Common use of Accounts Receivable Clause in Contracts

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.

Appears in 2 contracts

Samples: Stock Purchase Agreement (TMP Worldwide Inc), Stock Purchase Agreement (TMP Worldwide Inc)

AutoNDA by SimpleDocs

Accounts Receivable. SCHEDULE 3.15 is a trueAccounts Receivable Balance per Aging Report Assigned To Xxxxx Fargo Capital Finance Less Ineligibles (detailed on page 2) Eligible Accounts Receivable - - Accounts Receivable Availability before Sublimit(s) Total Collateral Availability - - Suppressed Availability - - Availability before Reserves Total Credit Line 350,000,000.00 Last 90 day Collections - - Letter of Credit Balance As of: Loan Ledger Balance As of: Additionally, correct the undersigned hereby certifies and complete listing represents and aging warrants to the Secured Parties on behalf of the Company's accounts receivable Borrowers that (i) the representations and warranties of each Borrower or its Subsidiaries contained in the Credit Agreement or in the other Loan Documents is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality in the text thereof) on and as of the last day of the last full calendar month preceding date hereof and the date hereof determined in accordance with GAAP consistently applied of any requested extension of credit as though made on and determined in a manner consistent with the presentation in the Financial Statements. All as of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, date (except to the extent that reserves for doubtful accounts have been established such representations and warranties relate soley to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality in the Company text thereof) as of such earlier date, (ii) no Default or Event of Default has occurred and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto is continuing on the date hereof. Promptly , nor will any thereof occur after giving effect to the Closing Date but in no event later than thirty request above, and (30iii) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging all of the Company's accounts receivable foregoing is true and correct as of the day immediately preceding effective date of the Closing Date determined calculations set forth above and that such calculations have been made in accordance with GAAP consistent the requirements of the Credit Agreement. Authorized Signer To: Xxxxx Fargo Bank, National Association 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Compliance Certificate dated ____________ __, 20__ Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement dated as of [June ___], 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”) by and among DEX MEDIA, INC., a Delaware corporation, YP LLC, a Delaware limited liability company, XXXXXXXXXXX.XXX LLC, a Delaware limited liability company, YP ADVERTISING & PUBLISHING LLC, a Delaware limited liability company, PRINT MEDIA LLC, a Delaware limited liability company (each individually referred to as a “Borrower”, and individually and collectively, jointly and severally, referred to as the “Borrowers”), DEX MEDIA HOLDINGS, INC., a Delaware corporation (“Parent”), CERBERUS YP DIGITAL BLOCKER LLC, a Delaware limited liability company, CERBERUS YP BLOCKER LLC, a Delaware limited liability company, YP HOLDINGS LLC, a Delaware limited liability company, PRINT MEDIA HOLDINGS LLC, a Delaware limited liability company, YP INTERMEDIATE HOLDINGS CORP., a Delaware corporation, YP WESTERN HOLDINGS CORP., a Delaware corporation, YP SOUTHEAST HOLDINGS CORP., a Delaware corporation, YP MIDWEST HOLDINGS CORP., a Delaware corporation, YP CONNECTICUT HOLDINGS CORP., a Delaware corporation, PLUSMO HOLDINGS CORP., a Delaware corporation, and INGENIO HOLDINGS CORP., a Delaware corporation, as guarantors, the lenders party thereto as “Lenders” (each of such Lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Xxxxx Fargo Bank”), as administrative agent for each Secured Party, Xxxxx Fargo Bank and PNC BANK, NATIONAL ASSOCIATION, a national banking association (“PNC Bank”), as joint lead arrangers, joint book runners, and co-collateral agents, and PNC Bank, as syndication agent. Capitalized terms used herein and not otherwise defined herein shall have the presentation meanings ascribed to them in the Financial Statements (the "Closing Date Receivables"), Credit Agreement. Pursuant to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As Section 5.1 of the Closing DateCredit Agreement, the Closing Date Receivables have arisen undersigned Financial Officer of Dex Media, Inc., as Administrative Borrower, hereby certifies in bona fide arm's length transactions such capacity and not in the ordinary course of business and are valid and binding obligations his individual capacity as of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.hereof that:

Appears in 2 contracts

Samples: Credit Agreement (Thryv Holdings, Inc.), Credit Agreement (Thryv Holdings, Inc.)

Accounts Receivable. SCHEDULE 3.15 Section 4.16 of the Disclosure Schedules sets forth a full and complete list of the Accounts Receivable at the Effective Date and at the Closing Date (net of any reserves shown thereon and net of any Accounts Receivable collected since the Effective Date and prior to Closing and as increased by any work-in-process billed and converted to Accounts Receivable). Each Accounts Receivable is a true, true and correct and complete listing and aging statement of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied account for goods delivered to or services actually performed for and determined in a manner consistent with the presentation in the Financial Statements. All of accepted by such accounts receivable have arisen in bona fide arm's length transactions account debtor in the ordinary course of business materially consistent with past practice. As of the Effective Date, the obligors to which the receivables relate are not in or subject to a bankruptcy or insolvency proceeding, and none of the receivables has been made subject to an assignment for the benefit of creditors. All receivables listed in Section 4.16 of the Disclosure Schedules (net of any reserves shown thereon and net of any Accounts Receivable collected since the Effective Date and prior to Closing) (i) are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims existing, and (ii) represent monies due for goods sold and delivered or set-offs and are collectible in full services rendered in the ordinary course of business within 120 days materially consistent with past practice, and (iii) no material portion of such receivables will be subject to any refunds or adjustments or any defenses, rights of set-off, assignment, restrictions, security interests or other Encumbrances following entry of the relevant invoice dateSale Order and application of Section 363(f) of the Bankruptcy Code. Except as reflected in Section 4.16 of the Disclosure Schedules (including any reserves reflected therein), except to (x) there are no disputes regarding the extent that reserves collectability of a material portion of such receivables and (y) such receivables are adequately reserved for doubtful accounts have been established by the Company cancellations and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onbad debt, and are in both cases, consistent with presentation in, the Financial Statements attached hereto on the date hereofGAAP. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging Sellers have not factored any of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesreceivables.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (SAExploration Holdings, Inc.)

Accounts Receivable. SCHEDULE 3.15 is a true, correct All of the trade accounts receivable and complete listing and aging any other similar right to receive payments arising out of sales made in the ordinary course with respect to the Company's accounts receivable business (the "Accounts Receivable") as of the last day Balance Sheet Date are reflected on the Balance Sheet. The Accounts Receivable of the last full calendar month preceding Company reflected on the date hereof determined in accordance with GAAP consistently applied Balance Sheet, and determined in a manner consistent with the presentation Accounts Receivable which are reflected in the Financial Statements. All books and records of such accounts receivable the Company and which have arisen from the period from the Balance Sheet Date to and including the Closing Date (and such books and records accurately reflect in all material respects all Accounts Receivable which have arisen during such period), (i) have arisen or will arise solely in bona fide arm's length transactions by the Company in the ordinary course of business and are valid and binding obligations the operation of the account debtors. Such business, (ii) represent or will represent upon their creation, valid obligations due and owing to the Company, except for (A) the reserves for doubtful accounts receivable are not subject reflected in the Balance Sheet (which reserves have been established in accordance with GAAP and consistent with past practice of the Company) and (B) with respect to counterclaims or set-offs Accounts Receivable arising after the Balance Sheet Date, the reserves for doubtful accounts established on the Company's books and are collectible records in full accordance with GAAP and in the ordinary course of the Company's business within 120 days consistent with past practice, (iii) are or will be on the Closing Date enforceable in accordance with their terms, and (iv) are not or will not be subject to any deduction, defense, set-off or counterclaim, and further subject to normal allowances, deductions and customary discounts consistent with past practices of the relevant invoice dateCompany. Except as set forth on Schedule 2.24(a), except to the extent that reserves for doubtful accounts have been established by Knowledge of the Company and Seller, there are set forth on SCHEDULE 3.15 no disputes between the Company and any account debtor with respect to any Accounts Receivable and neither the Company nor Seller is aware of any such account debtor's status or condition which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver could impair its ability to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined pay its Accounts Receivable in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables")their respective terms. Since October 28, to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by 2001 the Company and are set forth on has not cancelled, compromised, settled, released, waived, written-off or expensed any Accounts Receivable or accelerated the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% collection of the total face amount of the Closing Date Receivablesany Account Receivable.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Hathaway Corp), Stock Purchase Agreement (Owosso Corp)

