction of organization.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 30 days after the end of each calendar month, a company prepared consolidated balance sheet and income statement covering Borrower’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer;
(b) as soon as available, but in any event within 120 days after the end of Borrower’s fiscal year, annual audited consolidated financial projections for the following fiscal year statements of Borrower prepared in accordance with GAAP, consistently applied (on a quarterly basis) as approved by “Borrower's board of directors’s Annual Financial Statements”), 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 an independent certified public accounting firm reasonably acceptable to Bank (“CPA Firm”); provided, however, Borrower may deliver to Bank an opinion that is qualified by a CPA Firm for its Annual Financial Statements for the 2011 fiscal year so long as such qualification is solely the result of a “going concern” related to insufficient access to capital and/or negative profits and Ex-Im grants a waiver allowing such statements to be qualified;
(c) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any related business forecasts used in holders of Subordinated Debt and all reports on Forms 10-K and 10-Q filed with the preparation Securities and Exchange Commission;
(d) promptly upon receipt of such annual financial projections; (iv) notice thereof, a prompt 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 $500,000 250,000 or more; ;
(e) promptly upon receipt, each management letter prepared by Borrower’s independent certified public accounting firm regarding Borrower’s management control systems;
(f) as soon as available, but in any event not later than January 31 of each calendar year, Borrower’s financial and business projections and budget for that calendar year, with evidence of approval thereof by Borrower’s board of directors;
(vg) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably requests. request from time to time; and
(h) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower's 10K, 10Qin 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 specified in Exhibits A, B, and 8K reports required to be C of any Intellectual Property Security Agreement 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)Borrower in connection with this Agreement.
(bi) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit D hereto, together with (i) aged listings by invoice date of accounts receivable and accounts payable (by invoice date)payable.
(cj) Allow Within 30 days after the last day of each month, with the monthly financial statements a Compliance Certificate certified as of the last day of the applicable month and signed by a Responsible Officer in substantially the form of Exhibit E hereto.
(k) As soon as practicable and in any event within two (2) Business Days after becoming aware of the occurrence or existence of an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which Borrower has taken or proposes to take with respect thereto. Bank shall have a right from time to time hereafter to audit Borrower's ’s Accounts and appraise the Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or (x) such audits will be conducted no more often than every 6 months unless an Event of Default has occurred and is continuing continuing, and (y) Borrower’s liability for the expenses incurred for any such audit under this provision or under Section 6.9(f) shall not exceed $7,500.00 per audit. Borrower may deliver to Bank may conduct such audits at such frequency as on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files, provided that Bank in its sole discretion may determine from time good faith believes that the files were delivered by a Responsible Officer. If Borrower delivers this information electronically, it shall also deliver to timeBank by U.S. Mail, reputable overnight courier service, hand delivery, facsimile or .pdf file within five (5) Business Days of submission of the unsigned electronic copy the certification of monthly financial statements, the intellectual property report, the Borrowing Base Certificate and the Compliance Certificate, each bearing the physical signature of the Responsible Officer.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within forty-five (345) days after the end of each fiscal quarter, a company prepared consolidated and consolidating balance sheet, income statement, cash flow statement and recurring revenue report 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 ninety (90) 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 opinion which is unqualified (including no going concern comment or qualification) or otherwise consented to in writing by Bank 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 10-K and 10-Q filed with the Securities and Exchange Commission within five (5) days of filing with the Securities and Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicableCommission; (iiiv) promptly upon receipt of notice thereof, a Compliance Certificate together with delivery report of the 10K and 10Q reportsany legal actions pending or threatened against any Loan Party or any Subsidiary that could reasonably be expected to result in damages or costs to such Loan Party or such Subsidiary of Five Hundred Thousand Dollars ($500,000.00) or more or any other matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; (iiiv) within 45 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 sixty (60) days after the end of each fiscal year, annual Borrower’s financial and business projections for the following fiscal year and budget (on a quarterly basis, including income statements, balance sheets and cash flow statements, by quarter) as approved for the immediately following year, with evidence of approval thereof by Borrower's board ’s Board of directorsDirectors, together and contemporaneously with delivery or approval by Borrower’s Board of Directors, any related business forecasts used in the preparation of such annual financial projectionsupdates or changes thereto; (ivvii) 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 $500,000 or more; and (v) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably requests. Borrower's 10Krequest from time to time, 10Q(viii) 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, (ix) prompt notice of the creation or acquisition of any Subsidiary, and 8K reports required to (x) within five (5) Business 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 delivered pursuant to Section 6.2(a)(i) shall be deemed expected to have been delivered a material effect on any of the governmental approvals or otherwise on the date on which operations of Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank any of the Compliance Certificates required by Section 6.2(a)(ii)its Subsidiaries.
(b) Within twenty forty-five (2045) days after the last day of each month when quarter, deliver to Bank aged listings by invoice date of accounts receivable and accounts payable.
(c) Within forty-five (45) days after the Borrowing Base Formula regarding Advance is applicablelast day of each quarter, deliver to Bank with the quarterly financial statements a Compliance Certificate certified as of the last day of the applicable quarter and signed by a Responsible Officer in substantially the form of Exhibit D hereto.
(d) Immediately upon becoming aware of the occurrence or existence of an Event of Default hereunder, deliver to Bank a duly completed Borrowing Base Certificate signed written statement of a Responsible Officer setting forth details of the Event of Default, and the action which Borrower has taken or proposes to take with respect thereto. Borrower may deliver to Bank on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files, provided that Bank in good faith believes that the files were delivered by a Responsible Officer. If Borrower delivers this information electronically, with it shall also deliver to Bank by U.S. Mail, reputable overnight courier service, hand delivery, or .pdf file within five (i5) aged listings Business Days of accounts receivable submission of the unsigned electronic copy the certification of quarterly financial statements and accounts payable (by invoice date)the Compliance Certificate, each bearing the physical signature of the Responsible Officer.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated balance sheet, income statement and a statement of cash flow covering Borrower's 10K, 10Q, ’s consolidated operations for such month certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than one hundred eighty (180) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm acceptable to Bank in its reasonable discretion; (iii) within 45 five (5) days after the end of each fiscal yeardelivery, annual financial projections for the following fiscal year copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt; (on a quarterly basisiv) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of such annual financial projections1934, as amended, within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission or a link thereto on Borrower’s or another website on the internet; (iv) 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 its Subsidiaries of Two Hundred Fifty Thousand Dollars ($500,000 250,000.00) or more; (v) as soon as possible, but no later than ten (10) days after board-approval, and within thirty (30) days after the last day of each fiscal year, and contemporaneously with any updates thereto, board-approved projections; and (vvi) budgets, sales projections, operating plans or and other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty (20) days of the last day last day of each month, (A) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (B) monthly reconciliations of accounts receivable agings (aged by invoice date), transaction reports, Deferred Revenue report and general ledger.
(c) (i) on the first (1st) and fifteenth (15th) day of each month (during a Streamline Period, monthly, within twenty (20) days after the last day of earch month), and (ii) upon each request for a Credit Extension, a Transaction Report.
(d) Within thirty (30) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank with the monthly financial statements, a duly completed Borrowing Base Compliance Certificate signed by a Responsible OfficerOfficer setting forth calculations showing compliance with the financial covenants set forth in this Agreement. In addition to the foregoing, Borrower shall deliver such Compliance Certificate to Bank on January 15, 2013, which shall include, without limitation, calculations with (i) aged listings respect to Borrower’s compliance with Section 6.7 as of accounts receivable and accounts payable (by invoice such date).
(ce) Allow Bank to audit Borrower's ’s Collateral at Borrower's expense’s expense in a manner designed to minimize disruption to Borrower’s business; provided, however, prior to an Event of Default, Bank will provide Borrower with the first of notice prior to completing any such audits to be completed no later than March 2, 2006, and with results acceptable to Bankaudit. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than twice every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct continuing. The foregoing inspections and audits shall be at Borrower’s expense, and the charge therefor shall be Eight Hundred Fifty Dollars ($850.00) per person per day (or such audits at such frequency higher amount as Bank in its sole discretion may determine from time to timeshall represent Bank’s then-current standard charge for the same), plus reasonable out-of-pocket expenses.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as availableAgent and each Lender, but each of the financial statements, reports, certificates and other items set forth on Schedule 6.1 no later than the earlier times specified therein, (b) agree that no Loan Party nor any of its Subsidiaries (excluding Excluded Subsidiaries and Acquired Loan Parties) will have a fiscal year different from that of Borrower, (c) agree to occur maintain a system of three accounting that enables the Loan Parties to produce financial statements in accordance with GAAP, and (3d) days after filing agree to (i) in connection with the Securities Exchange Commission or 45 days after each quarter delivery of annual audited financial statements (as set forth on Schedule 6.1), use commercially reasonable efforts to provide Agent with progress reports regarding Borrower’s audited year-end period, the Borrower's 10K, 10Qfinancial statements upon Agent’s written request, and 8K reports, as applicable; (ii) permit Agent, the Lenders and their duly authorized representatives or agents to discuss such audited financials with the Auditor during regular business hours and with reasonable prior notice, provided that an employee or a Compliance Certificate together with delivery duly authorized representative or agent of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal yearapplicable Loan Party be permitted to attend such discussion, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directorsprovided further, together such discussions with any related business forecasts used Lender and Auditor shall be no more than one time per year unless an Event of Default has occurred or is continuing. Notwithstanding anything in this Section 6.1 to the preparation of such annual financial projections; (iv) contrary, a prompt report of any legal actions pending or threatened against Borrower or any Subsidiary that could result Lender may specify in damages or costs writing to Borrower that it does not wish to receive material non-public information with respect to Borrower, its Subsidiaries or any Subsidiary of $500,000 or more; and their respective securities (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Qthe “Public Side Lenders”), and 8K reports Borrower will identify those portions of the items required to be delivered pursuant to this Section 6.2(a)(i) 6.1 to Public Side Lenders and will clearly and conspicuously mark such materials “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof. By marking such items required to be delivered pursuant to this Section 6.1 as “PUBLIC,” Borrower shall be deemed to have been delivered on represented to the date on which Public Side Lender(s) that the applicable financial statement, report, certificate or other item does not contain any material nonpublic information about Borrower, its Subsidiaries or their respective securities. Financial reporting information that Borrower posts deems to contain material non-public information shall be made available to Lenders who elect, pursuant to a written notice to Borrower, to be “private side” Lenders through a data room conspicuously marked as “PRIVATE.” In the event a Lender does not elect to be a Public Side Lender or a “private side” Lender pursuant to a written notice to Borrower, such report or provides Lender shall be treated as a link thereto on Borrower's or another website on the Internet; providedPublic Side Lender by Borrower until such time, if ever, that Borrower shall provide paper copies to Bank of have received a written notice from the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of applicable Lender that such audits Lender desires to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at considered a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time“private side” Lender.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, a company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during the Borrower's 10K, 10Q, period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than one hundred twenty (120) days after the last day of Borrower’s fiscal year, or as provided for by the Securities and Exchange Commission, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of with, if available, an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections[omitted]; (iv) 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 ($500,000 100,000.00) or more; (v) prompt notice of any material change in the composition of the intellectual property, or the registration of any copyright, including any subsequent ownership right of Borrower in or to any Copyright, Patent or Trademark not shown in the IP Agreement or knowledge of an event that materially adversely affects the value of the intellectual property; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank with the monthly financial statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in the form of accounts receivable and accounts payable (by invoice date).Exhibit B.
(c) Allow Borrower will allow Bank to audit Borrower's Collateral ’s Collateral, including, but not limited to, Borrower’s Accounts and accounts receivable, at Borrower's ’s expense, with upon reasonable notice to Borrower; provided, however, prior to the first occurrence of such audits to be completed no later than March 2an Event of Default, 2006, and with results acceptable to Bank. Such audits Borrower shall be conducted at a frequency obligated to pay for not more than one (1) audit per year; provided, further, that Bank shall determine in its reasonable discretion, provided that if a Default or an no Event of Default has occurred and is continuing continuing, Bank will not require such audits unless Borrower maintains an Advances balance outstanding for thirty (30) consecutive days. After the occurrence of an Event of Default, Bank may conduct such audits audit Borrower’s Collateral, including, but not limited to, Borrower’s Accounts and accounts receivable at such frequency Borrower’s expense and at Bank’s sole and exclusive discretion and without notification and authorization from Borrower.