Accounts Receivable. SCHEDULE 3.15 is a true(a) At the Closing, correct and complete listing and aging the accounts receivable of the Company's accounts receivable Company and its Subsidiaries as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date ReceivablesAccounts Receivable"), less a reserve placed in a sub-account of the Escrow in an amount equal to be appended as part ten percent (10%) of SCHEDULE 3.15 hereto. SCHEDULE 3.15 their face amount (the "A/R Reserve Escrow"), shall be deemed amended to include such listing upon delivery to Buyer thereofdetermined. As of the Closing Datedate four (4) months (the "Collection Period") following the Closing, Buyer shall determine in good faith the Closing Date Receivables have arisen in bona fide arm's length transactions in amount, if any, by which the ordinary course Accounts Receivable exceed the actual collection of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims such Accounts Receivable after applying any applicable customer deposits or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected credits made or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect given prior to the Closing Date Receivables exceed 1% with respect to such Accounts Receivable or the transactions giving rise thereto (the "Accounts Receivable Deficiency") at the expiration of such Collection Period. Buyer shall, within twenty (20) days following the expiration of such Collection Period, provide the Sellers with reasonably satisfactory evidence of the total face amount of the Accounts Receivable Deficiency and the components thereof, and subject to the provisos below, shall cause the Company and its Subsidiaries, or their successors or assigns, to assign to the Sellers any such Accounts Receivable which have not been collected within the Collection Period, and any rights to interest and/or penalties relating thereto, provided that: (i) Buyer may elect to cause the Company to retain any such Accounts Receivable, in which event the aggregate amounts of such Accounts Receivable shall be excluded in determining the Accounts Receivable Deficiency; or (ii) Buyer may elect to return the uncollected Accounts Receivable to the Sellers at their book value to determine the Accounts Receivable Deficiency. -4- 10 (b) Except where (i) a customer that owes an Account Receivable is on a COD basis on the day of the Closing, or (ii) Buyer in good faith, causes the Company or its Subsidiaries, or their successors in interest, to convert a customer to COD basis after Closing, the first payments received by the Company or its Subsidiaries, or their successors in interest, from such customer shall be applied to the payment of the oldest outstanding balance of such customer's account. Payments made to the Company or its Subsidiaries, or their successors in interest, by any such customer for products sold by the Company or its Subsidiaries, or their successors in interest, on a COD basis shall not be applied to the Accounts Receivable that existed prior to the Closing, but shall be retained exclusively by the Company or its Subsidiaries, or their successors in interest. Buyer agrees to notify Sellers at the time it causes the Company or its Subsidiaries, or their successors in interest, to place any customer on a COD basis. (c) Buyer agrees to use its best efforts to collect Accounts Receivable, but shall not be required to cause the Company or its Subsidiaries to institute legal action for any collection. (d) On or about the date three (3) months after the Closing Date ReceivablesDate, Buyer shall provide Sellers with a status report setting forth in reasonable detail Buyer's collections of, and collection efforts with respect to, the Accounts Receivable and confer with Sellers regarding appropriate steps to be taken to collect unpaid Accounts Receivable. Within twenty-five (25) days after Sellers' receipt of Buyer's written notice of the Accounts Receivable Deficiency, Buyer shall receive from the A/R Reserve Escrow the Accounts Receivable Deficiency, with interest on such Accounts Receivable Deficiency, as earned on such amount under the A/R Reserve Escrow. In the event that the A/R Reserve Escrow is insufficient to satisfy the Accounts Receivable Deficiency, then such insufficiency shall be deducted from the Escrow Fund. In the event the amount of the A/R Reserve Escrow exceeds the Accounts Receivable Deficiency, then the Escrow Agent shall promptly transfer the excess to the Sellers' Representative Escrow and Buyer shall so instruct the Escrow Agent.

Appears in 1 contract

Samples: Stock Purchase Agreement (Heritage Propane Partners L P)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging Borrower will (a) inform Bank immediately of the Company's rejection of goods, claims made or delay in delivery or performance in regard to any account or contract right upon which Borrower has based availability for Revolving Line Advances or if any account receivable previously scheduled, listed or referred to in any certificate, statement or report by Borrower and upon which Borrower is basing availability for Revolving Line Advances ceases to be an Eligible Receivable; (b) adjust the borrowing base calculation under the Revolving Line to reduce the availability for Revolving Line Advances by the amount of any account with respect to which Borrower is required to give Bank notice pursuant to the foregoing SUBSECTION (a) and repay any Out-Of-Formula Advance resulting therefrom; (c) make no change in any account upon which Borrower has based availability for Revolving Line Advances, unless such change is contemporaneously reflected in the borrowing base calculation; (d) furnish to Bank all information received by Borrower affecting the financial standing of any account debtor whose account or contract right has been specifically assigned to Bank; (e) pay Bank the amount loaned against any account or contract right if the goods are returned by purchaser or the contract is canceled or terminated or adjust the borrowing base calculation to reduce the availability for Revolving Line Advances by the amount of such account and repay any Out-Of-Formula Advance resulting therefrom; (f) immediately notify Bank if any of its accounts receivable as arise out of contracts with the United States or any department, agency or instrumentality thereof, and if such amount is to be an Eligible Receivable use reasonable commercial effects to execute any instruments and take any steps required by Bank in order that all monies due and to become due under such contract shall be assigned to Bank and notice thereof given to the Government under the Federal Assignment of Claims Act; and (g) deliver to Bank, with appropriate endorsement or assignment, any instrument or chattel paper representing an account or contract right. Any permission granted to Borrower by Bank to omit any of the last day requirements of this SECTION 7.25 may be revoked by Bank at any time. Borrower will, if requested by Bank (a) give Bank assignments, in form acceptable to Bank, of specific accounts or groups of accounts and monies due and to become due under specific contracts and specific general intangibles; (b) furnish to Bank a copy, with such duplicate copies as Bank may request, of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied invoice applicable to each account specifically assigned to Bank or arising out of a contract right, bearing a statement that such account has been assigned to Bank and determined such additional statements as Bank may require; (c) xxxx its records evidencing its accounts in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject satisfactory to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except Bank so as to the extent that reserves for doubtful show which accounts have been established assigned to Bank; (d) furnish to Bank satisfactory evidence of the shipment and receipt of any goods specified by Bank and the Company performance of any services or obligations covered by accounts or contracts in which Bank has a security interest; (e) pay Bank the unpaid portion of any account or contract right upon which Borrower has based availability for Revolving Line Advances if (i) such account is not paid promptly after its maturity, (ii) an account debtor does not accept the goods or services, (iii) any petition under the Bankruptcy Code or any similar federal or state statute is filed by or against a purchaser, or (iv) Bank shall at any time reject the account as unsatisfactory; and are set forth on SCHEDULE 3.15 until such payment is made by Borrower, Bank may retain any such account or contract right as security and which reserves have been adequately reflected onmay charge any deposit account of Borrower for any such amounts; (f) join with Bank in executing a financing statement, notice, affidavit, security agreement, assignment or similar instrument, in form satisfactory to Bank, and are consistent with presentation insuch continuation statements and other instruments as Bank may from time to time request and pay the cost of filing the same in any public office deemed advisable by Bank to perfect the liens and security interests granted therein; (g) give Bank such financial statements, reports, certificates, lists of purchasers (showing names, addresses, and amounts owing) and other data concerning its accounts, contracts, collections, inventory, general intangibles and other matters as Bank may from time to time request; (h) segregate cash proceeds of Collateral so that they may be identified readily, and deliver the Financial Statements attached hereto same to the Bank at such time or times and in such manner and form as the Bank may direct; (i) furnish such witnesses as may be necessary to establish legal proof of the Collateral or records relating to the Collateral; and (j) obtain from any owner, encumbrancer, processor, or other person having an interest in the property where any Collateral is located, written consent to Bank's removal of the Collateral therefrom, without liability on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging part of the Company's accounts receivable as Bank to such owner, encumbrancer, processor or other person, or from any such owner, encumbrancer, processor or other person such waivers of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation any interest in the Financial Statements (Collateral as the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesBank may require.

Appears in 1 contract

Samples: Revolving Credit, Term Loan and Security Agreement (Merrimac Industries Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct Purchaser shall cause New Roche and complete listing and aging each Subsidiary ------------------- to use its reasonable efforts to collect all Accounts Receivable reflected on the Closing Balance Sheet. Contemporaneously with the delivery of the Company's accounts receivable as Closing Balance Sheet, Vendors shall deliver to Purchaser a list of all such Accounts Receivable reflected on the Closing Balance Sheet, and details related thereto including reserves reflected on the Closing Balance Sheet. Any amounts collected by New Roche or any Subsidiary from any debtor of such Accounts Receivable shall be imputed firstly to the oldest Accounts Receivable from such debtor; provided that if a payment of any of the last day Accounts Receivable is contested, in whole or in part, by the debtor thereof, then any amounts collected by New Roche or the Subsidiary from such debtor shall be imputed to the next oldest uncontested Account Receivable from such debtor. Purchaser shall have no obligation to cause New Roche or any Subsidiary to institute suit to collect any such Accounts Receivable. Purchaser shall use its reasonable efforts to ensure that New Roche and the Subsidiaries do not compromise any Accounts Receivable without Vendors' consent. Purchaser and Vendors may agree to compromise Accounts Receivable if each of Xx. Xxxxxxx X. DeLuca and Xx. Xxxxxx Xxxxx, or their respective successors, agree that it is in the last full calendar month preceding best interests of New Roche or any Subsidiary to do so and agree on to how such compromise will require amendments to the application of this Section or any other provision of this Agreement. If any Accounts Receivable remain uncollected on (i) the date hereof determined the First EBIT Payment, if any, is required to be made and such Accounts Receivable are required to be written-off under GAAP on or before such date or, in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice dateany case, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on (ii) the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafterSecond EBIT Payment, the Shareholders will deliver if any, is required to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements be made (the "Closing Date Uncollected Receivables"), then the amount of such Uncollected Receivables, less (a) the amount of any unused reserves provided for Accounts Receivable on the Closing Balance Sheet; (b) the actual income Tax reduction available, if any, to be appended New Roche or the applicable Subsidiary in the year of the write-off of such Uncollected Receivable as part a result of SCHEDULE 3.15 hereto. SCHEDULE 3.15 such write-off; and (c) the actual amount of GST, QST or other sales Tax reimbursements or credits actually received by New Roche or the Subsidiary as a result of the write off of such Uncollected Receivables, (the net amount of such Uncollected Receivables being the "Net Uncollected Receivables") shall be deemed amended payable by Vendors to include such listing upon delivery to Buyer thereofPurchaser solely by compensation (deduction and set off) against the First EBIT Payment, if any, and, if the First EBIT Payment is insufficient, the balance against the Second EBIT Payment, if any. As For greater certainty, if no First EBIT Payment and Second EBIT Payment are payable hereunder, no Net Uncollected Receivables shall be payable by Vendors. If, at the time of the Closing Datepayment of such Net Uncollected Receivables, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date actual income Tax benefit is not determinable because the Tax position of New Roche or the applicable Subsidiary has not been finalized, then the Parties shall in good faith estimate such benefit and, upon finalization of such Tax position, the Parties shall settle any outstanding balance promptly. Upon payment by Vendors to Purchaser of the full amount of the Net Uncollected Receivables, Purchaser shall cause New Roche or the Subsidiaries, as the case may be, to assign to such Vendors the Uncollected Receivables for One dollar (Cdn $1.00). If, after assignment of such Uncollected Receivables, New Roche or any Subsidiary receives any payment on account of any such Uncollected Receivables, then Purchaser shall cause New Roche or the Subsidiaries, as the case may be, to forthwith pay over the amount of such payment to such Vendors into the Collection Account. Any such Net Uncollected Receivables which are written off by New Roche or any Subsidiary during either of the periods covered by the EBIT Statements, shall not be deducted from the earnings of New Roche for the purposes of calculating EBIT during such periods, notwithstanding GAAP or Section 2.7.