(d) Upon Bank’s request, provide a written report respecting any Financed Receivable, if payment of any Financed Receivable does not occur by its due date and include the reasons for the delay.
(e) Provide Bank with, as soon as available, but no later than thirty (30) days following each Reconciliation Period, an aged listing of accounts receivable and accounts payable by invoice date, in form acceptable to Bank.
(f) Provide Bank with, as soon as available, but no later than thirty (30) days following each Reconciliation Period, a Deferred Revenue report, in its sole discretion may determine from time form acceptable to timeBank.
(g) Provide Bank, no later than 60 days following the end of Borrower’s then current fiscal year, Borrower’s annual operating budget (including income statements, balance sheets and cash flow statements, by month) for Borrower’s upcoming fiscal year.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing the last day of each month, a Compliance Certificate signed by a Responsible Officer in the form of EXHIBIT D together with the Securities Exchange Commission or 45 days after each quarter end period, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) as soon as available, but no later than one hundred and twenty (120) days after the last day of Borrower's fiscal year, a Compliance Certificate signed by a Responsible Officer in the form of EXHIBIT D, together with delivery of audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 days after in the end of each fiscal year, annual financial projections for event that the following fiscal year (on a quarterly basis) as approved by Borrower's board stock becomes publicly held, within five (5) days of directorsfiling, together copies of all statements, reports and notices made available to Borrower's security holders or to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) a prompt report of any legal actions pending or threatened against Borrower or any Subsidiary that could would be reasonably likely to result in damages or costs to Borrower or any Subsidiary of Two Hundred Fifty Thousand Dollars ($500,000 250,000.00) or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablein which Advances were outstanding, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit audit, prior to an Event of Default during normal business hours and upon Bank's reasonable advance notice to Borrower, Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing. Notwithstanding the foregoing, the initial audit shall occur before any Credit Extensions are advanced.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within twenty (320) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each calendar month, a company prepared monthly and year to date consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer (with a comparison to budget);
(b) as soon as available, but in any event within thirty (30) days prior to each fiscal yearyear end, internally prepared quarterly and annual financial projections (for at least 2 forward-looking years);
(c) 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, all reports on Forms 10-K and 10-Q filed with the following fiscal year Securities and Exchange Commission (on "SEC") within five (5) days after filing and all other documents filed with the SEC within five (5) days after filing;
(d) promptly upon receipt of notice thereof, a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt report of any legal actions action pending or threatened (to the extent known to Borrower) against Borrower or any Subsidiary that could is reasonably likely to result in damages or costs to Borrower or any Subsidiary of $500,000 or more; and ;
(ve) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably requests. Borrower's 10K, 10Q, and 8K reports required request from time 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).time;
(bf) Within within twenty (20) days after the last day end of each calendar month when the Borrowing Base Formula regarding Advance is applicable, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate dated as of the end of the immediately preceding month, signed by a Responsible OfficerOfficer in substantially the form of Exhibit D hereto, together with (i) aged listings of accounts receivable and accounts payable (by invoice date).payable;
(cg) Allow at the time Borrower delivers its reports on Form 10-K and 10-Q under Section 6.2(c), Borrower shall also deliver to Bank to audit Borrower's Collateral at Borrower's expense, with a Compliance Certificate signed by a Responsible Officer in substantially the first form of such audits to be completed no later than March 2, 2006, Exhibit E hereto; and
(h) as soon as possible and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default any event within three (3) Business Days after becoming aware of the occurrence or existence of an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which Borrower has occurred taken or proposes to take with respect thereto. Comerica Bank - Loan and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.Security Agreement
Appears in 1 contract
Sources: Loan and Security Agreement (Orasure Technologies Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the immediately preceding month certified by a Responsible Officer and 8K reports, as applicablein a form reasonably acceptable to Bank; (ii) a Compliance Certificate 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 prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 days after the end five (5) Business Days of each fiscal yearfiling, annual financial projections for the following fiscal year (on a quarterly basis) as approved by copies of all statements, reports and notices made available to Borrower's board security holders or to any holders of directorsSubordinated Debt and all reports on Form 10-K, together 10-Q and 8-K filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) a prompt 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 Domestic Subsidiary of One Hundred Thousand Dollars ($500,000 100,000.00) or more; and (v) budgetsannually, sales projectionsand as revised, Board approved quarterly financial and operating plans or and (vi) other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of EXHIBIT C, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Borrower shall deliver to Bank with the monthly and annual financial statements a Compliance Certificate signed by a Responsible Officer in the form of EXHIBIT D.
(d) Allow Bank to audit Borrower's Collateral Accounts at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Sources: Loan Agreement (Applix Inc /Ma/)
Financial Statements, Reports, Certificates. (a) Deliver Each Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet, income statement, and cash flow statement covering such 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 one (151) days after the end of such Borrower’s fiscal year, annual audited consolidated and consolidating financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorssuch 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 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 such Borrower to its security holders or to any related business forecasts used in holders of Subordinated Debt and all reports on Forms 10-K and 10-Q filed with the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) promptly, but in no event later than two (2) Business Days upon receipt of notice thereof, a prompt report of any legal actions pending or threatened against such Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to such Borrower or any Subsidiary of One Hundred Thousand Dollars ($500,000 100,000) or more; and (v) promptly upon receipt, each management letter prepared by such 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 sixty (60) days of fiscal year end or fifteen (15) days after approval by such Borrower’s Board of Directors, such Borrower’s financial and business projections and budget for such year, with evidence of approval thereof by such Borrower’s Board of Directors; (vii) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requests. request from time to time; and (viii) within thirty (30) days of June 30 and December 31 of each fiscal quarter, a report signed by such Borrower's 10K, 10Qin form reasonably acceptable to Bank, listing any applications or registrations that such Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts status of any outstanding applications or registrations, as well as any material change in such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)’s Intellectual Property .
(ba) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, each Borrower shall deliver to Bank Bank, a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit D hereto, together with (i) aged listings by invoice date of accounts receivable and accounts payable payable, a bookings report and a Monthly Recurring Revenue report, each in form satisfactory to Bank (collectively, the “Borrowing Base Reports”).
(b) Within thirty (30) days after the last day of each month, each Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate certified as of the last day of the applicable month and signed by invoice date)a Responsible Officer in substantially the form of Exhibit D hereto.
(c) Allow Immediately upon becoming aware of the occurrence or existence of an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which each Borrower has taken or proposes to take with respect thereto.
(d) Bank shall have a right (without duplication of any right set forth in Section 4.3) from time to time hereafter to (i) audit each Borrower's ’s Accounts and appraise Collateral at such Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or such audits will be conducted no more often than once every six (6) months unless an Event of Default has occurred and is continuing Bank continuing, provided further that such audit may conduct be conducted remotely once per year; and (ii) remotely audit Limeade GmbH’s Accounts and appraise its property at Borrowers’ expense, provided that such audits at such frequency as will be conducted no more often than once every six (6) months unless an Event of Default has occurred and is continuing. Each Borrower may deliver to Bank on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files, provided that Bank in its sole discretion may determine from time good faith believes that the files were delivered by ▇ Responsible Officer. If Borrower delivers this information electronically, it shall also deliver to timeBank by U.S. or Canadian Mail, reputable overnight courier service, hand delivery, facsimile or .pdf file within five (5) Business Days of submission of the unsigned electronic copy the certification of monthly financia1 statements, the intellectual property report, the Borrowing Base Certificate and the Compliance Certificate, each bearing the physical signature of the Responsible Officer.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank: (a) Deliver as soon as available, but in any event within fifteen (15) days after the end of each month, (i) a company prepared consolidated balance sheet and income statement covering each Borrower's consolidated operations during such period, certified by an officer of each Borrower reasonably acceptable to Bank: Bank and (ii) a company prepared consolidated and consolidating balance sheet and income statement covering Parent's consolidated operations during such period; (b)
(i) as soon as available, but no later than the earlier to occur of three in any event within ninety (390) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each Parent's fiscal year, annual audited consolidated and consolidating financial projections for the following fiscal year statements of Parent prepared in accordance with United Kingdom accounting standards, consistently applied, denominated in British pounds sterling together with an unqualified opinion on such financial statement of an independent certified public accounting firm reasonably acceptable to Banks, and (on a quarterly basisii) as approved by Borrowersoon as available, but in any event within one hundred twenty (120) days after the end of Parent's board fiscal year, audited consolidated financial statements of directorsParent prepared in accordance with United Kingdom accounting standards, consistently applied, denominated in U.S. dollars, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) within five (5) days of filing, copies of all statements, reports and notices sent or made available generally by Borrowers to security holders or to any holders of Subordinated Debt (except for those statements, reports or notices sent or made available solely to Parent) and all reports on Form 10-K, I 0-Q and 8-K filed with the Securities and Exchange Commission;
(d) promptly upon receipt of notice thereof, a prompt report of any legal actions pending or threatened against Borrower Borrowers or any Subsidiary that Borrowers' management reasonably believes could result in damages or costs to Borrower Borrowers or any Subsidiary of One Hundred Thousand Dollars ($500,000 100,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within fifteen (b) Within twenty (2015) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrowers shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (payable. Borrowers shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by invoice date).
(c) Allow a Responsible Officer of each Borrower in substantially the form of Exhibit D hereto. Bank shall have a right from time to time hereafter to audit Borrower's Collateral Borrowers' Accounts at Borrower's Borrowers' expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default such audits will be conducted prior to making the initial Advance or issuing the initial Letter of Credit pursuant to Section 2 and thereafter no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each calendar month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Bank and certified by a Responsible Officer; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's fiscal year, an annual report and audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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 10-K and 10-Q filed with the Securities and Exchange Commission within five (5) days of filing (or 95 days of calendar quarter end for the from 10-K or 50 days of calendar quarter end for the form 10-Q); (d) 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 ($500,000 100,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requests. request from time to time generally prepared by Borrower in the ordinary course of business; and (f) 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 10Kintellectual property, 10Qincluding but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not specified in Exhibits A, B, and 8K reports required to be C of the Intellectual Property Security Agreement 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank by Borrower in connection with this Agreement. If Advances under the Committed Revolving Line, including Letters of Credits and availability used under the Compliance Certificates required by Section 6.2(a)(iiCommitted Revolving Line for FX Forward Contracts, exceed Three Million Dollars ($3,000,000).
(b) Within , then within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (and a report of deferred revenue. Borrower shall deliver to Bank with the 10-Q reports a Compliance Certificate signed by invoice date).
(c) Allow 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, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct continuing; provided, however, that if Advances under the Committed Revolving Line, including Letters of Credit and availability used under the Committed Revolving Line for FX Forward Contracts, exceed Three Million Dollars ($3,000,000), then such audits at such frequency as Bank in its sole discretion may determine from time to timebe conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Loan and Security Agreement (Chordiant Software Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower agrees to Bankdeliver to Agent: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 days after the end of each of the first eleven (11) months during each of Borrower's fiscal years, a company prepared balance sheet, income statement, and cash flow statement covering Borrower's operations during such period; and (ii) as soon as available, but in any event within 90 days after the end of each of Borrower's fiscal years, financial statements of Borrower for each such fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved audited by Borrower's board independent certified public accountants of directorsnational recognition or otherwise reasonably acceptable to Agent and certified, together with without any related business forecasts used in the preparation of qualifications, by such annual financial projections; (iv) 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 $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed accountants to have been prepared in accordance with GAAP. Such audited financial statements shall include a balance sheet, profit and loss statement, and cash flow statement, and, if prepared, such accountants' letter to management. If Borrower is a parent company of one or more Subsidiaries or Affiliates, then, in addition to the financial statements referred to above that are delivered for a month ending a fiscal quarter, Borrower agrees to deliver financial statements prepared on the date a consolidating basis so as to present Borrower and each such related entity separately, and on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)consolidated basis.
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, Borrower also shall deliver to Bank a duly completed Borrowing Base Certificate signed Agent Borrower's Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by a Responsible OfficerBorrower with the Securities and Exchange Commission, with (i) aged listings if any, within one week of accounts receivable such filing, and accounts payable (any other report or information reasonably requested by invoice date)Agent relating to the Collateral and financial condition of Borrower.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expenseEach month, together with the first financial statements provided pursuant to Section 6.4(a), Borrower shall deliver to Agent a Compliance Certificate signed by its Chief Financial Officer to the effect that: (i) all reports, statements, or computer prepared information of such audits any kind or nature delivered or caused to be completed no later than March 2, 2006, delivered to Agent hereunder have been prepared in accordance with GAAP (except to the extent noted thereon) and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine fairly present in its reasonable discretion, provided that if a Default or an Event all material respects the financial condition of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.Borrower;
Appears in 1 contract
Sources: Loan and Security Agreement (Vermont Transit Co Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Fremont: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by of Borrower's board fiscal quarters during each of directorsBorrower's fiscal years, together with any related business forecasts used in the preparation of a company prepared balance sheet and profit and loss statement covering Borrower's operations during such annual financial projections; (iv) 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 $500,000 or moreperiod; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty as soon as available, but in any event within ninety (2090) days after the last day end of each month when of Borrower's fiscal years, financial statements of Borrower for each such fiscal year. Reviewed by independent certified public accountants acceptable to Fremont. Notwithstanding the Borrowing Base Formula regarding Advance is applicableforegoing, Fremont reserves the right to require Borrower to provide Fremont with company prepared financial statements on a monthly (rather than quarterly) basis. All such annual financial statements shall include a balance sheet and profit and loss statement, together with the accountants' letter to management. Borrower shall also deliver Borrower's Form 10-Qs, 10-Ks or 8-Ks, and any other filings made by Borrower with the Securities and Exchange Commission, if any, as soon as the same become available, and any other report reasonably requested by Fremont relating to Bank the Collateral or the financial condition of Borrower, including financial projections, and a duly completed Borrowing Base Certificate certificate signed by a Responsible Officerthe chief financial officer or chief executive officer of Borrower to the effect that all reports, with (i) aged listings statements or computer prepared information of accounts receivable any kind or nature delivered or caused to be delivered to Fremont under this SECTION 6.5 fairly present the financial condition of Borrower and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with that there exists on the first date of delivery of such audits certificate to be completed Fremont no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default condition or event which constitutes an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeDefault.
Appears in 1 contract
Sources: Loan and Security Agreement (International Food & Beverage Inc /De/)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within twenty-five (325) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within ninety (90) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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 ($500,000 100,000) or more; and (vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within fifteen (b) Within twenty (2015) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of EXHIBIT C hereto, together with (i) aged listings of accounts receivable and accounts payable receivable. Within twenty-five (25) days after the last day of each month, Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by invoice date).
(c) Allow 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 Collateral Accounts at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct continuing; provided however, should the first audit of Borrower's Accounts be satisfactory to the Bank, as determined in the sole discretion of the Bank, such audits at such frequency as Bank in its sole discretion may determine from time to timewill be conducted no more often than every twelve (12) months unless an Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Loan and Security Agreement (Bluestone Software Inc)
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three five (35) days after filing with the Securities Exchange Commission or 45 days after each quarter end periodCommission, the Borrower's ’s 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) beginning with fiscal year ending December 31, 2008, as soon as available, but no later than one hundred eighty (180) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm acceptable to Bank in its reasonable discretion (iv) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's ’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (ivv) 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 Two Hundred Fifty Thousand Dollars ($500,000 250,000) or more; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's ’s 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Within thirty (30) days after the last day of each month, deliver to Bank its monthly financial statements together with a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the financial covenants set forth in this Agreement.
(d) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Each Borrower (which for avoidance of doubt includes PVHDHC and PVHD), shall provide to Lender the following with regard to each Borrower respectively.
(a) Deliver Within one hundred twenty (120) days after the close of each fiscal year of Borrower, Borrower shall deliver to BankLender a copy of ▇▇▇▇▇▇▇▇'s audited consolidated financial statements prepared by a certified public accountant and consisting of, at a minimum, a balance sheet, statement of income and expenses, and a cash flow statement;
(b) Within forty five (45) days after each quarter of each fiscal year of ▇▇▇▇▇▇▇▇, Borrower shall deliver to Lender the following as prepared by ▇▇▇▇▇▇▇▇ and in a form acceptable to Lender in its sole discretion: (i) balance sheet; (ii) profit and loss statement; and (iii) comparison of ▇▇▇▇▇▇▇▇’s Perormance Plan to actual performance during the quarter in question.
(c) If Borrower files a federal income tax return with the Internal Revenue Service (if applicable), then within one hundred twenty (120) days after the filing Borrower shall provide Lender with a copy of the signed tax return filed with the Internal Revenue Service as filed by Borrower.
(d) As soon as available, but in any event no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal yearyear of Borrower, annual financial projections for the following fiscal year (on Borrower shall deliver to Lender a quarterly basis) copy of Borrower's Performance Plan as approved by Borrower's its board of directors;
(e) Borrower shall deliver to Lender other reports reasonably requested by ▇▇▇▇▇▇ relating to the Collateral and the financial condition of Borrower;
(f) Borrower shall deliver to Lender a certificate signed by the chief financial officer of Borrower to the effect that all reports, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt report statements, or computer-prepared information of any legal actions pending kind or threatened against Borrower nature delivered or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required caused to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered Lender under this Agreement are accurate, true and fairly present the financial condition of Borrower and that there exists, on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first delivery of such audits certificate to be completed Lender, no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default condition or event which constitutes an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeDefault.
Appears in 1 contract
Sources: Business Loan Agreement
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (i) as soon as availableif applicable, but no later than the earlier copies of all statements, reports and notices sent or made available generally by Borrower to occur its security holders or to any holders of three (3) days after filing Subordinated Debt and all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicableCommission; (ii) promptly upon receipt of notice thereof, a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 Two Hundred Fifty Thousand Dollars ($500,000 250,000) or more; (iii) promptly upon receipt, each management letter prepared by Borrower’s independent certified public accounting firm regarding Borrower’s management control systems; and (viv) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requests. Borrower's 10K, 10Q, and 8K reports required request from time 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)time.
(ba) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Compliance Certificate certified as of the last day of the applicable month and signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto.
(b) As soon as possible and in any event within three (3) calendar days after becoming aware of the occurrence or existence of an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which Borrower has taken or proposes to take with (i) aged listings of accounts receivable and accounts payable (by invoice date)respect thereto.
(c) Allow Bank shall have a right from time to time hereafter to audit Borrower's ’s Accounts and appraise Collateral at Borrower's ’s reasonable expense, with the first of ; provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct continuing; provided further that such audits at such frequency as shall be conducted during Borrower’s normal business hours. Borrower may deliver to Bank on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files; provided that Bank in its sole discretion may determine from time good faith believes that the files were delivered by a Responsible Officer. If Borrower delivers this information electronically, it shall also deliver to timeBank by U.S. Mail, reputable overnight courier service, hand delivery, facsimile or .pdf file within five (5) Business Days of submission of the unsigned electronic copy the intellectual property report and the Compliance Certificate, each bearing the physical signature of the Responsible Officer.
Appears in 1 contract
Sources: Loan and Security Agreement (TorreyPines Therapeutics, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three five (35) days after filing with the Securities Exchange Commission or 45 days after each quarter end periodCommission, the Borrower's ’s 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 seven (7) days after the end approval by Borrower’s board of each fiscal yeardirectors, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's ’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt 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 Five Hundred Thousand Dollars ($500,000 500,000) or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's ’s 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) and any litigation disclosure required to be delivered pursuant to Section 6.2(a)(iv) that is disclosed in such exchange act reports shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such month certified by a Responsible Officer and in a form acceptable to Bank.
(c) Within thirty (30) days after the last day of each month, deliver to Bank its monthly financial statements together with a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, Officer setting forth calculations showing compliance with (i) aged listings of accounts receivable and accounts payable (by invoice date)the financial covenants set forth in this Agreement.
(cd) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretionleast once every six (6) months, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency more often as Bank in its sole discretion may determine from time to timeconditions warrant.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within forty five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each quarter, a company prepared consolidated balance sheet, income, and cash flow statement covering Borrower's operations during such period, prepared in accordance with GAAP on a consolidated and consolidating basis, consistently applied, in a form acceptable to Bank and certified by a Responsible Officer (Borrower shall deliver such financial information on a monthly basis within twenty (20) days after the end of each month for any month in which the aggregate amount of the outstanding Advances plus the aggregate undrawn face amount of all outstanding Letters of Credit exceeded $200,000 at any time); (b) as soon as available, but in any event within ninety (90) days after the end of Borrower's fiscal year, annual audited consolidated and consolidating financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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 10-K and 10-Q filed with the Securities and Exchange Commission (to the extent their delivery is not already required pursuant to subsections (a) and (b) above); (d) 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requests. request from time to time generally prepared by Borrower in the ordinary course of business; and (f) within forty five (45) 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 10Kintellectual property, 10Qincluding but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not specified in EXHIBITS A, B, and 8K reports required to be C of the Intellectual Property Security Agreement 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Borrower in connection with this Agreement. Within fifteen (b) Within twenty (2015) days after the last day of each month when in which the Borrowing Base Formula regarding Advance is applicableaggregate amount of the outstanding Advances plus the aggregate undrawn face amount of all outstanding Letters of Credit exceeds $200,000 at any time, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of EXHIBIT C hereto, together with (i) aged listings of accounts receivable and accounts payable payable. Borrower shall deliver to Bank with the quarterly and (if required) monthly financial statements, a Compliance Certificate signed by invoice date).
(c) Allow 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, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) 30 days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during the period, the Borrower's 10K, 10Q, in a form acceptable to Bank and 8K reports, as applicablecertified by a Responsible Officer; (ii) a Compliance Certificate together within 10 days of filing, copies of all statements, reports and notices made available to Borrower's security holders or to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with delivery of the 10K Securities and 10Q reportsExchange Commission; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 250,000 or more; (iv) prompt 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 Bank or knowledge of an event that materially adversely affects the value of the Intellectual Property taken as a whole; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower will deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and receivable, accounts payable (by invoice date)and schedule of deferred revenues.
(c) Allow Within 30 days after the last day of each month, Borrower will deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Bank has the right to audit Borrower's Collateral Accounts at Borrower's expense, with but the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no less often than once every 6 months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing; provided, however, -------- ------- that the cost of any one audit shall not exceed $2,000.
Appears in 1 contract
Sources: Loan and Security Agreement (Egain Communications Corp)
Financial Statements, Reports, Certificates. Borrower shall deliver the following to Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within twenty five (325) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery signed by a Responsible Officer in substantially the form of Exhibit D hereto including a comparison of the 10K and 10Q reportsactual consolidated cash balance at the end of the previous month to the minimum required cash balance; (iiib) as soon as available, but in any event within 45 forty five (45) days after the end of each fiscal quarter, a consolidated balance sheet, income, and cash flow statements covering Borrower’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 acceptable to Lender, along with a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto; (e) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower’s fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Lender; (ivd) 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, if applicable, all reports on Forms 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission; (e) 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (vf) such budgets, sales projections, operating plans or plans, other financial information Bank including information related to the verification of Borrower’s Accounts as Lender may reasonably requests. Borrower's 10K, 10Q, and 8K reports required request from time 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 link thereto on Borrower's or another website on the Internettime; provided, however, that Borrower shall not be required to provide paper copies the financial statements referred to Bank of in the Compliance Certificates required by Section 6.2(a)(ii).
preceding subsections (b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank for any period with respect to audit Borrower's Collateral at Borrower's expensewhich it has timely filed its reports on Form 10-Q or 10-K, as applicable, and provided copies of such reports in accordance with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timepreceding subsection (d).