Appears in 1 contract

Samples: Share Purchase Agreement (It Group Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueAccounts Receivable Balance per Aging Report Assigned To Xxxxx Fargo Capital Finance Less Ineligibles (detailed on page 3) Net Eligible Accounts Receivable — Accounts Receivable Availability after ENV application and the Credit and Unapplied Collection amount Advance Rate 85.0 % Net Available Accounts Receivable — Inventory Balance Assigned To Xxxxx Fargo Less Ineligibles (detailed on page 4) Eligible Inventory — Inventory Sublimit — Net Available Inventory — Total Availability before Reserves — Total Reserves — Total Availability after Reserves before Loan Balance and LCs — Total Credit Line 10,000,000 Suppressed Availability — Availability before Loan Balance — Letter of Credit Balance As of: — Loan Ledger Balance As of: Cash in-transit Adjusted Loan Balance — Net Availability — Additionally, correct the undersigned hereby certifies and complete listing represents and aging warrants to the Lender Group on behalf of the Company's accounts receivable Borrowers that (i) as of the last day date hereof, each representation or warranty contained in or pursuant to any Loan Document, any agreement, instrument, certificate, document or other writing furnished at any time under or in connection with any Loan Document, and as of the last full calendar month preceding effective date of any advance, continuation or conversion requested above is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), as of the date hereof determined in accordance with GAAP consistently applied hereof, as though made on and determined in a manner consistent with the presentation in the Financial Statements. All as of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, date (except to the extent that reserves for doubtful accounts such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date), (ii) each of the covenants and agreements contained in any Loan Document have been established by performed (to the Company extent required to be performed on or before the date hereof or each such effective date), (iii) no Default or Event of Default has occurred and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto is continuing on the date hereof. Promptly after the Closing Date but in no event later than thirty , and (30iv) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging all of the Company's accounts receivable foregoing is true and correct as of the day immediately preceding effective date of the Closing Date determined calculations set forth above and that such calculations have been made in accordance with GAAP consistent the requirements of the Credit Agreement. INFUSYSTEM HOLDINGS, INC. List of attachments with this Borrowing Base Certificate: INFUSYSTEM HOLDINGS USA, INC. Page 2 - Term Loan Limiter Calculation INFUSYSTEM, INC. Page 3 - Accounts Receivable Availability Detail FIRST BIOMEDICAL, INC. Page 4 - Inventory Availability Detail IFC, LLC Page 5 - Borrowing Base Detail By: Page 7 - FBI, Inc. Fixed Asset Rollforward Authorized Signer Page 8 - Capital Lease Reserve Calculation Table of Contents Date Name Infusystem Holdings, Inc. Each of the undersigned, INFUSYSTEM HOLDINGS, INC., a Delaware corporation (“Parent”), INFUSYSTEM HOLDINGS USA, INC., a Delaware corporation (“Holdings”), INFUSYSTEM, INC., a California corporation, and FIRST BIOMEDICAL, INC., a Kansas Corporation (collectively with INFUSYSTEM, INC. the “Borrowers”), pursuant to that certain Credit Agreement dated as of November 30, 2012 (as amended, restated, modified, supplemented, refinanced, renewed, or extended from time to time, the “Credit Agreement”), entered into among the Borrowers, the lenders signatory thereto from time to time and Xxxxx Fargo Bank, National Association, a national banking association as the administrative agent (in such capacity, together with its successors and assigns in such capacity, “Agent”), hereby certifies to Agent that the following items, calculated in accordance with the presentation terms and definitions set forth in the Financial Statements Credit Agreement for such items are true and correct, and that Borrowers are in compliance with and, after giving effect to any currently requested Revolving Loans, will be in compliance with, the terms, conditions, and provisions of the Credit Agreement. 70.0 % Net Recovery Percentage (based on “With Consignment & Rental Revenue” appraisal NOLV dated as of 7/31/2012) x 74.9 % InfuSystem Fixed Assets at Cost (based on book value of Rental Fleet less Fixed Asset Clearing) x Less Capital Lease Obligations Less Star Infusion Reserve Term A Limiter — Additionally, the "Closing Date Receivables"undersigned hereby certifies and represents and warrants to the Lender Group on behalf of Borrowers that (i) as of the date hereof, each representation or warranty contained in or pursuant to any Loan Document, any agreement, instrument, certificate, document or other writing furnished at any time under or in connection with any Loan Document, and as of the effective date of any advance, continuation or conversion requested above is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Datedate hereof, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course as though made on and as of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, such date (except to the extent that reserves for doubtful accounts are established by the Company such representations and are set forth on the Financial Statements and SCHEDULE 3.15warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date), (ii) each case as attached hereto of the covenants and agreements contained in any Loan Document have been performed (to the extent required to be performed on or before the date hereof or each such effective date), (iii) no Default or Event of Default has occurred and is continuing on the date hereof. The reserves for doubtful accounts established by , and (iv) all of the Company foregoing is true and reflected or to be reflected on SCHEDULE 3.15 or on correct as of the Financial Statements effective date of the calculations set forth above and that such calculations have been or shall be determined made in accordance with GAAP consistently applied the requirements of the Credit Agreement. INFUSYSTEM HOLDINGS, INC. List of attachments with this Borrowing Base Certificate: INFUSYSTEM HOLDINGS USA, INC. Page 2 - Term Loan Limiter Calculation INFUSYSTEM, INC. Page 3 - Accounts Receivable Availability Detail FIRST BIOMEDICAL, INC. Page 4 - Inventory Availability Detail IFC, LLC Page 5 - Borrowing Base Detail By: Page 7 - FBI, Inc. Fixed Asset Rollforward Authorized Signer Page 8 - Capital Lease Reserve Calculation Table of Contents To: Xxxxx Fargo Bank, National Association 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx 00000 Attn: Specialty Finance Manager Re: Compliance Certificate dated , 20 Ladies and are Gentlemen: Reference is made to that certain Credit Agreement dated as of November 30, 2012 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”) by and among the lenders identified on the signature pages thereof (each of such lenders, together with its successors and permitted assigns, a “Lender”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as lead arranger (in such capacity, together with its successors and assigns in such capacity, the “Lead Arranger”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as book runner (in such capacity, together with its successors and assigns in such capacity, the “Book Runner”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as syndication agent (in such capacity, together with its successors and assigns in such capacity, the “Syndication Agent”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as documentation agent (in such capacity, together with its successors and assigns in such capacity, the “Documentation Agent”), INFUSYSTEM HOLDINGS, INC., a Delaware corporation (“Parent”), INFUSYSTEM HOLDINGS USA, INC., a Delaware corporation (“Holdings”), INFUSYSTEM, INC., a California corporation (“Infusystem”), FIRST BIOMEDICAL, INC., a Kansas corporation (“FBI”; FBI and Infusystem each individually a “Borrower”, and individually and collectively, jointly and severally, the “Borrowers”). All initially capitalized terms used herein and not otherwise defined herein shall be consistent with have the presentation meanings ascribed to them in the Financial Statements, it being understood that in no event shall the reserve with respect Credit Agreement (including Schedule 1.1 thereto). Pursuant to the Closing Date Receivables exceed 1% Section 5.1 of the total face amount Credit Agreement, the undersigned officer of Parent hereby certifies as of the Closing Date Receivables.date hereof that:

Appears in 1 contract

Samples: Credit Agreement (InfuSystem Holdings, Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging Except as set forth in Schedule 3.1.21 of the Company's Seller Disclosure Schedules, the accounts and notes receivable as of the last day of Seller reflected on the last full calendar month preceding Business Financials, and all accounts and notes receivable arising subsequent to March 31, 2005 in connection with or directly or indirectly relating to the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in Business, (a) arose from bona fide arm's length sales transactions in the ordinary course of business business, consistent with past practice, and are payable on ordinary trade terms, (b) are legal, valid and binding obligations of the account debtors. Such accounts receivable respective debtors enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to the enforcement of creditors’ rights generally and by general principles of equity, (c) are not subject to counterclaims or any valid set-offs off or counterclaim, (d) have been collected or are fully collectible (provided that after Closing Buyer uses (and are collectible Buyer hereby covenants that it will use) commercially reasonable efforts to collect the same) before the date that is one hundred fifty (150) days after the applicable invoice date (provided that the account debtor has not affirmatively rejected such invoice), net of reserves according to their terms in full amounts not less than the aggregate amounts thereof carried on the Most Recent Balance Sheet; provided, however, that (i) Buyer shall provide Seller with written notice on a periodic basis (no less frequently than every fifteen (15) days) of any accounts receivable amounts existing at closing that have aged more than sixty (60) days from the date of the sale or other activity giving rise to such accounts receivable (it being the intent of the parties that Buyer shall be permitted to reasonably assist in the ordinary course collections efforts with respect thereto) and (ii) if any accounts receivable of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth Seller on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation is not ultimately collected in the Financial Statements time frames reflected above and Buyer exercises its indemnification rights pursuant to Section 6.1 hereof in connection with said uncollected accounts receivable, Buyer shall immediately thereafter transfer, assign and convey to Seller all right, title and interest in and to such uncollected Accounts Receivable, and (the "Closing Date Receivables")e) do not represent obligations for goods sold on consignment, to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not on approval or on a sale-or-return basis or subject to counterclaims any other repurchase or set-offs return arrangement other than customers’ rights to inspect goods upon receipt and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesreject nonconforming goods.