Appears in 1 contract
Sources: Convertible Loan and Security Agreement (Vuzix Corp)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (i) as soon as available, but no later than in any event within five (5) days after filing, all reports on Forms 10-K filed with the earlier Securities and Exchange Commission (including audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to occur of three Bank); (3ii) as soon as available, but in any event within five (5) days after filing all reports on Forms 10-Q filed with the Securities and Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reportsCommission; (iii) as soon as available, but in any event within 45 five (5) days after the end mailing, copies of each fiscal yearall statements, annual financial projections for the following fiscal year (on a quarterly basis) as approved reports and notices sent or made available generally by Borrower's board , to its security holders or to any holders of directors, together with any related business forecasts used in the preparation of such annual financial projections; Subordinated Debt and (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 Five Hundred Thousand Dollars ($500,000 500,000) or more; and (v) budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably requests. Borrower's 10K, 10Q, and 8K reports required request from time 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)time.
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit B hereto, together with (i) aged listings of accounts receivable and accounts payable (by invoice date)payable.
(c) Allow Within thirty (30) days after the last day of each calendar quarter, Borrower shall deliver to Bank a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto.
(d) Bank shall have a right from time to time hereafter, during Borrower's regular business hours and after reasonable notice, to audit Borrower's Accounts and appraise Collateral at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once each year unless an Event of Default Default' has occurred and is continuing and Borrower will only be obligated to reimburse Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timefor Bank's reasonable out of pocket expenses.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate 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 prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 five (5) days after the end of each fiscal yearfiling, annual financial projections for the following fiscal year (on a quarterly basis) as approved by copies of all statements, reports and notices made available to Borrower's board security holders or to any holders of directorsSubordinated Debt and all reports on Form 10-K, together 10-Q and 8-K filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) 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 Five Hundred Thousand Dollars ($500,000 500,000.00) or more, or Two Million ($2,000,000.00) in the aggregate; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) 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 the form of Exhibit D.
(d) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Sources: Loan and Security Agreement (Speechworks International Inc)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within one hundred twenty (3120) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal yearFiscal Year, annual audited consolidated and consolidating financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an opinion which is unqualified on such financial statements of such annual financial projections; (iv) an independent certified public accounting firm selected by Borrower and acceptable to Bank and a prompt report copy of any legal actions pending or threatened against Borrower or any Subsidiary that could result in damages or costs management letter sent to Borrower or any Subsidiary of $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts by such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)accountants.
(b) Within twenty as soon as available, but in any event within sixty (2060) days after the end of each Fiscal Quarter (other than Fiscal Quarters ending on December 31), (i) company-prepared consolidated and consolidating financial statements, including a balance sheet and statements of income, retained earnings and cash flow, in a form acceptable to Bank and certified by a Responsible Officer, and (ii) true and correct copies of each FOCUS Report filed during such Fiscal Quarter.
(c) concurrently with delivery of the annual financial statements required by clause (a) above and the quarterly financial statements required by clause (b) above, a Compliance Certificate certified as of the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate applicable Fiscal Year or Fiscal Quarter and signed by a Responsible Officer, with (i) aged listings in substantially the form of accounts receivable and accounts payable (by invoice date)Exhibit C hereto.
(cd) Allow Bank to audit Borrower's Collateral at Borrower's expensewithin thirty (30) days of filing of the same by any Guarantor, with copies of all federal, state and other material tax returns and reports (including without limitation all schedule K-1s attached thereto) which contain more than $50,000 in distributions;
(e) promptly upon becoming aware of the first occurrence or existence of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which ▇▇▇▇▇▇▇▇ has occurred taken or proposes to take with respect thereto;
(f) except as provided in clause (b) above, promptly upon the filing thereof, copies of all registration statements and is continuing annual, quarterly, monthly or other regular reports which Borrower or any of its Subsidiaries files with the SEC, as well as promptly providing to Bank copies of any reports and proxy statements delivered to its shareholders;
(g) as soon as available, but in any event with ninety (90) days of December 31 of each year personal financial statements and proof of liquidity for each Guarantor, in a form acceptable to Bank and certified by such Guarantor;
(h) promptly following any request therefor, Borrower shall provide information and documentation reasonably requested by Bank for purposes of compliance with applicable “know your customer” requirements under the Patriot Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws, including but not limited to a Beneficial Ownership Certification form acceptable to Bank;
(i) promptly upon receipt, any notices from SEC, FINRA or any other Governmental Authority regarding any liability; and
(j) promptly following request therefor by Bank, such other business or financial data, reports, appraisals and projections as Bank may conduct such audits at such frequency as request. Borrower may deliver to Bank on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files, provided that Bank in its sole discretion may determine from time good faith believes that the files were delivered by a Responsible Officer of Borrower. If Borrower delivers any such information electronically, Borrower shall also deliver such information to timeBank by U.S. Mail, reputable overnight courier service, hand delivery, facsimile or .pdf file within five (5) Business Days after ▇▇▇▇▇▇▇▇’s electronic submission of such information.
Appears in 1 contract
Sources: Loan and Security Agreement (Siebert Financial Corp)
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) 30 days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during the period, the Borrower's 10K, 10Q, in a form and 8K reports, as applicablecertified by a Responsible Officer acceptable to Bank; (ii) a Compliance Certificate together with delivery as soon as available, but no later than 120 days after the last day of Borrower's fiscal year, preliminary audited consolidated financial statements prepared under GAAP and 150 days after the 10K and 10Q reportslast day of Borrower's fiscal year, Borrower's final audited consolidated financial statements prepared under GAAP, consistently applied, from an independent certified public accounting firm acceptable to Bank; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 100,000 or more; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower will deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and accounts payable (by invoice date)payable.
(c) Allow Within 30 days after the last day of each month, Borrower will deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Bank has the right to audit Borrower's Collateral Accounts at Borrower's expenseexpense not to exceed $600, with but the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every year unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal yearcalendar month, annual financial projections for the following fiscal year (on a quarterly basis) as approved company prepared consolidated and consolidating balance sheet, income, and cash flow statement covering Borrower’s consolidated and consolidating operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Bank and certified by Borrower's board of directorsa Responsible Officer, together with any related business forecasts used a backlog report in the preparation of such annual financial projectionsform and substance reasonably satisfactory to Bank; (ivb) as soon as available, but in any event within five days of filing with the Securities and Exchange Commission, Form 10-K, including audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion (other than a prompt going-concern opinion) on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; (c) 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; (d) as soon as available, but in any event within five days of filing with the Securities and Exchange Commission, all reports on Form 10-Q; (e) 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 Hundred Thousand Dollars ($500,000 100,000) or more; (f) as soon as available, but in any event within thirty (30) days before the beginning of Borrower’s next fiscal year, the Board-approved operating budget for such year in form and substance satisfactory to Bank; and (vg) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, On the 15th and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last 30th day of each month when (28th day if less than 30 days in the Borrowing Base Formula regarding Advance is applicablemonth), Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and receivable, certified by a Responsible Officer. Within 20 days of the last day of each month, Borrower shall deliver to Bank aged listings of accounts payable (payable, certified by invoice date).
(c) Allow a Responsible Officer. 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 ’s Accounts and appraise Collateral at Borrower's ’s expense, with including an audit prior to the first anniversary of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretionthe Closing Date, provided that if a Default or such audits will be conducted no more often than every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the period certified by a Responsible Officer and 8K reports, as applicablein a form reasonably acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than ninety (90) days after the last day of Borrower's fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an opinion on the 10K and 10Q reportsfinancial statements from a nationally-recognized, independent, certified public accounting firm; (iii) within 45 days after five (5) Business Days of filing, notification of all reports on Forms 10-K and 10-Q filed with the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) a prompt 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 Five Hundred Thousand Dollars ($500,000 500,000) or more; (v) as soon as available, but no later than thirty (30) days after the end of each fiscal year, a one (1) year (prepared on a quarterly basis) financial projections of Borrower on a consolidated basis, including a balance sheet and statements of income and cash flows and showing projected operating revenues, expenses and debt service of Borrower on a consolidated basis prepared under GAAP; and (vvii) budgets, sales projections, operating plans or other financial information Bank reasonably requestsrequested by Bank. Borrower's 10K, 10Q, K and 8K 10Q reports required to be delivered pursuant to Section 6.2(a)(i) this Sections 6.2(a), 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 on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)internet.
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, Borrower shall deliver to Bank Bank, together with the monthly financial statements set forth in clause (a)(i) above and the annual financial statements set forth in clause (a)(ii) above, a duly completed Borrowing Base Compliance Certificate signed by a Responsible OfficerOfficer in the form of EXHIBIT C. If the financial statements are deemed delivered via internet posting, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits Compliance Certificate shall continue to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timedelivered via paper copies.
Appears in 1 contract
Sources: Loan and Security Agreement (Digital Impact Inc /De/)
Financial Statements, Reports, Certificates. Borrower shall deliver to Bank:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within FORTY-FIVE (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal quarter, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, certified by an officer of Borrower reasonably acceptable to Bank;
(b) as soon as available, but in any event within NINETY (90) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank;
(c) 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 related business forecasts used in holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with the preparation Securities and Exchange Commission;
(d) promptly upon receipt of such annual financial projections; (iv) 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 ($500,000 100,000) or more; and and
(ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within fifteen (b) Within twenty (2015) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablefiscal quarter during which Advances are outstanding under this Agreement, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable payable. Within FORTY-FIVE (by invoice date).
(c45) Allow days after the last day of each fiscal quarter, Borrower shall deliver to Bank to audit Borrower's Collateral at Borrower's expense, with the first quarterly financial statements a Compliance Certificate signed by a Responsible Officer in substantially the form of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeExhibit D hereto.
Appears in 1 contract
Sources: Loan Agreement (Advanced Technology Materials Inc /De/)
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) 30 days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate together with delivery within 5 days of the filing, copies of all statements, reports and notices made available to Borrower's security holders or to any holders of Subordinated Debt and all reports and related financial statements on Form 10-K and 10Q reports10-Q and 8-K filed with the Securities and Exchange Commission; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 100,000 or more; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requests; and (v) prompt notice of any material change in the composition of the Intellectual Property. Borrower's 10K, 10Q, and 8K reports required to be It is agreed that Bank shall maintain confidential all non-public financial information 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of above in accordance with the Compliance Certificates required by confidentiality standards set forth in Section 6.2(a)(ii)12.8 hereof.
(b) (i) Within twenty (20) 20 days after the last day of each month when the any Borrowing Base Formula regarding Advance is applicableAdvances are outstanding; or (ii) otherwise, immediately prior to the making of any Borrowing Base Advance, Borrower will deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and accounts payable (by invoice date)payable.
(c) Allow Within 30 days after the last day of each month, Borrower will deliver to Bank with the monthly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Bank has the right to audit Borrower's Accounts and other Collateral (with results determined to be acceptable to Bank in accordance with the good faith business judgment of Bank) at Borrower's expense, with but the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every 12 months unless an Event of Default has occurred and is continuing Bank may conduct continuing, provided that, in any event, such audits at such frequency as an audit (with results determined to be acceptable to Bank in its sole discretion may determine accordance with the good faith business judgment of Bank) shall be conducted upon the earlier to occur of (i) the Borrower's request for Revolving Advances under Section 2.1.1(a-1) of this Agreement when first made; or (ii) the date that is six (6) months from time the date hereof; and, in any event, any such first audit shall be promptly initiated and completed (with results satisfactory to timeBank) prior to the making of any Revolving Advances under Section 2.1.1(a-2).
Appears in 1 contract
Sources: Loan and Security Agreement (Dpac Technologies Corp)
Financial Statements, Reports, Certificates. Deliver to Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 30 days after the end of each month during each of Borrower's fiscal years, a company prepared balance sheet, income statement, and statement of cash flow covering Borrower's operations during such period; and (b) as soon as available, but in any event within 90 days after the end of each of Borrower's fiscal years, financial statements of Borrower for each such fiscal year, annual audited by independent certified public accountants reasonably acceptable to Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP. Such audited financial projections for statements shall include a balance sheet, profit and loss statement, and statement of cash flow and, if prepared, such accountants' letter to management. In addition to the following fiscal year (financial statements referred to above, Borrower agrees to deliver financial statements prepared on a quarterly consolidated basis) as approved by . Together with the above, Borrower also shall deliver to Lender Borrower's board Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower with the Securities and Exchange Commission, if any, as soon as the same are filed, or any other information that is provided by Borrower to its shareholders, and any other report reasonably requested by Lender relating to the financial condition of directorsBorrower. Each month, together with any related business forecasts used in the preparation of such annual financial projections; statements provided pursuant to Section 6.3(a), Borrower shall deliver to Lender a certificate signed by its -------------- chief financial officer to the effect that: (ivi) a prompt report of any legal actions pending all financial statements delivered or threatened against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required caused to be delivered pursuant to Section 6.2(a)(i) shall be deemed to Lender hereunder have been delivered 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 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 Borrower posts a financial covenant in Sections 7.20 ------------- and 7.21 is to be tested, a Compliance Certificate demonstrating in reasonable -------- detail compliance at the end of such report or provides a link thereto on Borrower's or another website period with the applicable financial covenants contained in Sections 7.20 and 7.21, and (iv) on the Internet; provideddate of delivery ---------------------- of such certificate to Lender there does not exist any condition or event that constitutes a Default or Event of Default (or, that in the case of clauses (i), (ii), or (iii), to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrower has taken, is taking, or proposes to take with respect thereto). Borrower shall provide paper copies have issued written instructions to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicableits independent certified public accountants authorizing them to communicate with Lender and to release to Lender whatever financial information concerning Borrower that Lender may request. Borrower hereby irrevocably authorizes and directs all auditors, accountants, or other third parties to deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerLender, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first copies of such audits to be completed no later than March 2Borrower's financial statements, 2006papers related thereto, and with results acceptable other accounting records of any nature in their possession, and to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred disclose to Lender any information they may have regarding Borrower's business affairs and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timefinancial conditions.
Appears in 1 contract
Sources: Loan and Security Agreement (Graphix Zone Inc /De/)
Financial Statements, Reports, Certificates. Deliver to Foothill: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month during each of Borrower's fiscal year, annual financial projections years (except for the following fiscal year month of September, which shall be within sixty (on 60) days), a quarterly basis) as approved by company prepared balance sheet, income statement, and cash flow statement covering Borrower's board of directors, together with any related business forecasts used in the preparation of operations during such annual financial projections; (iv) 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 $500,000 or moreperiod; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty as soon as available, but in any event within ninety (2090) days after the last day end of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expensefiscal years, financial statements of Borrower for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Foothill and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP, together with a certificate of such accountants addressed to Foothill stating that such accountants do not have knowledge of the existence of any event or condition constituting an Event of Default, or that would, with the first passage of such audits to be completed no later than March 2time or the giving of notice, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or constitute an Event of Default has occurred Default. Such audited financial statements shall include a balance sheet, profit and loss statement, and cash flow statement, and, if prepared, such accountants' letter to management. Borrower and Guarantor shall have issued written instructions to their independent certified public accountants authorizing them to communicate with Foothill and to release to Foothill whatever financial information concerning Borrower or Guarantor that Foothill may request; provided, however, that Borrower and Guarantor shall not be liable if such accountants fail to comply with Foothill's request unless their failure is continuing Bank may conduct such audits at such frequency caused by the gross negligence or wilful misconduct of Borrower or Guarantor. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on a consolidating basis so as Bank in its sole discretion may determine from time to timepresent Borrower and each subsidiary of Borrower separately, and on a consolidated basis. Together with the above, Borrower also shall deliver to Foothill Borrower's Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower or Guarantor with the Securities and Exchange Commission, if any, as soon as the same are filed, or any other information that is provided by Borrower and Guarantor to their respective shareholders, and any other report reasonably requested by Foothill relating to the Collateral, the Real Property, or the financial condition of Borrower or Guarantor.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 30 days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet and income statement 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 150 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 opinion which is either unqualified, qualified only for going concern so long as Borrower’s investors provide additional equity as needed or otherwise consented to in writing by Bank on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; (iii) annual financial projections for the following fiscal year (on a quarterly basis) as budget approved by Borrower's board ’s Board of directors, together with any related business forecasts used in Directors as soon as available but not later than 60 days after the preparation beginning of such annual financial projectionsthe applicable fiscal year; (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 10-K and 10-Q filed with the Securities and Exchange Commission; (v) promptly upon receipt of notice thereof, 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 $500,000 250,000 or more; (vi) promptly upon receipt, each management letter prepared by Borrower’s independent certified public accounting firm regarding Borrower’s management control systems, and (vvii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably requests. Borrower's 10Krequest from time to time.
(a) Within 10 days after both the 1st day and the 15th day of each month, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of the Compliance Certificates required Exhibit D hereto, together with aged listings by Section 6.2(a)(ii)invoice date of accounts receivable and accounts payable and an updated schedule of deferred revenue.
(b) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank with the monthly financial statements a duly completed Borrowing Base Compliance Certificate certified as of the last day of the applicable month and signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date)Exhibit E hereto.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with As soon as possible and in any event within 5 calendar days after becoming aware of the first occurrence or existence of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which Borrower has occurred and is continuing taken or proposes to take with respect thereto.
(d) Not including the initial audit required by Section 3.2(d) hereof, Bank may conduct such audits at such frequency as Bank (through any of its officers, employees, or agents) shall have the right, upon reasonable prior notice (but in its sole discretion may determine no instance less than 5 days prior written notice), from time to time.time during Borrower’s usual business hours but no more than once in any 6 month period (unless an Event
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three one hundred twenty (3120) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the last day of Borrower's 10Kfiscal year, 10Qaudited, and 8K reportsconsolidated financial statements prepared under GAAP, as applicableconsistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank; (ii) a Compliance Certificate together within five (5) days of filing, copies of all statements, reports and notices made available to Borrower's security holders or to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with delivery of the 10K Securities and 10Q reportsExchange Commission; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 ($500,000 100,000.00) or more; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty thirty (2030) days after the last day of each month when during which Obligations (including undrawn Letters of Credit, Cash Management Services and the Borrowing Base Formula regarding Advance is applicableFX Reserve) were outstanding or Credit Extensions were requested, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged --------- listings of accounts receivable and accounts payable (by invoice date).
(c) Within five (5) days of filing its 10-Q with the Securities and Exchange Commission, Borrower shall deliver to Bank, on a quarterly basis, together with a copy of such 10-Q, a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D. ---------
(d) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretionprior to the initial Credit Extension under the Committed Revolving Line and no more often than once every twelve (12) months thereafter, provided that if a Default or unless an Event of Default has occurred and is continuing continuing. The Borrower shall provide the Bank may conduct such audits at such frequency as with access to all its records and financial information so that the initial audit (the "Initial Audit") of Borrower's Collateral shall be completed by Bank in its sole discretion may determine from time prior to timethe initial Credit Extension under the Committed Revolving Line.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three five (35) days after filing with the Securities Exchange Commission or 45 days after each quarter end periodCommission, the Borrower's ’s 10-K, 10Q10-Q, and 8-K reportsreports (provided however, as applicablein 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 10Q reports10-Q reports setting forth calculations showing compliance with the financial covenants set forth herein; (iii) within 45 days no later than January 31st after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's ’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 $500,000 250,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests; and (vi) within five (5) 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 Governmental Approvals or otherwise on the operations of Borrower or any of its Subsidiaries. Borrower's ’s 10-K, 10Q10-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 link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after Beginning the last day earlier of each month when the delivery date of the initial Notice of Borrowing Base Formula regarding Advance is applicableor June 30, 2010, deliver to Bank a duly completed Borrowing Base Certificate Transaction Report signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date), within thirty (30) days after the last day of each month, unless no amounts are outstanding under the Revolving Line, within thirty (30) days after the last day of each fiscal quarter, but in any event prior to an Advance.
(c) Beginning the earlier of the delivery date of the initial Notice of Borrowing or June 30, 2010, deliver to Bank its monthly financial statements together with a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the financial covenants set forth in this Agreement within thirty (30) days after the last day of each month, unless no amounts are outstanding under the Revolving Line, then within thirty (30) days after the last day of each fiscal quarter, but in any event prior to an Advance.
(d) Beginning the earlier of the delivery date of the initial Notice of Borrowing or June 30, 2010, within 30 days after the last day of each quarter, deliver to Bank a cash balance report, including account statements detailing cash management types of investments held and maturity dates.
(e) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every six months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.”
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three twenty five (325) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end quarter, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during the period, the Borrower's 10K, 10Q, in a form acceptable to Bank and 8K reports, as applicablecertified by a Responsible Officer; (ii) a Compliance Certificate as soon as available, but no later than ninety (90) days after the end of Borrower's fiscal year, audited, consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm acceptable to Bank; (iii) within 45 five (5) days after the end of each fiscal yearfiling, annual financial projections for the following fiscal year (on a quarterly basis) as approved by copies of all statements, reports and notices made available to Borrower's board security holders or to any holders of directorsSubordinated Debt and all reports on Form 10-K, together 10-Q and 8-K filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) 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 ($500,000 100,000.00) or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty five (2025) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablewhile Obligations are outstanding, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Within twenty five (25) days after the last day of each quarter, Borrower shall deliver to Bank with the quarterly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Bank has the right to audit Borrower's Collateral Accounts at Borrower's expense, with but the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) 45 days after filing the last day of each fiscal quarter Borrower's Form 10-Q filed with the Securities and Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicableCommission; (ii) a Compliance Certificate as soon as available, but no later than 90 days after the end of Borrower's fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm acceptable to Bank; (iii) within 45 5 days after the end of each fiscal yearfiling, annual financial projections for the following fiscal year (on a quarterly basis) as approved by copies of all statements, reports and notices made available to Borrower's board security holders or to holders of directorsany Subordinated Debt (but non-material, together one-time information provided in fulfillment of individual, specific requests by individual security holders or to holders of any Subordinated Debt not otherwise provided or otherwise required by law or agreement to be provided need not be automatically provided to Bank), and all reports on Form 10-K and 8-K filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission; (iv) a prompt report of any legal actions pending or or, to Borrower's knowledge, to the knowledge of Borrower's Responsible Officers and legal counsel, threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of $500,000 100,000 or more; (v) prompt notice of any material adverse change in the composition of the Intellectual Property or the Collateral or knowledge of an event that materially adversely affects the value of the Intellectual Property or the Collateral; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) 45 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablequarter, Borrower will deliver to Bank with the quarterly 10-Q reports a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in the form of accounts receivable and accounts payable (by invoice date).Exhibit C.