Appears in 1 contract

Samples: Asset Purchase Agreement (Halifax Corp)

Accounts Receivable. SCHEDULE 3.15 (a) Attached hereto, for information purposes as Schedule 5.23(a), is a true, correct and complete listing and aging list of the Company's accounts receivable of the Target Company and Subsidiaries as at 30 June 2006, indicating the amount of any provisions for bad debts (to the extent made consistently with past practice) with respect thereto. (b) All of the accounts receivable of the Target Company and the Subsidiaries as of the last day of the month immediately preceding the Closing Date are valid and, except as set forth in Schedule 5.23(b)(i), will be paid no later than twelve (12) months after their due date under their specified trade terms or, where no specified trade terms are applicable, the past accounting practice of the relevant Target Company and/or Subsidiary, net of any reserves made in accordance with past practices (to the extent consistent with applicable GAAP). For purposes of the indemnification provisions of Article VIII, (i) the difference (if any) between the aggregate amounts of such accounts receivable and the amounts actually collected within such periods shall be treated as a single Claim (as defined in Section 8.4) even if more than one request for payment of amounts due is made, and (ii) accounts receivable shall be taken into account for this purpose only if the Buyer or its Affiliates (including the Target Company and the Subsidiaries after the Closing) have attempted to obtain collection of such accounts receivable using collection procedures at least equivalent to those described in Schedule 5.23(b)(ii). The Controlling Shareholder shall provide the Buyer, not more than forty-five (45) days after the Closing Date, with a list of the accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance and reserves made with GAAP respect thereto, certified by Ernst & Young to be accurate, complete and consistent with past practices (to the presentation extent consistent with applicable GAAP). For this purpose, the Controlling Shareholder shall have reasonable access to the relevant documentation and to the employees in the Financial Statements Target Group who assisted with the preparation of the list of accounts receivable and reserves. (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of c) Until the Closing Date, all inter-company trade payables and all inter-company trade receivables, as the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims case may be, payable by or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by Target Company and/or the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or Subsidiaries shall continue to be reflected paid on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied their due date and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesunder normal commercial terms.

Appears in 1 contract

Samples: Stock Sale and Purchase Agreement (Allergan Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueAll outstanding Accounts Receivable reflected on the Balance Sheet (and which will be reflected on the Closing Date Balance Sheet) (i) have arisen (and will arise) in bona fide transactions, correct (ii) are (and complete listing and aging of will be) valid claims against account debtors for goods or services delivered or rendered, subject to no defenses, offsets or counterclaims, except as reserved against on the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined applicable Balance Sheet in accordance with GAAP consistently applied (the "RESERVES"), and determined in a manner consistent with the presentation (iii) are collectible in the Financial Statementsordinary course of Xxxxxxx Adler's business. All of such accounts receivable receivables arose (and will have arisen in bona fide arm's length transactions prior to the Closing Date) in the ordinary course of business and are valid and binding obligations none of the account debtorsobligors of such receivables have refused or given notice that it refuses to pay the full amount thereof. Such accounts receivable No receivables are not subject to counterclaims prior assignment, claim or set-offs other Lien, other than as described in SCHEDULE 5.7. Xxxxxxx Xxxxx has no liability for any refunds, allowances, returns or discounts in respect of products manufactured, processed, distributed, shipped or sold by it or for its account except to the extent of the reserves and are collectible liabilities therefor reflected on the applicable Balance Sheet in full accordance with GAAP and except as otherwise incurred in the ordinary course of business within 120 days business. Where receivables arose out of secured transactions, all financing statements and other instruments required to be filed or recorded to perfect the relevant invoice date, except to the extent that reserves for doubtful accounts title or security interest of Xxxxxxx Xxxxx have been established by the Company properly filed and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereofrecorded. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of After the Closing Date, the Closing Date Receivables Purchaser will not have arisen any obligation (whether in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject bankruptcy or insolvency proceedings or otherwise) to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established repay any receivables collected by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect Xxxxxxx Xxxxx prior to the Closing Date Receivables exceed 1% of the total face amount of or any receivables reflected on the Closing Date ReceivablesBalance Sheet which Purchaser collects after the Closing Date.

Appears in 1 contract

Samples: Asset Purchase Agreement (Lee Sara Corp)

Accounts Receivable. SCHEDULE 3.15 (a) RCI Shareholders have stated that it is not feasible to prepare a true, correct and complete listing and aging statement of the Company's accounts receivable Accounts Receivable as of the last Closing Date (or the business day immediately prior) and provide that update to OneLink on the Closing Date. Therefore, following the Closing Date, OneLink shall cause RCI to prepare a statement of Accounts Receivable as of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined Closing Date. The schedule of Closing Date Accounts Receivable shall be prepared according to past practice of RCI, but presented in a manner consistent acceptable to OneLink's auditors. The RCI Shareholders agree to cooperate with the presentation in the Financial Statements. All of RCI to cause such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject statement to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onbe prepared as promptly as practical, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no any event later than within thirty (30) days thereafter, after the Shareholders will deliver to Buyer a true, correct and complete listing and aging Closing Date. After preparation of the Company's accounts receivable updated Accounts Receivable statement, Cary Goldberg, as representative of the day immediately preceding RCI Shareholders, shall xxxxxx, xxx suggest appropriate changes to the Accounts Receivable statements within five (5) business days after receiving the updated statements. If there is any dispute regarding the Accounts Receivable statement, such dispute shall be resolved pursuant to Section 8.2 of this Agreement; provided, however, that any such dispute must be initiated by the RCI Shareholders on or before the date sixty (60) days after the Closing Date; and, further provided, that the listing of Closing Date Accounts Receivables shall become final (the "Final Closing Date Accounts Receivable") upon the earliest of the following events: (i) the mutual acceptance of OneLink and Cary Goldberg, (ii) sixty (60) days after the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), if Cxxx Xxxxxxxx has not delivered notice of a dispute pursuant to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve Xxxxxxx 0.0(a) with respect to the Closing Date Receivables exceed 1% Accounts Receivable, and (iii) the date any dispute with respect to the Closing Date Accounts Receivable is resolved pursuant to Section 8.2. (b) OneLink shall cause RCI to make diligent commercially reasonable efforts to collect the Accounts Receivables. In the event RCI fails to collect all of the total Accounts Receivable on the Closing Date Accounts Receivable List, the face amount of such Accounts Receivable and the Closing Date Receivablesactual amount of such Accounts Receivable collected shall be taken into account in determining whether an Accounts Receivable Shortfall exists, which would be subject to indemnification by the RCI Shareholders pursuant to Section 6.1 of this Agreement.

Appears in 1 contract

Samples: Acquisition Agreement (One Link 4 Travel Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging of the Company's (a) All accounts receivable as of the last day of the last full calendar month preceding the date hereof determined and work in accordance with GAAP consistently applied and determined in a manner consistent with the presentation process to be included in the Financial Statements. All of such accounts receivable have arisen in Effective Time Net Assets (the "Included Receivables") arose and/or will arise from bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtorsbusiness. Such All trade accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business by their terms generally due within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, after being invoiced by the Shareholders will deliver Company. All Included Receivables are expected to Buyer a true, correct and complete listing and aging be collected in full within one hundred eighty (180) days after Closing. SmartPros shall use reasonable efforts to effect the collection of the Company's accounts Included Re- ceivables, including regular periodic billing and follow-up collection by SmartPros' collection staff consistent with SmartPros' customary practices. Reasonable collection efforts shall not include referral to a collection agency or institution of legal proceedings. Where the Company shall have an account receivable outstanding from a client both with respect to services rendered prior to the Effective Time and with respect to services rendered after the Effective Time, any collections received from such client after the Effective Time shall be applied as designated by such client in the payment or in any memorandum or other writing accompanying the payment, and in the absence of such designation to the oldest then outstanding account receivable from such client. SmartPros shall provide Loscalzo, not less frequently than monthly, with updated collection rxxxxxx xn respect of the day immediately preceding Included Receivables, so that Loscalzo may monitor collections and, in her reasonable discretixx, xxxtiate follow-up contacts and otherwise participate in collection efforts with respect to clients who have past due outstanding balances. (b) If the amount of Included Receivables determined for purposes of the adjustment required by Section 2.03(e) (the "Final Receivables Balance") exceeds the actual amount collected by SmartPros or the Company with respect to the Included Receivables within one hundred eighty (180) days after the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (such excess referred to as the "Closing Date Uncollected Receivables"), Loscalzo shall pay to be appended as part SmartPros, by wire transfer of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Dateimmediately xxxxxxble funds, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except an amount equal to the extent that reserves for doubtful accounts are established Uncollected Receivables. If the actual amount collected by SmartPros or the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Included Receivables exceed 1% of the total face amount of within one hundred eighty (180) days after the Closing Date exceeds the Final Receivables Balance (such excess referred to as the "Excess Collections"), SmartPros shall pay to Loscalzo, by wire transfer of immediately available funds, an amoxxx xxxxl to the Excess Collections. Any amount payable under this Section 4.06(b) will be paid within ten (10) days after such determination. Excess Collections shall not include interest, penalties or any late charges applied to the Included Receivables after July 1, 2008. (c) In the event that SmartPros or the Company shall receive additional collections with respect to Included Receivables after the payment of Uncollected Receivables or Excess Collections in accordance with Section 4.06(b), SmartPros shall pay such additional collections to Loscalzo, by wire transfer of immediately available funds, withix xxxxxxn (15) days after such amounts are collected. At Loscalzo's request made at any time on or after February 1, 2010, XxxxxXxos shall assign to Loscalzo, for no additional consideration, any remaining outstanxxxx xxcollected Included Receivables, together with all relevant documents reasonably necessary for effecting collection.

Appears in 1 contract

Samples: Stock Purchase Agreement (SmartPros Ltd.)

Accounts Receivable. SCHEDULE 3.15 is a trueAccounts Receivable Balance per Aging Report Assigned To Xxxxx Fargo Capital Finance Less ineligibles (detailed on page 2) Net Eligible Accounts Receivable Accounts Receivable Availability before Sublimit(s) Inventory Balance Assigned To Xxxxx Fargo Capital Finance Less Ineligibles (detailed on page 3) Eligible Inventory Inventory Availability before Sublimit(s) Rent Reserve Motorala A/P Reserve Additional Availability Amount (Stretch) 7,500,000.00 Total Credit Line 100,000,000.00 Suppressed Availability Letter of Credit Balance As of: Loan Ledger Balance As of: Cash in-transit Adjusted Loan Balance *** Certain confidential information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. Additionally, correct the undersigned hereby certifies and complete listing represents and aging warrants to the Lender Group on behalf of the Company's accounts receivable Borrower that (i) as of the last day date hereof, each representation or warranty contained in or pursuant to any Loan Document, any agreement, instrument, certificate, document or other writing furnished at any time under or in connection with any Loan Document, and as of the last full calendar month preceding the effective date hereof determined of any advance, continuation or conversion requested above is true and correct in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, all material respects (except to the extent that reserves for doubtful accounts any representation or warranty expressly related to an earlier date), (ii) each of the covenants and agreements contained in any Loan Document have been established by performed (to the Company extent required to be performed on or before the date hereof or each such effective date), (iii) no Default or Event of Default has occurred and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto is continuing on the date hereof. Promptly , nor will any thereof occur after giving effect to the Closing Date but in no event later than thirty request above, and (30iv) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging all of the Company's accounts receivable foregoing is true and correct as of the day immediately preceding effective date of the Closing Date determined calculations set forth above and that such calculations have been made in accordance with GAAP consistent the requirements of the Credit Agreement. Authorized Signer List of attachments with this Borrowing Base Certificate: Page 2—Accounts Receivable Availability Detail Page 2b—Accounts Receivable Concentrations Page 2c—Accounts Receivable Dilution Page 3—Inventory Availability Detail Page 3a—Inventory Availability Detail Page 3b—Inventory Availability Summary *** Certain confidential information has been omitted and filed separately with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 heretoCommission. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have Confidential treatment has been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve requested with respect to the Closing Date Receivables exceed 1% omitted portions. Xxxxx Fargo Capital Finance, LLC as Agent 000 Xxxxx Xxxxxx Xxxxx Suite 3000 Chicago, Illinois 60606 Attention: Federal Signal Portfolio Manager Fax No.: (000) 000-0000 Reference is hereby made to that certain Credit Agreement, dated as of February 22, 2012 (as amended, restated, supplemented, or modified from time to time, the total face amount “Credit Agreement”), by and among the lenders party thereto (such lenders, together with their respective successors and assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, as agent for the Lenders (together with its successors and assigns in such capacity, “Agent”), and FEDERAL SIGNAL CORPORATION, a Delaware corporation (“Borrower”). Capitalized terms used herein but not specifically defined herein shall have the meanings ascribed to them in the Credit Agreement. Reference is also made to that certain [describe the Bank Product Agreement or Agreements] (the “Specified Bank Product Agreement [Agreements]”) dated as of [ ] by and between [identify the Closing Date ReceivablesLender or Affiliate of Lender] (the “Specified Bank Products Provider”) and [identify the Loan Party or Subsidiary].

Appears in 1 contract

Samples: Credit Agreement (Federal Signal Corp /De/)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging (a) The accounts receivable of the Company's Company shown on the 1996 Financial Statement or as shall be shown on the Closing Balance Sheet (collectively the "Accounts Receivable") represent or will represent genuine accounts receivable arising from sales actually made or services actually performed in the ordinary course of business. Unless paid prior to the Effective Date, the Accounts Receivable are or will be as of the last day Effective Date fully collectable and not subject to counterclaim or set- off (except to the extent that collectablity thereof may be subject to or affected by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other laws relating to or affecting the rights of credits generally) within 120 days of the last full calendar month preceding Effective Date without resort to litigation in an aggregate amount not less than the date hereof determined in accordance with GAAP consistently applied aggregate amount at which they are carried on the Closing Balance Sheet, net of aggregate reserves therefore and determined in a manner consistent with net of credits not reflected on the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions Closing Balance Sheet, if any, for returns or adjustments thereafter arising in the ordinary course of business and are valid and binding obligations of consistent with past practice. (b) Buyer shall cause Company to use all commercially reasonable efforts consistent with Company's past practices to collect the account debtorsAccounts Receivable (which shall not be deemed to require instituting litigation or using a collection agency). Such After the Effective Date, the Company shall be creating new accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course with customers of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date New Receivables"). Collections of receivables after the Effective Date shall be credited first to the Accounts Receivable and then to the New Receivables in the order that the receivables from such customer were created unless a customer, to be appended Buyer and Company's knowledge, acting in good faith, expressly disputes a prior receivable, unless a payment expressly identifies a specific invoice or unless it is apparent from the circumstances that the payment is being made against a particular invoice or invoices. (c) In the event Buyer asserts an indemnification claim with respect to a breach of Seller's representations and warranties as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 to Accounts Receivable and such claim is agreed to by Sellers or otherwise approved under the procedures set forth in this Agreement, then Buyer shall be deemed amended cause Company to include assign such listing upon delivery receivable to Sellers when and in such amounts actually paid to Buyer thereofby Sellers or offset from the Deferred Purchase Price for any indemnification claim under the Documents. As of In the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve an indemnification claim is asserted with respect to the Closing Date Receivables exceed 1% Accounts Receivable and such claim is not immediately paid by Sellers (whether because of the total face amount of "indemnity basket" or otherwise), then Buyer shall continue to use all commercially reasonable efforts to collect the Closing Date Receivablessubject Accounts Receivable and any amounts so collected shall be credited to the prior claim or otherwise accounted for as circumstances then require and as the parties agree.

Appears in 1 contract

Samples: Purchase Agreement (Steel Technologies Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueSchedule 1.2D when delivered will set forth an accurate, correct and complete listing and aging of all Seller Receivables reflected on the Company's accounts receivable as August 31 Balance Sheet and the September 30 Balance Sheet. All outstanding Seller Receivables reflected on the financial statements delivered to Buyer are, net of the last day financial statement reserves applicable thereto, due and valid claims against account debtors for goods or services delivered or rendered, collectible in full within thirty (30) days of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied delivery and determined in a manner consistent with the presentation in the Financial Statementssubject to no defenses, offsets or counterclaims. All of such accounts receivable have arisen in bona fide arm's length transactions Seller Receivables arose in the ordinary course of business and business. Except as set forth upon Schedule 1.2D, no Seller Receivables are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims prior assignment, claim, lien or set-offs and are collectible in full security interest. Except in the ordinary course of business within 120 days business, Seller has not incurred any liabilities to customers for discounts, returns, promotional allowances or otherwise. Seller has no liability for any refunds, allowances or returns in respect of products manufactured, published, processed, distributed, shipped or sold by or for the relevant invoice dateaccount of Seller on or prior to the Effective Date, except to the extent that of the reserves for doubtful accounts therefor to be reflected on the July 31 Balance Sheet, the August 31 Balance Sheet, the September 30 Balance Sheet and the Closing and Final Statements. Where Seller Receivables arose out of secured transactions, all financing statements and other instruments required to be filed or recorded to perfect the title or security interest of Seller have been established by the Company properly filed and are set forth on SCHEDULE 3.15 and which recorded. The reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include regarding such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are receivables set forth on the Financial Statements March 31 Balance Sheet and SCHEDULE 3.15, in each case as attached hereto to be set forth on the date hereof. The reserves for doubtful accounts established by July 31 Balance Sheet, the Company August 31 Balance Sheet, the September 30 Balance Sheet and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Closing and Final Statements have been or shall and will be determined computed in accordance with GAAP consistently applied and are and shall be generally accepted accounting principles calculated consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablespast practice."