(c) Allow Bank has the right to audit Borrower's Collateral Accounts at Borrower's expense, with but the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every 12 months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) in any event within 45 15 days after the end of each month during each of Borrower’s Fiscal years,
(i) a Borrower prepared Consolidated and individual balance sheet, income statement, and statement of cash flow covering Borrower’s and its Subsidiaries’ operations during such period and comparing the then current Business Plan and the same period during the prior year on a Consolidated, consolidating and individual basis,
(ii) a certificate signed by the chief financial officer of Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to fiscal year, annual -end audit adjustments) and fairly present in all material respects the financial projections for condition of Borrower and its Subsidiaries,
(B) the following fiscal year (representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on a quarterly basis) and as approved by Borrower's board of directors, together with any related business forecasts used in the preparation date of such annual financial projections; certificate, as though made on and as of such date (ivexcept to the extent that such representations and warranties relate solely to an earlier date), and
(C) there does not exist any condition or event that constitutes a prompt report Default or Event of Default (or, to the 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 Borrower or any Subsidiary of $500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(iitake with respect thereto).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).Reserved;
(c) Allow Bank as soon as available, but in any event within 90 days after the end of Borrower’s Fiscal year, Consolidated and consolidating financial statements of Borrower and its Subsidiaries for each such Fiscal year, audited by independent certified public accountants selected by Borrower and reasonably acceptable to audit Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management) together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default;
(d) as soon as available but in any event:
(i) within 15 days after the end of each month during the first twelve calendar months after the Closing Date copies of Borrower's Collateral at ’s monthly Business Plan, for the next four week period, on a week-by-week basis; and
(ii) prior to the last Business Day of each January, in each Fiscal year of Borrower's expense, copies of Borrower’s annual Business Plan, for the forthcoming year, on a month-by-month basis, year by year; each such Business Plan to be in form and substance (including as to scope and underlying assumptions) satisfactory to Lender in its Permitted Discretion certified by the chief financial officer of Borrower (in such officer’s capacity as such and not individually) as being such officer’s good faith best estimate of the financial performance of Borrower and its Subsidiaries during the period covered thereby,
(e) if and when filed by Borrower,
(i) any filings made by Borrower with the first SEC or any other securities commission in any other jurisdiction,
(ii) copies of such audits to be completed no later than March 2, 2006Borrower’s federal income tax returns, and any amendments thereto, filed with results acceptable the Internal Revenue Service or any other relevant Governmental Authority, and
(iii) any other information that is provided by Borrower to Bank. Such audits shall its shareholders generally solely in their capacities as shareholders,
(f) if and when filed by Borrower and as reasonably requested by Lender, satisfactory evidence of payment of any applicable Taxes in each jurisdiction in which (i) Borrower is required to pay any Taxes, (ii) where Borrower’s failure to pay any such applicable Taxes would result in a Lien (other than a Permitted Lien) on the properties or assets of Borrower, or (iii) where Borrower’s failure to pay any such applicable Taxes reasonably could be conducted at expected to result in a frequency Material Adverse Change,
(g) as soon as Borrower has knowledge of any event or condition that Bank shall determine in its reasonable discretion, provided that if constitutes a Default or an Event of Default has occurred Default, notice thereof and is continuing Bank a statement of the curative action that Borrower propose to take with respect thereto, and
(h) upon the request of Lender, any other report reasonably requested relating to the financial condition of Borrower. Borrower agrees that it and its Subsidiaries will have the same Fiscal year. Borrower agrees that its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrower that Lender reasonably may conduct request. Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agree that Lender may contact directly any such audits at accounting firm or service bureau in order to obtain such frequency as Bank in its sole discretion may determine from time to timeinformation.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to BankCollateral Agent: (i) as soon as available, but no later than forty-five (45) days after the earlier last day of each calendar quarter, a company prepared consolidated and consolidating balance sheet and income statement covering the consolidated operations of Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to occur Collateral Agent; (ii) as soon as available, but no later than one hundred twenty (120) days after the last day of three Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from the Auditor; (3iii) 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 made available to all of Borrower’s security holders or to any holders of Subordinated Debt; (v) Borrower shall provide each Lender with, as soon as available, but no later than five (5) days after filing with the Securities Exchange Commission or 45 days after each quarter end periodCommission, the Borrower's ’s Reports on Form 10-K, 10Q10-Q, and 8K reports, as applicable-K; (iivi) a Compliance Certificate together with delivery prompt notice of (A) any material change in the composition of the 10K and 10Q reports; Intellectual Property, (iiiB) within 45 days after quarterly notice of the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt report registration of any legal actions pending copyright, including any subsequent ownership right of Borrower in or threatened against Borrower to any copyright, patent or trademark, and (C) prompt notice of Borrower’s knowledge of any Subsidiary event that could result in damages or costs reasonably be expected to Borrower or any Subsidiary materially and adversely affect the value of $500,000 or morethe Intellectual Property; and (vvii) budgets, sales projections, operating plans or and other financial information Bank reasonably requestsrequested by Collateral Agent. Borrower's ’s Reports on Form 10-K, 10Q10-Q, and 8-K reports required to be delivered pursuant to Section 6.2(a)(i) 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 ’s or another website (including ▇▇▇.▇▇▇.▇▇▇) on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank Collateral Agent, a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank Collateral Agent and Lenders to audit Borrower's ’s and Guarantor’s Collateral at Borrower's expense’s expense (not to exceed $850.00 per day, with the first of such audits to be completed no later than March 2including out-of-pocket expenses), 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its during regular business hours upon reasonable discretion, provided that if a Default or prior notice (except while an Event of Default has occurred and is continuing Bank may conduct such continuing). Such audits at such frequency as Bank in its sole discretion may determine from time to timeshall be conducted no more often than once every twelve months unless an Event of Default has occurred and is continuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower agrees to deliver to People's: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after end of each quarter end period, the month during each of Borrower's 10Kfiscal years, 10Qa company prepared balance sheet, income statement, and 8K reportscash flow statement covering Borrower's operations during such period; and (b) as soon as available, as applicable; but in any event within forty-five (ii45) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by quarter during each of Borrower's board of directorsfiscal years, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt company prepared 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 $500,000 or moreon slow moving Inventory; and (vc) budgetsas soon as available, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
but in any event within ninety (b) Within twenty (2090) days after the last day end of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrowerfiscal years, financial statements of Borrower for each such fiscal year, audited by KPMG Peat Marwick or such other independent certified public accountants reasonably acceptable to People's expenseand certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP, together with a certificate of such accountants addressed to People's stating that such accountants do not have knowledge of the existence of any event or condition constituting an Event of Default, or that would, with the first passage of such audits to be completed no later than March 2time or the giving of notice, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or constitute an Event of Default has occurred Default. Such audited financial statements shall include a balance sheet, profit and loss statement, and cash flow statement, and, if prepared, such accountants' letter to management. If Borrower is continuing Bank may conduct a parent 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 audits at such frequency related entity separately, and on a consolidated basis. In addition to the above, annually with Borrower's annual financial statements, Borrower shall provide People's with a projection on an annual basis for the ensuing fiscal year of Borrower's cash flow, financial performance, sales and expenses. Together with the above, Borrower also shall deliver to People's Borrower's any Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower with the Securities and Exchange Commission, if any, as Bank soon as the same are filed, or any other information that is provided by Borrower to its shareholders, in its sole discretion may determine from time their capacity as shareholders, and any other report reasonably requested by People's relating to timethe Collateral or the financial condition of Borrower.
Appears in 1 contract
Sources: Loan Agreement (Millbrook Press Inc)
Financial Statements, Reports, Certificates. (a) Deliver Each Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared consolidated balance sheet and income statement covering each Borrower's consolidated operations during such period, in a form and certified by an officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within ninety (90) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) as soon as available, but in any event within thirty (30)days after the end of each fiscal quarter, an internally prepared aging of accounts payable in form and detail satisfactory to Bank; (d) within five (5) Business Days of 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 ($500,000 100,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within thirty (b) Within twenty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrowers shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of EXHIBIT C hereto, together with (i) an aged listings of accounts receivable and accounts payable receivable. Within thirty (30) days after the last day of each month, Borrowers shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by invoice date).
(c) Allow 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 Collateral Borrowers' Accounts at Borrower's Borrowers' expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if such audits will be conducted no more often than every six (6) months at a Default or cost not to exceed $1,750 per audit, unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after the last day of each quarter end periodquarter, a 10Q report in the form required by the Securities and Exchange Commission (“SEC”) covering Borrower's 10K, 10Q, and 8K reports, as applicable’s consolidated operations during the period certified by a Responsible Officer; (ii) as soon as available, but no later than 120 days after the last day of Borrower’s fiscal year, a Compliance Certificate 10K report in the form required by the SEC (including audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm); (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt report of any legal actions pending or threatened against or any complaints filed with the Texas Workforce Commission against Borrower or any Subsidiary that could result in damages or costs to Borrower or any Subsidiary of $500,000 or more; and (viv) budgets, sales projections, operating plans or other financial information Bank reasonably requestsrequests which are prepared by Borrower in the ordinary course of its business; and (v) prompt notice of any event that materially adversely affects the value of the Intellectual Property. Borrower's 10KSo long as Borrower is a public company filing financial information with the Securities and Exchange Commission, 10Qthe reporting required in subsections (i) and (ii) hereof shall not be required for any period during which no Obligations are owing by Borrower to Bank, and 8K reports provided that Borrower shall deliver such financial information with each Advance request (if no Obligations are outstanding on the date of such Advance request). It shall not be a violation of this covenant if information required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been by Borrower hereunder is available publicly but is not delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of in the Compliance Certificates required by Section 6.2(a)(ii)time frame provided herein.
(b) Within twenty (20) 45 days after the last day of each month when quarter during which any Obligations were owing from Borrower to Bank and with each Advance request (if no Obligations are outstanding on the Borrowing Base Formula regarding date of such Advance is applicablerequest), Borrower will deliver to Bank a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in the form of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.Exhibit C.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver So long as Borrower is not subject to Bankthe reporting requirements of Sections 12 or 15 of the Securities and Exchange Act, as amended, Borrower shall deliver to Lenders: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Lenders; (ii) a Compliance Certificate as soon as available, but no later than one hundred eighty (180) days after the last day of Borrower's fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Lenders; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board Board of directorsDirectors consistent in form and detail with those provided to Borrower's venture capital investors as soon as available, together with any related business forecasts used but no later than sixty (60) days after Board approval; and (iv) budgets, sales projections, operating plans or other financial information reasonably requested by Lenders.
(b) In the event that the Borrower's stock becomes publicly held, Borrower shall deliver to Lenders, within five (5) days of filing, copies of or electronic links to (in the preparation case of such annual financial projections; electronic links being provided to Lenders, Borrower shall still be required to submit to Lenders the applicable compliance certificate in the form of Exhibit F) all statements, reports and notices made available to Borrower's security holders or to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission.
(ivc) In addition, Borrower shall deliver to Lenders:
(i) 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 ($500,000 100,000.00) or more; and (vii) budgets, sales projections, operating plans or such other financial information Bank as Lenders may reasonably requests. Borrower's 10K, 10Q, and 8K reports required request from time 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)time.
(bd) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank Lenders a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in the form of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.Exhibit F.
Appears in 1 contract
Sources: Loan and Security Agreement (SGX Pharmaceuticals, Inc.)
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three five (35) days after filing with the Securities and Exchange Commission or 45 Commission, Borrower’s Annual Report on Form 10-K (and in no event later than 90 days after each Borrower’s fiscal year end), and Quarterly Report on Form 10-Q (and in no event later than 50 days after Borrower’s fiscal quarter end period, the (except for Borrower's ’s fourth fiscal quarter for which no 10K, 10Q, and 8K reports, as applicable-Q shall be due)); (ii) a Compliance Certificate together with delivery of the 10-K and 10Q 10-Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's ’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) a prompt report of any legal actions pending or to Borrower’s knowledge threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of $500,000 750,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Notwithstanding the requirements in (i) and (v) above, Borrower shall provide to Bank (unless such information has been already provided in the 10-K and 10-Q above, as applicable)
(1) Borrower's 10K’s audited consolidated financial statements for each fiscal year prepared under GAAP, 10Qconsistently applied, together with an opinion on such financial statements from a nationally-recognized, independent, certified public accounting firm as soon as such financial statements are available, but not later than 90 days after Borrower’s fiscal year end, and 8(2) company prepared consolidated quarterly balance sheets, cash flow and income statements covering Borrower’s consolidated operations for each fiscal quarter, not later than fifty (50) days after the end of each such fiscal quarter. Borrower’s 10-K and 10-Q 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 link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within If there any outstanding Obligations, within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date)) and (ii) a schedule containing a description of deferred revenues.
(c) Within thirty (30) days after the last day of each month, deliver to Bank a cash balance report, including account statements detailing cash management types of investments held and maturity dates, together with a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the financial covenants set forth in this Agreement.
(d) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s reasonable expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing continuing. The Borrower shall use commercially reasonable efforts to assist Bank may conduct such audits at such frequency as in completing an Initial Audit with results satisfactory to Bank in its sole and absolute discretion may determine from time to timeno later than 90 days after the date hereof.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each calendar month, a company prepared consolidated balance sheet, income, and cash flow statement covering Borrower’s consolidated operations during such period, prepared in accordance with GAAP (except for the absence of footnotes and subject to year end adjustments), consistently applied, in a form acceptable to Bank and certified by a Responsible Officer; (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower’s fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank (except that with respect to Borrower’s 2003 Fiscal Year, such annual financial projectionsstatements shall be delivered no later than August 15, 2004); (ivc) 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, if applicable, all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission; (d) 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (ve) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within thirty (b) Within twenty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (payable. Borrower shall deliver to Bank with the monthly financial statements, a Compliance Certificate signed by invoice date).
(c) Allow 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 ’s Accounts and appraise Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default such audits or appraisals will be conducted no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank and shall not, in its sole discretion may determine from time to timeany case, cost more than $2,000 per audit or appraisal.