Appears in 1 contract

Samples: Asset Purchase and Sale Agreement (Capital Industries Inc)

Accounts Receivable. SCHEDULE 3.15 is a true(a) For each Account with respect to which Advances are requested, correct and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereaftereach Advance is requested and made, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 such Account shall be deemed amended to include such listing upon delivery to Buyer thereof. As of an Eligible Account. (b) All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and Eligible Accounts are and shall be consistent true and correct and all such invoices, instruments and other documents, and all of Borrower’s Books are genuine and in all respects what they purport to be. All sales and other transactions underlying or giving rise to each Eligible Account shall comply in all material respects with all applicable laws and [†] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION governmental rules and regulations. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any Account Debtor whose accounts are Eligible Accounts in any Borrowing Base Statement. To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to all Eligible Accounts are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms. (c) For any item of Inventory consisting of Eligible Inventory in any Borrowing Base Report, such Inventory (i) consists of finished goods, in good, new, and salable condition, which is not perishable, returned, consigned, obsolete, not sellable, damaged, or defective, and is not comprised of demonstrative or custom inventory, works in progress, packaging or shipping materials, or supplies; (ii) meets all applicable governmental standards in all material respects; (iii) has been manufactured in compliance with the presentation Fair Labor Standards Act; (iv) is not subject to any Liens, except the first priority Liens granted or in favor of Bank under this Agreement or any of the other Loan Documents and Permitted Liens; and (v) is located in the Financial Statements, United States at the locations identified by Borrower in the Perfection Certificate where it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesmaintains Inventory (or at any location permitted under Section 7.2).

Appears in 1 contract

Samples: Loan and Security Agreement (NanoString Technologies Inc)

Accounts Receivable. SCHEDULE 3.15 is With respect to the Accounts Receivable, the Borrower represents and warrants that, unless otherwise indicated in writing by the Borrower: (a) all Accounts Receivable are genuine, are in all respects what they purport to be, are not evidenced by a truejudgment and are evidenced by only one, correct and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined if any, executed original instrument, agreement, contract, or document; (b) all Accounts Receivable represent undisputed bona fide transactions completed in accordance with GAAP consistently applied the terms and determined provisions contained in a manner consistent any documents or agreements related thereto; (c) the face amount shown on any schedule of Accounts Receivable heretofore or hereafter provided to the Bank and all invoices and statements delivered to the Bank with respect to any Accounts Receivable are or will be actually and absolutely owing to the presentation in Borrower and are not contingent for any reason; (d) to the Financial Statements. All best of such accounts receivable have arisen in bona fide armthe Borrower's length transactions knowledge, there are no set-offs, counterclaims, or disputes existing or asserted with respect to the Accounts Receivable, and the Borrower has not made any agreement with any account debtor for any deduction therefrom, except for discounts and allowances allowed by the Borrower in the ordinary course of its business and for prompt payment, all of which discounts or allowances are valid and binding obligations reflected in the calculation of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesinvoices to which such discounts or allowances relate; (e) to the best of the Borrower's knowledge, there are no facts, events, or conditions which in any way impair the validity or enforcement of the Accounts Receivable or tend to reduce the amount payable thereunder from the invoice face amount shown on any schedule of Accounts Receivable delivered to the Bank; (f) the Borrower has no knowledge of any fact or circumstance that would impair the validity or collectibility of the Accounts Receivable; and (g) the Accounts Receivable that the Borrower shall, expressly or by implication, request the Bank to treat as Eligible Accounts will, as of the time such request is made, conform in all requests to the conditions to be treated as Eligible Accounts.

Appears in 1 contract

Samples: Loan and Security Agreement (Cti Industries Corp)

Accounts Receivable. SCHEDULE 3.15 is a truePurchaser agrees that after the ------------------- Closing Date it will use its reasonable best efforts, correct and complete listing and aging consistent with Seller's past practices as disclosed to Purchaser by Seller prior to the date hereof, to collect all of the Company's outstanding accounts receivable as included in the Transferred Assets. Payments received from customers and credit returns shall be applied to the specific invoice designated by the customer paying or returning the same. Upon Purchaser's written request, Seller agrees to purchase from Purchaser any and all accounts receivable included in the Transferred Assets (the "CLOSING ------- RECEIVABLES") which have not been collected during the 180 days immediately ----------- following the Closing Date, to the extent that the uncollected amount of the last day of Closing Receivables exceeds an amount equal to (i) $25,000, plus (ii) Seller's reserves for bad debts reflected on the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Interim Statements. All of such accounts receivable have arisen in bona fide arm's length transactions , plus (iii) supplier credits, whether or not reserved, arising in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves Seller's Business for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect warranty related claims from sales prior to the Closing Date (the "RECEIVABLES ADJUSTMENT") in exchange for a purchase price equal to the ---------------------- Receivables exceed 1% of Adjustment (such purchase price being referred to herein as the total face "Receivables Adjustment Price"). Such notice shall include a statement indicating the amount of the Closing Date ReceivablesReceivables collected and an itemized list of the uncollected Closing Receivables as of such date. Upon Seller's payment of the Receivables Adjustment Price, Purchaser shall assign all of its rights to the uncollected Closing Receivables to Seller and Seller shall be entitled to all subsequent collections with respect to such receivables.

Appears in 1 contract

Samples: Purchase and Sale Agreement (New Pameco Georgia Corp)

Accounts Receivable. SCHEDULE 3.15 is At or as soon as practicable after the Closing, ------------------- VSDD will provide Acquisition with a true, correct and complete listing and aging statement of the Company's accounts receivable Accounts Receivable outstanding as of the last day Closing Date (the "Closing Receivables"), including a statement of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in 90-day Receivables. Acquisition agrees that for a manner consistent with the presentation in the Financial Statements. All period of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 ninety (90) days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date ReceivablesCollection Period"), it will use its good faith, best efforts, consistent with 4MC's general practices, to be appended as part of SCHEDULE 3.15 heretocollect the Closing Receivables. SCHEDULE 3.15 All payments received from clients having a Closing Receivable shall be deemed amended applied to include such listing client's oldest Closing Receivable unless otherwise designated in writing by such customer based upon delivery a bona fide dispute over prior receivables. Acquisition will on a monthly basis deliver to Buyer thereofVSDD a statement setting forth in reasonable detail the Closing Receivables collected during such period. As To the extent any such collection constitutes a 90-day Receivable, Acquisition shall remit such sum to VSDD together with such statement. At the end of the Collection Period, Acquisition shall turn over to VSDD the uncollected 90-day Receivables and thereafter have no obligations with respect thereto. VSDD may not make any effort to collect any Closing DateReceivables, whether or not 90-day Receivables; provided, however, that VSDD may seek to collect any 90-day Receivables turned over to VSDD at or after the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations end of the account debtors. Such accounts receivable Collection Period; and provided further that any 90-day Receivables from clients who are not subject to counterclaims or set-offs no longer clients of VSDD at Closing may be excluded by VSDD by denoting such exclusion upon the statement of Closing Receivables and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves such excluded Accounts Receivable may be pursued for doubtful accounts are established collection by the Company VSDD and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements Acquisition will have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve obligation with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesthereto.

Appears in 1 contract

Samples: Asset Purchase Agreement (Four Media Co)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof hereof, determined in accordance with GAAP generally accepted accounting principles consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice dateoffs, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Interim Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders Beneficiaries will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP generally accepted accounting principles consistent with the presentation in the Interim Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice dateoffs, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Interim Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Interim Financial Statements have been or shall be determined in accordance with GAAP generally accepted accounting principles consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.

Appears in 1 contract

Samples: Stock Purchase Agreement (TMP Worldwide Inc)

Accounts Receivable. SCHEDULE 3.15 (1) Seller is a truenot selling, correct and complete listing shall retain all right, title and aging of the Company's interest in and to all unpaid accounts receivable as of with respect to the last day of Facility which relate to the last full calendar month preceding period prior to the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such Closing Date, including, but not limited to, any accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except arising from rate adjustments which relate to the extent that reserves for doubtful accounts have been established by period prior to the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly Closing Date even if such adjustments occur after the Closing Date (“Seller’s A/R”). Buyer (i) shall not interfere with any of Seller’s rights with respect to the Seller’s A/R, including but not limited to, the right to collect the same and to enforce any and all of Seller’s rights with respect to Seller’s A/R; provided Seller shall not initiate any litigation for collections against parties who continue to be residents of the Facility after Closing without Buyer’s consent, which consent shall not be unreasonably withheld or delayed, and (ii) agrees that if it receives any proceeds with respect to the Seller’s A/R, Buyer will hold such proceeds in trust for Seller and shall promptly turn over those proceeds to Seller without demand, in the form received. (2) Within ten (10) business days following the Closing Date, Seller shall provide Buyer with a schedule setting forth by patient its outstanding accounts receivable with respect to the Facility as of the Closing Date. (3) In furtherance and not in limitation of the requirements set forth in Section 2.4, payments received by Buyer from and after the Closing Date from third party payors, including but not limited to Medicare, Medicaid, managed care and health insurance, shall be handled as follows: (a) If such payments specifically indicate on the accompanying remittance advice, or the parties otherwise agree, that they relate to the period prior to the Closing Date, the payments (if received by Buyer) shall be forwarded to Seller by Buyer, along with the applicable remittance advice, promptly, but in no event more than five (5) business days, after receipt thereof; (b) If such payments indicate on the accompanying remittance advice, or the parties otherwise agree, that they relate to the period on or after the Closing Date, they shall be retained by Buyer if received by Buyer, and paid to Buyer promptly but in no event later than thirty five (305) business days, if received by Seller; and (c) If the period(s) for which such payments are made is not indicated on the accompanying remittance advice, and the parties are unable to agree as to the periods for which such payments relate, the parties shall assume that each payment received within sixty (60) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding after the Closing Date determined in accordance with GAAP consistent with relates to the presentation in oldest outstanding unpaid receivables for reimbursement and, based on such assumption, the Financial Statements (portion thereof which relates to the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, period on and after the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied retained by Buyer and are and the balance shall be consistent with the presentation in the Financial Statementsremitted to Seller promptly, it being understood that but in no event more than five (5) business days, after receipt thereof. After said sixty (60) day period, such payments which fail to designate the period to which they relate shall be first applied to current balances with any excess applied to reduce pre-Closing balances and, based on such assumption, the reserve with respect portion thereof which relates to the post-Closing period shall be retained by or promptly (within five (5) business days) remitted to Buyer and the balance shall be retained by or promptly (within five (5) business days) remitted to Seller. (4) Any payments received within sixty (60) days after the Closing Date Receivables exceed 1% from or on behalf of the total face amount private pay patients with outstanding balances as of the Closing Date Receivableswhich fail to designate the period to which they relate, will first be applied to reduce the patients’ pre-Closing Date balances owed to Seller, with any excess applied to reduce any balances due for services rendered by Buyer after the Closing Date. (5) In the event the parties mutually determine that they misapplied any payment hereunder, or any remittance was made to the wrong party, the party that erroneously received the payment shall remit it to the other party promptly, but in no event more than five (5) business days, after the determination of misapplication is made. (6) The obligations of the parties to forward the accounts receivable payments pursuant to this Section 2.4 are absolute and unconditional and irrespective of any circumstances whatsoever which might constitute a legal or equitable discharge, offset, counterclaim or defense of the parties, the right to assert any of which is hereby waived.

Appears in 1 contract

Samples: Asset Purchase Agreement (Diversicare Healthcare Services, Inc.)

Accounts Receivable. SCHEDULE 3.15 is a true, correct The Accounts Receivable reflected on the Reference Balance 4.15 Sheet and complete listing and aging of the Company's accounts receivable as of Accounts Receivable arising after the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable Balance Sheet Date (a) have arisen in from bona fide arm's length healthcare or other transactions entered into by a Seller involving the sale of goods or the rendering of services in the ordinary course of business and are consistent with past practice; (b) constitute only valid and binding obligations claims of the account debtors. Such accounts receivable a Seller that are not subject to counterclaims or claims of set-offs and are collectible in full off or other defenses or counterclaims other than normal discounts accrued in the ordinary course of business within 120 days consistent with past practice; and (c) subject to a reserve for bad debts shown on the Reference Balance Sheet or, with respect to Accounts Receivable arising after the Balance Sheet Date, on the accounting records of the relevant invoice dateBusiness, except entitle Seller to collect in full for the extent that reserves for doubtful accounts have been established by sale of goods or the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging rendering of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions services in the ordinary course of business business. All Accounts Receivable, including payments or reimbursement from Government Programs and Private Programs, are valid deposited into the Transferred Seller Bank Accounts. Experimental Procedures. During the past five (5) years, Sellers and binding obligations the Facilities have 4.16 not performed or permitted the performance of the account debtors. Such accounts receivable are not subject to counterclaims any experimental or set-offs and are collectible in full research procedure or study involving patients in the ordinary course of business within 120 days of the relevant invoice date, except to the extent Facilities that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined were not authorized and/or conducted in accordance with GAAP consistently applied the policies and procedures of the Facilities that comply with applicable Law, including applicable U.S. Food and Drug Administration regulations. Certificates of Need. No application for any Certificate of Need, exemption certificate 4.17 or declaratory ruling (collectively, the “Applications”) has been made by any Seller with any Governmental Authority that is currently pending or open before such Governmental Authority or has been approved but relates to projects not yet completed. No Application filed by any Seller within the past three (3) years has been ultimately denied by any Governmental Authority or withdrawn by such Seller. Each Seller has properly filed all required Applications necessary to the Business, which PUBLIC COPY Applications are complete and shall be consistent with the presentation correct in the Financial Statements, it being understood that in no event shall the reserve all material respects with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.any and all improvements, projects, changes in services, zoning requirements, construction and equipment purchases, and other changes for which Approval is required under any applicable federal or state Law. Intellectual Property. 4.18

Appears in 1 contract

Samples: Asset Purchase Agreement

Accounts Receivable. SCHEDULE 3.15 is a true(a) TVA may periodically appraise USEC's creditworthiness and the credit support requirements described herein. USEC shall satisfy TVA's credit standards based on USEC's independent bond/credit ratings and supplying the credit support that may be found necessary to meet the credit rating specified by TVA in section (b) below under the column entitled Credit Rating Threshold. TVA may re-evaluate USEC's creditworthiness whenever it becomes aware of an adverse change in the USEC's credit standing. As long as USEC continues to meet TVA's standard for unsecured credit, correct and complete listing and aging no action will be taken. When an adverse change in USEC's credit standing causes USEC to no longer qualify for unsecured credit from TVA, TVA has the right to require credit support as specified herein. If USEC neither tenders the required security or deposit nor requests TVA to procure credit support on its behalf within five (5) calendar days of TVA's request, TVA may begin taking actions to reduce its exposure. (b) USEC shall enter into such security arrangement as specified in section (c) below, at the request of TVA, when USEC's credit appraisal does not meet the following threshold requirements using the lower of Standard & Poor's or Moody's corporate rating ("Credit Rating Threshold"): EXECUTION COPY Proprietary Information RATING: RATING: STANDARD & POOR'S/MOODY'S STANDARD & POOR'S/MOODY'S CREDIT RATING THRESHOLD AAA $50,000,000 AA+/Aa1 to AA-/Aa3 $40,000,000 A+/A1 to A-/A3 $25,000,000 BBB+/Baa1 to BBB-/Baa3 $15,000,000 BB+/Ba1 to BB-/Ba3 $5,000,000 B+/B1 to B3 $500,000 All other ratings $0 (c) USEC shall satisfy TVA's credit standards specified above by entering into any of the Companyforms of credit support below, reflecting the dollar amount determined to be at risk and the period of time during which it remains at risk: (i) A cash collateral account; or (ii) A standby irrevocable letter of credit issued by a bank or other financial institution acceptable to TVA; or (iii) At USEC's accounts receivable as of expense, a surety bond or a credit insurance policy or product procured by TVA, or at USEC's option, USEC, from an insurance company or other financial institution with at least an "A" bond rating from AM Best, or an "A" bond rating from Standard and Poor's, or a "B+" AM Best rating combined with being included on the last day of U.S. Treasury List, with a copy provided by the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except insurance company to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but beneficiary; or (iv) Security interest in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), collateral found to be appended satisfactory to TVA; or (v) A financial guarantee, acceptable to TVA, by another party or entity with a satisfactory credit rating as part described above; or (vi) Other mutually acceptable means of SCHEDULE 3.15 heretoproviding or establishing adequate security. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.EXECUTION COPY Proprietary Information

Appears in 1 contract

Samples: Power Contract (Usec Inc)

Accounts Receivable. SCHEDULE 3.15 is Buyer shall use commercially reasonable efforts (not including litigation or referral to a true, correct and complete listing and aging of the Company's accounts receivable as of the last day of the last collection agency) to collect all Accounts Receivable in full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are Seller’s past practices as expressly set forth on SCHEDULE 3.15 and which reserves have Section 5.14 of the Disclosure Schedule. Buyer shall not make any claim alleging a breach of Section 3.27 regarding the collectability of Accounts Receivable until the amount of uncollected Accounts Receivable (as described in Section 3.27) exceeds the sum of the Accounts Receivable reserve reflected in the Conclusive Net Working Capital Statement or the Post-Closing Working Capital Statement if the Conclusive Net Working Capital Statement has not been adequately reflected onfinalized. The oldest uncollected Accounts Receivables shall count against the reserve until it is exhausted. After the reserve is exhausted, and are uncollected Accounts Receivable may be recovered through a claim under the R&W Policy or a claim under the Escrow Agreement. Further, the funds held pursuant to the Escrow Agreement for purposes of this Section 5.14 may be distributed to Buyer for uncollected Accounts Receivable (as described in Section 3.27) up to the retention amount. No funds other than the $340,000 in the Escrow Account for such purpose shall be applied against the retention amount or disbursed in connection with any uncollected Accounts Receivable. Any remaining uncollected Accounts Receivable then counted against the retention amount under the R&W Policy shall be assigned to Seller at no cost. Notwithstanding anything contained herein to the contrary, unless consistent with presentation in, Seller’s past practices or unless applied against the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation reserve for Accounts Receivable reflected in the Financial Statements Conclusive Net Working Capital Statement, Buyer will not “xxxx-down,” settle, or negotiate any Accounts Receivable (in connection with making a claim alleging a breach of Section 3.27 regarding the "Closing Date Receivables")collectability of Accounts Receivable) without the prior consent of AETI, to which consent will not be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Dateunreasonably withheld, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims conditioned or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesdelayed.