Appears in 1 contract
Financial Statements, Reports, Certificates. (i) Borrower shall deliver to Bank:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within ninety (390) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank;
(b) 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 related business forecasts used in holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with the preparation Securities and Exchange Commission;
(c) promptly upon receipt of such annual financial projections; (iv) notice thereof, a prompt report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be likely to result in damages or costs to Borrower or any Subsidiary of One Hundred Fifty Thousand Dollars ($500,000 150,000) or more; and ;
(vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requests. Borrower's 10K, 10Q, and 8K reports required request from time 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 link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii)time.
(be) Within twenty (20i) prior to any Credit Extensions other than FX Forward Contracts, at a time when no Credit Extensions other than FX Forward Contracts are outstanding, and (ii) within thirty (30) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablein which any Credit Extensions other than FX Forward Contracts are outstanding, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of Exhibit C hereto, together with (i) aged listings of accounts receivable and accounts payable (by invoice date)receivable.
(cf) Allow at the same times as delivery of its Forms 10-Q and its annual financial statements to Bank, a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto.
(ii) Bank shall have a right from time to time hereafter, upon reasonable prior notice, to audit Borrower's Collateral Accounts at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) when Liquidity under Section 6.12 is less than 2.5 to 1.0, as soon as available, but in any event within thirty (30) days after the end of each month, a company prepared balance sheet and income statement covering Borrower's consolidated operations during such period, certified by a Responsible Officer; (b) as soon as available, but no later than the earlier to occur of three in any event within ninety (390) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) within five (5) 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 Form 10-K and 10-Q filed with the Securities and Exchange Commission;
(d) 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 ($500,000 100,000) or more; (e) prompt notice of any material change in the composition of the Intellectual Property Collateral, including, 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 that materially adversely effects the value of the Intellectual Property Collateral: and (vf) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank with the quarterly financial statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date)Exhibit D hereto.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Sources: Loan and Security Agreement (Spatial Technology Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within twenty five (325) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during such period, certified by an officer of Borrower reasonably acceptable to Bank; (b) as soon as available, but in any event within ninety (90) days after the end of Borrower's fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivc) 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 ($500,000 100,000) or more; and (vd) such budgets, sales projections, operating plans or other financial information as Bank may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
Within fifteen (b) Within twenty (2015) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in substantially the form of EXHIBIT C hereto, together with (i) aged listings of accounts receivable and accounts payable payable. Within twenty (25) days after the last day of each month, Borrower shall deliver to Bank with the monthly financial statements a Compliance Certificate signed by invoice date).
(c) Allow a Responsible Officer in substantially the form of EXHIBIT D hereto. Bank shall have a right from time to audit Borrower's time hereafter to examine the Collateral at Borrower's expense, with the first of provided that such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall examinations will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than every six (6) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower agrees to deliver to Foothill: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within forty five (345) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections month during each of Borrower's fiscal years (except for the following fiscal year month of June which shall be sixty (on 60) days), a quarterly basis) as approved by company prepared balance sheet, income statement, and cash flow statement covering Borrower's board of directors, together with any related business forecasts used in the preparation of operations during such annual financial projections; (iv) 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 $500,000 or moreperiod; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty as soon as available, but in any event within ninety (2090) days after the last day end of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expensefiscal years, financial statements of Borrower for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Foothill and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP, together with a certificate of such accountants addressed to Foothill stating that such accountants do not have knowledge of the existence of any event or condition constituting an Event of Default, or that would, with the first passage of such audits to be completed no later than March 2time or the giving of notice, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or constitute an Event of Default has occurred Default. Such audited financial statements shall include a balance sheet, profit and loss statement, and cash flow statement, and, if prepared, such accountants' letter to management. If Borrower is continuing Bank may conduct a parent 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 audits at such frequency related entity separately, and on a consolidated basis. Together with the above, Borrower also shall deliver to Foothill Borrower's Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower with the Securities and Exchange Commission, if any, as Bank in soon as the same are filed, or any other information that is provided by Borrower to its sole discretion may determine from time shareholders, and any other report reasonably requested by Foothill relating to timethe Collateral and financial condition of Borrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Action Industries Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower will deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three (3) days after filing with the Securities Exchange Commission or 45 days after the last day of each quarter end periodquarter, the a company prepared consolidated balance sheet and income statement covering Borrower's 10K, 10Q, consolidated operations during the period certified by a Responsible Officer and 8K reports, as applicablein a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than 120 days after the last day of Borrower's fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm reasonably acceptable to Bank; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by in form and substance commensurate with those provided to Borrower's board of directorsdirectors or utilized by Borrower's executive management, together with any related business forecasts used in the preparation of such annual financial projectionsform and substance satisfactory to Bank; (iv) within 5 days of filing, copies of all statements, reports and notices made available to Borrower's security holders or to any holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission (the "SEC") (other than those reports on Form 10-K, 10-Q or 8-K (relating to certification) that are otherwise publicly available through the SEC's EDGAR system); (v) a prompt report of any legal actions pending claim, proceeding, litigat▇▇▇, or investigation in the future threatened or instituted against Borrower or any Subsidiary that could which would reasonably be expected to result in damages or costs to Borrower or any Subsidiary of $500,000 or more, exclusive of litigation the potential liability in connection with which is fully insured against; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) 45 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablequarter, Borrower will deliver to Bank with the quarterly financial statements a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date)Compliance Certificate.
(c) Allow Borrower will allow Bank to audit Borrower's Collateral at Borrower's expense, with and the first of charge therefor shall be $750 per person per day (or such audits to be completed no later higher amount as shall represent Bank's then current standard charge for the same), plus reasonable out-of-pocket expenses. In the event Borrower and Bank schedule and audit more than March 2, 200610 days in advance, and Borrower seeks to reschedule the audit with results acceptable less than 10 days written notice to Bank, then (without limiting any of Bank's rights and remedies) Borrower shall pay Bank a cancellation fee of $1,000 plus any out-of-pocket expenses incurred by Bank to compensate Bank for the anticipated costs and expenses of cancellation. Such The results of audits shall will be satisfactory to Bank, and audits will be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every year unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeshall have occurred.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, the a company prepared consolidated and consolidating balance sheet and income statement covering Borrower's 10K, 10Q, ’s consolidated and 8K reports, as applicableconsolidating operations for such month certified by a Responsible Officer and in a form acceptable to Bank; (ii) a Compliance Certificate as soon as available, but no later than one hundred fifty (150) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm acceptable to Bank in its reasonable discretion; (iii) within 45 five (5) days after the end of each fiscal yeardelivery, annual financial projections for the following fiscal year copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt, (on a quarterly basisiv) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation event that Borrower becomes subject to the reporting requirements under the Securities Exchange Act of such annual financial projections1934, as amended, within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission or a link thereto on Borrower’s or another website on the Internet; (ivv) 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 its Subsidiaries of One Hundred Thousand Dollars ($500,000 100,000) or more; (v) prompt notice of an event that materially and adversely affects the value of the intellectual property; and (vvi) budgets, sales projections, operating plans or and other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty thirty (2030) days after the last day of each month month, when the Borrowing Base Formula regarding Advance is applicableAdvances have been requested and/or are outstanding, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date)) and (ii) perpetual inventory reports for the Inventory valued on a first-in, first-out basis at the lower of cost or market (in accordance with GAAP) or such other inventory reports as are requested by Bank in its good faith business judgment.
(c) Within thirty (30) days after the last day of each month, when Advances have been requested and/or are outstanding, deliver to Bank with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing compliance with the financial covenants set forth in this Agreement.
(d) Allow Bank to audit Borrower's ’s Collateral at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if no more often than once every six (6) months unless a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three five (35) days after filing with the Securities and Exchange Commission or 45 50 days after each quarter end period(other than fiscal year end) or 90 days after fiscal year end, the Borrower's ’s 10Q and 10K, 10Q, and 8K reports, as applicablerespectively; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors), together with any related business forecasts used in the preparation of such annual financial projections, provided that Bank shall keep such information confidential pursuant to Section 12.8 below; (iv) 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 $500,000 1,000,000 or more, provided that Bank shall keep such information confidential pursuant to Section 12.8 below; and (v) within 15 business days of Bank’s request, such budgets, sales projections, operating plans or other financial information as Bank reasonably requests, provided that Bank shall keep such information confidential pursuant to Section 12.8 below. Each of Borrower's ’s 10K, 10Q, K and 8K 10Q reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered to Bank on the date on which Borrower files each such report on the Securities and Exchange Commission’s E▇▇▇▇ system or posts such report or provides a link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) 30 days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officerits monthly balance sheet, with (i) aged listings of accounts receivable and accounts payable (by invoice date)provided that Bank shall keep such information confidential pursuant to Section 12.8 below.
(c) Allow Bank Bank, but only if in its discretion it finds necessary, to audit Borrower's ’s Collateral at Borrower's ’s expense; provided, with the first of that, in no event shall such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if more often than once every twelve months unless a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver Borrowers shall deliver the following to Bank: (ia) as soon as available, but no later than the earlier to occur of three in any event within fifteen (315) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 business days after the end of each calendar month, a company prepared consolidated balance sheet, income, and cash flow statement covering Borrowers’ consolidated operations during such period, prepared in accordance with GAAP, consistently applied, in a form acceptable to Bank and certified by a Responsible Officer, except that monthly financial statements may omit substantially all footnotes that would normally be required to be included in GAAP financial statements; (b) as soon as available, but in any event within forty-five (45) days after the end of each quarter, consolidated financial statements of Borrowers prepared in accordance with GAAP, consistently applied, and reviewed by an independent certified public accounting firm reasonably acceptable to Bank; (c) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrowers’ fiscal year, annual audited consolidated financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrowers prepared in accordance with GAAP, consistently applied, together with any related business forecasts used in the preparation an unqualified opinion on such financial statements of such annual financial projectionsan independent certified public accounting firm reasonably acceptable to Bank; (ivd) copies of all statements, reports and notices sent or made available generally by Borrowers to its security holders or to any holders of Subordinated Debt and, if applicable, all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission; (e) promptly upon receipt of notice thereof, a prompt 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 Fifty Thousand Dollars ($500,000 50,000) or more; and (vf) such budgets, sales projections, operating plans or plans, other financial information Bank reasonably requests. including information related to the verification of a Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing ’s Accounts as Bank may conduct such audits at such frequency as Bank in its sole discretion may determine reasonably request from time to time.
Appears in 1 contract
Financial Statements, Reports, Certificates. (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three thirty (330) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end periodmonth, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower and each of its Subsidiary’s operations during such month certified by a Responsible Officer and in a form acceptable to Bank (the Borrower's 10K, 10Q, and 8K reports, as applicable“Monthly Financial Statements”); (ii) within five (5) Business Days of filing, copies of all statements, reports and notices made available to Borrower’s common stock holders as a Compliance Certificate together group and all reports on Form 10-K, 10-Q and 8 K filed with delivery of the 10K Securities and 10Q reportsExchange Commission; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board of directors, together with any related business forecasts used in the preparation of such annual financial projections; (iv) 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 ($500,000 100,000.00) or more; (iv) prompt notice of (A) any material change in the composition of the Intellectual Property, (B) the registration of any copyright, including any subsequent ownership right of Borrower in or to any copyright, patent or trademark not previously disclosed in writing to the Bank, and (C) Borrower’s knowledge of an event that could reasonably be expected to materially and adversely affect the value of the Intellectual Property; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required requested by Section 6.2(a)(ii)Bank.
(b) Within twenty thirty (2030) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, deliver to Bank with the Monthly Financial Statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible OfficerOfficer in the form of Exhibit B.
(c) Allow Bank, at reasonable times on one Business Days’ notice (unless an Event of Default has occurred) to audit Borrower’s Collateral, including, but not limited to, Borrower’s Accounts, at Borrower’s expense (with the charge therefor being $850 per person per day plus reasonable out-of-pocket expenses); provided, however, prior to the occurrence of an Event of Default, Borrower shall be obligated to pay for not more than one (i1) audit per year. After the occurrence of an Event of Default, Bank may audit Borrower’s Collateral, including, but not limited to Borrower’s Accounts, at Borrower’s expense and at Bank’s sole and exclusive discretion and without notification and authorization from Borrower.
(d) Upon Bank’s request, provide a written report respecting any Financed Receivable, if payment of any Financed Receivable does not occur by its due date and include the reasons for the delay.
(e) Provide Bank with, as soon as available, but no later than twenty (20) days following each Reconciliation Period, an aged listings listing of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results in form acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Financial Statements, Reports, Certificates. Until such time as Borrower is a publicly reporting company, Borrower shall deliver to each Lender:
(a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared balance sheet, income statement and cash flow statement covering Borrower's operations during such period, certified by Borrower's president, treasurer or chief financial officer (a "Responsible Officer"); (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower's fiscal year, annual audited financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower's board statements of directorsBorrower prepared in accordance with GAAP, together with an unqualified opinion on such financial statements of a nationally recognized or other independent public accounting firm reasonably acceptable to Agent; and (c) such other financial information as Lenders may reasonably request from time to time. From and after such time as Borrower becomes a publicly reporting company, Borrower shall deliver to each Lender promptly as they are available and in any related business forecasts used in event: (x) at the preparation time of filing of Borrower's Form 10-K with the Securities and Exchange Commission after the end of each fiscal year of Borrower, the financial statements of Borrower filed with such annual Form 10-K; and (y) at the time of filing of Borrower's Form 10-Q with the Securities and Exchange Commission after the end of each of the first three fiscal quarters of Borrower, the financial projections; statements of Borrower filed with such Form 10-Q. In addition, Borrower shall deliver to each Lender (ivi) promptly upon becoming available, copies of all statements, reports and notices sent or made available generally by Borrower to all of its security holders, (ii) immediately upon receipt of notice thereof, a prompt report of any legal actions pending action, proceeding or threatened against governmental investigation involving 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 ($500,000 100,000) or more; , (iii) no less than thirty (30) days prior to Borrower's incurrence of any Indebtedness for borrowed money in excess of One Hundred Thousand Dollars ($100,000), written notice thereof describing in reasonable detail the terms and conditions thereof, and (viv) budgets, sales projections, operating plans or such other financial information Bank as Lenders may reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine request from time to time.
Appears in 1 contract
Sources: Equipment Loan and Security Agreement (Egenera, Inc.)
Financial Statements, Reports, Certificates. Borrower shall deliver to Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each fiscal year, annual financial projections for the following fiscal year (on a quarterly basis) as approved by of Borrower's board fiscal quarters during each of directorsBorrower's fiscal years, together with any related business forecasts used in the preparation of a company prepared balance sheet and profit and loss statement covering Borrower's operations during such annual financial projections; (iv) 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 $500,000 or moreperiod; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty as soon as available, but in any event within ninety (2090) days after the last day end of each month when of Borrower's fiscal years, financial statements of Borrower for each such fiscal year, audited by independent certified public accountants acceptable to Lender. Notwithstanding the Borrowing Base Formula regarding Advance is applicableforegoing, Lender reserves the right to require Borrower to provide Lender with company prepared financial statements on a monthly (rather than quarterly) basis. All such annual financial statements shall include a balance sheet and profit and loss statement, together with the accountants' letter to management. Borrower shall also deliver Borrower's Form 10-Qs, 10-Ks or 8-Ks, and any other filings made by Borrower with the Securities and Exchange Commission, if any, as soon as the same become available, and any other report reasonably requested by Lender relating to Bank the Collateral or the financial condition of Borrower, including financial projections, and a duly completed Borrowing Base Certificate certificate signed by a Responsible Officerthe chief financial officer or chief executive officer of Borrower to the effect that all reports, with (i) aged listings statements or computer prepared information of accounts receivable any kind or nature delivered or caused to be delivered to Lender under this Section 6.5 fairly present the financial condition of Borrower and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with that there exists on the first date of delivery of such audits certificate to be completed Lender no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default condition or event which constitutes an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timeDefault.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Lender: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within thirty (330) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, a company prepared balance sheet, income statement and cash flow statement covering Borrower’s and Subsidiaries’ operations during such period, certified by Borrower’s president, treasurer or chief financial officer (each, a “Responsible Officer”); (b) as soon as available, but in any event within one hundred twenty (120) days after the end of Borrower’s fiscal year, annual if Borrower ceases to be a reporting company for purposes of the Securities Exchange Act of 1934, as amended, or ceases to file financial projections for statements with the following SEC, audited combined financial statements of Borrower prepared in accordance with GAAP, together with an unqualified opinion on such financial statements of a nationally recognized or other independent public accounting firm reasonably acceptable to Lender; (c) as soon as available, but in any event within ninety (90) days after the end of Borrower’s fiscal year (on a quarterly basis) as approved by or the date of Borrower's ’s board of directors’ adoption, together with any related business forecasts used in Borrower’s operating budget and plan for the preparation of such annual financial projectionsnext fiscal year; (ivd) promptly as they are available and in any event (x) at the time of filing of Borrower’s Form 10-K with the Securities and Exchange Commission after the end of each fiscal year of Borrower, the financial statements of Borrower filed with such Form 10-K; and (y) at the time of filing of Borrower’s Form 10-Q with the Securities and Exchange Commission after the end of each of the first three fiscal quarters of Borrower, the financial statements of Borrower filed with such Form 10-Q. and (e) such other financial information as Lender may reasonably request from time to time. In addition, Borrower shall deliver to Lender (i) promptly upon becoming available, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders; and (ii) immediately upon receipt of notice thereof, a prompt report of any material legal actions ****** — Material has been omitted and filed separately with the Commission pending or threatened against Borrower or any Subsidiary or the commencement of any action, proceeding or governmental investigation involving Borrower or any Subsidiary is commenced that could is reasonably expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Fifty Thousand Dollars ($500,000 or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii150,000).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Sources: Venture Loan and Security Agreement (Pharmasset Inc)
Financial Statements, Reports, Certificates. (a) Deliver to Bank: :
(i) as soon as available, but no later than the earlier to occur of three five (35) days Business Days after filing with the Securities Exchange Commission or 45 days after each quarter end period(the “SEC”), the Borrower's SFE’s 10-K, 10Q, 10-Q and 8-K reports, as applicable; ,
(ii) together with SFE’s 10-K filing, its consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm,
(iii) a Compliance Certificate together (delivered with delivery of the 10-K and 10Q reports; 10-Q reports (iiias applicable));
(iv) within 45 forty-five (45) days after the end of each fiscal yearyear and upon any material amendment, annual financial cash projections for the following fiscal year (on a quarterly basis) as approved by Borrower's presented to SFE’s board of directors, together with any related business forecasts used in directors (the preparation of such annual financial projections; “SFE Board”);
(ivv) 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 Five Hundred Thousand Dollars ($500,000 500,000.00) or more; and (vvi) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's ’s 10-K, 10Q10-Q, and 8-K reports and financial statements required to be delivered pursuant to Section Sections 6.2(a)(i) and (ii) shall be deemed to have been delivered on the date on which Borrower posts files such report with the SEC or provides a link thereto on Borrower's ’s or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty With each Advance request (20) days after and if any Advance has been taken and has not been repaid by Borrower in full, with the last day filing of each month when the Borrowing Base Formula regarding Advance is applicableSFE’s 10-K and 10-Q reports), deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible Officer, with (i) aged listings of accounts receivable and accounts payable (by invoice date).
(c) Within forty-five (45) days after the last day of each fiscal quarter, (i) quarterly cash flow projection reports, in form and substance acceptable to Bank, in its reasonable discretion; and (ii) quarterly Net Asset Value Reports.
(d) Allow Bank to audit the location and the composition of Borrower's Collateral ’s Collateral, at Borrower's ’s expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing continuing; provided, however, Bank may conduct agrees that such audits at such frequency as Bank in its sole discretion may determine from time to timewill only be conducted while there are outstanding Advances under the Revolving Line.
Appears in 1 contract
Sources: Loan and Security Agreement (Safeguard Scientifics Inc)
Financial Statements, Reports, Certificates. (a) Deliver Borrower shall deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three forty five (345) days after filing with the Securities Exchange Commission or 45 days after last day of each quarter end quarter, a company prepared consolidated balance sheet and income statement covering Borrower's consolidated operations during the period, the Borrower's 10K, 10Q, in a form acceptable to Bank and 8K reports, as applicablecertified by a Responsible Officer; (ii) a Compliance Certificate as soon as available, but no later than ninety (90) days after the end of Borrower's fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with delivery of an unqualified opinion on the 10K and 10Q reportsfinancial statements from an independent certified public accounting firm acceptable to Bank; (iii) within 45 five (5) days after the end of each fiscal yearfiling, annual financial projections for the following fiscal year (on a quarterly basis) as approved by copies of all statements, reports and notices made available to Borrower's board security holders or to any holders of directorsSubordinated Debt and all reports on Form 10-K, together 10-Q and 8-K filed with any related business forecasts used in the preparation of such annual financial projectionsSecurities and Exchange Commission ("SEC"); (iv) 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 Five Hundred Thousand Dollars ($500,000 500,000.00) or more; and (v) budgets, sales projections, operating plans or other financial information Bank reasonably requests. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicablemonth, Borrower shall deliver to Bank a duly completed Borrowing Base Certificate signed by a Responsible OfficerOfficer in the form of Exhibit C, with (i) aged listings of accounts receivable and accounts payable (by invoice date)receivable.
(c) Allow Within forty five (45) days after the last day of each quarter, Borrower shall deliver to Bank with the quarterly financial statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Bank has the right to audit Borrower's Collateral Accounts at Borrower's expense, with but the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to timecontinuing.
Appears in 1 contract
Financial Statements, Reports, Certificates. Borrower shall deliver to Servicing Agent: (a) Deliver to Bank: (i) as soon as available, but no later than the earlier to occur of three in any event within fifteen (315) days after filing with the Securities Exchange Commission or 45 days after each quarter end period, the Borrower's 10K, 10Q, and 8K reports, as applicable; (ii) a Compliance Certificate together with delivery of the 10K and 10Q reports; (iii) within 45 days after the end of each month, agings of accounts receivable and accounts payable, in a form reasonably acceptable to Servicing Agent and certified by a Responsible Officer; (b) within fifteen (15) 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 Form 10-K (including audited annual financial statements and an unqualified opinion (except for a "going concern" exception) from Borrower's independent certified public accountants), l0-Q (including quarterly financial statements) and 8-K filed with the Securities and Exchange Commission; (c) as soon as available, but in any event within sixty (60) days of the last day of each fiscal quarter, Guarantor's quarterly financial statements; (d) as soon as available, but in any event within one hundred twenty (120) days of the last day of each fiscal year, audited annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrowerstatements of Guarantor and an unqualified opinion from Guarantor's board of directors, together with any related business forecasts used in the preparation of such annual financial projectionsindependent certified public accountants; (ive) 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 ($500,000 100,000) or more; and (vf) such budgets, sales projectionsfinancial forecasts, operating plans or other financial information Bank as Lenders may reasonably requestsrequest from time to time. Borrower's 10K, 10Q, and 8K reports required to be delivered pursuant to Section 6.2(a)(i) shall be deemed to have been delivered on the date on which Borrower posts such report or provides a link thereto on Borrower's or another website on the Internet; provided, that Borrower shall provide paper copies to Bank of the Compliance Certificates required by Section 6.2(a)(ii).
(b) Within twenty (20) days after the last day of each month when the Borrowing Base Formula regarding Advance is applicable, deliver to Bank Servicing Agent with the quarterly financial statements a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer, with (i) aged listings Officer in substantially the form of accounts receivable and accounts payable (by invoice date)Exhibit D hereto.
(c) Allow Bank to audit Borrower's Collateral at Borrower's expense, with the first of such audits to be completed no later than March 2, 2006, and with results acceptable to Bank. Such audits shall be conducted at a frequency that Bank shall determine in its reasonable discretion, provided that if a Default or an Event of Default has occurred and is continuing Bank may conduct such audits at such frequency as Bank in its sole discretion may determine from time to time.
Appears in 1 contract
Sources: Loan and Security Agreement (Integrated Packaging Assembly Corp)