Appears in 1 contract

Samples: Asset Purchase Agreement (American Electric Technologies Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging [ ]A. Accounts Receivable of the CompanyBusiness for work done, or goods sold to date of Closing (hereinafter, referred to as “Seller's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business Accounts Receivable”) shall be retained by Seller and are valid not assets conveyed to Buyer in this transaction. Buyer will forward to Seller any payments received by Buyer with respect to Seller's Accounts Receivable, will cooperate with Seller in providing any and binding obligations of the account debtors. Such accounts receivable are not subject all correspondence, or other documents received by Buyer with respect to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onSeller's Accounts Receivable, and are consistent will otherwise cooperate with presentation inSeller in enabling Seller to collect Seller's Accounts Receivable. [ X ]B. It is agreed that Seller's Accounts Receivable of $25,483.31 is included in Total Purchase Price. Details of these receivables include name, the Financial Statements attached hereto on the date hereofaccount number, amount and aging, and shall be delivered to Buyer at Closing. Promptly after the Closing Date but Any increase or decrease before Closing, as compared to this amount, shall adjust Total Purchase Price. Where applicable, any increase shall be added to Promissory Note owed to Seller, and if one does not exist then Seller agrees to finance this amount payable in no event later than n/a, (n/a) equal monthly installments, commencing thirty (30) days thereafterafter Closing, with interest at the rate of n/a% per annum, and a decrease shall reduce cash at closing. All Accounts Receivable transferred shall be fully guaranteed by Seller, and if uncollectible within 180 days, may be set-off against next payment(s) due from Promissory Note owed to Seller, where one exists. In the event that there is no Promissory Note owed to Seller, the Shareholders will deliver Parties agree that Closing Agent shall retain $n/a from Seller's closing proceeds for a period of n/a (n/a) days to Buyer a true, correct and complete listing and aging of the Companysecure Seller's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesindemnification responsibilities.

Appears in 1 contract

Samples: Asset Purchase Agreement (Epazz Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueAt the Closing, correct and complete listing and aging the accounts receivable of the Company's accounts receivable Company and its Subsidiaries as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date ReceivablesAccounts Receivable"), less a reserve placed in a sub-account of the Escrow in an amount equal to be appended as part ten percent (10%) of SCHEDULE 3.15 hereto. SCHEDULE 3.15 their face amount (the "A/R Reserve Escrow"), shall be deemed amended to include such listing upon delivery to Buyer thereofdetermined. As of the Closing Datedate four (4) months (the "Collection Period") following the Closing, Buyer shall determine in good faith the Closing Date Receivables have arisen in bona fide arm's length transactions in amount, if any, by which the ordinary course Accounts Receivable exceed the actual collection of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims such Accounts Receivable after applying any applicable customer deposits or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected credits made or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect given prior to the Closing Date Receivables exceed 1% with respect to such Accounts Receivable or the transactions giving rise thereto (the "Accounts Receivable Deficiency") at the expiration of such Collection Period. Buyer shall, within twenty (20) days following the expiration of such Collection Period, provide the Stockholder Representative with reasonably satisfactory evidence of the total face amount of the Accounts Receivable Deficiency and the components thereof, and subject to the provisos below, shall cause the Surviving Corporation and its Subsidiaries, or their successors or assigns, to assign to the Stockholder Representative any such Accounts Receivable which have not been collected within the Collection Period, and any rights to interest and/or penalties relating thereto, provided that: (i) Buyer may elect to cause the Surviving Corporation to retain any such Accounts Receivable, in which event the aggregate amounts of such Accounts Receivable shall be excluded in determining the Accounts Receivable Deficiency; or (ii) Buyer may elect to return the uncollected Accounts Receivable to the Stockholder Representative at their book value to determine the Accounts Receivable Deficiency. -6- 13 (b) Except where (i) a customer that owes an Account Receivable is on a COD basis on the day of the Closing, or (ii) Buyer in good faith, causes the Surviving Corporation or its Subsidiaries, or their successors in interest, to convert a customer to COD basis after Closing, the first payments received by the Surviving Corporation or its Subsidiaries, or their successors in interest, from such customer shall be applied to the payment of the oldest outstanding balance of such customer's account. Payments made to the Surviving Corporation or its Subsidiaries, or their successors in interest, by any such customer for products sold by the Surviving Corporation or its Subsidiaries, or their successors in interest, on a COD basis shall not be applied to the Accounts Receivable that existed prior to the Closing, but shall be retained exclusively by the Surviving Corporation or its Subsidiaries, or their successors in interest. Buyer agrees to notify the Stockholder Representative at the time it causes the Surviving Corporation or its Subsidiaries, or their successors in interest, to place any customer on a COD basis. (c) Buyer agrees to use its best efforts to collect Accounts Receivable, but shall not be required to cause the Surviving Corporation or its Subsidiaries to institute legal action for any collection. (d) On or about the date three (3) months after the Closing Date ReceivablesDate, Buyer shall provide the Stockholder Representative with a status report setting forth in reasonable detail Buyer's collections of, and collection efforts with respect to, the Accounts Receivable and confer with the Stockholder Representative regarding appropriate steps to be taken to collect unpaid Accounts Receivable. Within 25 days after the Stockholder Representative's receipt of Buyer's written notice of the Accounts Receivable Deficiency, Buyer shall receive from the A/R Reserve Escrow the Accounts Receivable Deficiency, with interest on such Accounts Receivable Deficiency as earned on such amount under the A/R Reserve Escrow. In the event that the A/R Reserve Escrow is insufficient to satisfy the Accounts Receivable Deficiency, then such insufficiency shall be deducted from the Escrow Fund. In the event the amount of the A/R Reserve Escrow exceeds the Accounts Receivable Deficiency, then the Escrow Agent shall promptly transfer the excess to the Stockholder Representative Escrow and Buyer shall so instruct the Escrow Agent.

Appears in 1 contract

Samples: Merger Agreement (Heritage Propane Partners L P)

Accounts Receivable. SCHEDULE 3.15 Accounts Receivable Balance per Aging Report Assigned To Xxxxx Fargo Capital Finance - Less Ineligibles (detailed on page 2) - Net Eligible Accounts Receivable - Accounts Receivable Availability before Sublimit(s) - Net Available Accounts Receivable after Sublimit(s) - Availability before Loan Balance - Confidential treatment is a true, correct and complete listing and aging being requested for portions of this document. This copy of the Company's accounts receivable document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and Exchange Commission. Letter of Credit Balance As of: 1/0/00 - Loan Ledger Balance As of: 1/0/00 - Cash in-transit Adjusted Loan Balance - Net Availability - Additionally, the undersigned hereby certifies and represents and warrants to the Lender Group on behalf of Borrower that (i) as of the last day date hereof, each representation or warranty contained in or pursuant to any Loan Document, any agreement, instrument, certificate, document or other writing furnished at any time under or in connection with any Loan Document, and as of the last full calendar month preceding effective date of any advance, continuation or conversion requested above is true and correct in all material respects (except to the extent any representation or warranty expressly related to an earlier date), (ii) each of the covenants and agreements contained in any Loan Document have been performed (to the extent required to be performed on or before the date hereof determined or each such effective date), (iii) no Default or Event of Default has occurred and is continuing on the date hereof, nor will any thereof occur after giving effect to the request above, and (iv) all of the foregoing is true and correct as of the effective date of the calculations set forth above and that such calculations have been made in accordance with the requirements of the Credit Agreement. Authorized Signer Page 2 — Accounts Receivable Availability Detail Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and Exchange Commission. To: Xxxxx Fargo Capital Finance, Inc. 0000 Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx 00000 Attn: Business Finance Division Manager Re: Compliance Certificate dated Ladies and Gentlemen: Reference is made to that certain AMENDED AND RESTATED CREDIT AGREEMENT (the “Credit Agreement”) dated as of , by and among the lenders identified on the signature pages thereof (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), XXXXX FARGO CAPITAL FINANCE, INC., a California corporation, as the arranger and administrative agent for the Lenders (“Agent”), Oclaro, Inc., (“Parent”) and Oclaro Technology Limited (the “Borrower”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 5.1 of the Credit Agreement, the undersigned officer of Parent hereby certifies, in such capacity, that: 1 The financial information of Parent and its Subsidiaries furnished in Schedule 1 attached hereto, has been prepared in accordance with GAAP consistently applied (except for year-end adjustments and determined the lack of footnotes), and fairly presents in all material respects the financial condition of Parent and its Subsidiaries. 2 Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a manner consistent review in reasonable detail of the transactions and condition of Parent and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 5.1 of the Credit Agreement. 3 Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default, except for such conditions or events listed on Schedule 2 attached hereto, specifying the nature and period of existence thereof and what action Parent and its Subsidiaries have taken, are taking, or propose to take with the presentation respect thereto. 4 The representations and warranties of Parent and its Subsidiaries set forth in the Financial Statements. All of such accounts receivable have arisen Credit Agreement and the other Loan Documents are true and correct in bona fide arm's length transactions in the ordinary course of business all material respects on and are valid and binding obligations as of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, date hereof (except to the extent that reserves for doubtful accounts have been established by the Company and are they relate to a specified date), except as set forth on SCHEDULE 3.15 Schedule 3 attached hereto. Confidential treatment is being requested for portions of this document. This copy of the document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of this document has been filed separately with the Securities and which reserves have been adequately reflected on, Exchange Commission. 5 Parent and its Subsidiaries are consistent in compliance with presentation in, the Financial Statements attached hereto applicable covenants contained in Section 7 of the Credit Agreement as demonstrated on the date Schedule 4 hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging Confidential treatment is being requested for portions of this document. This copy of the Company's accounts receivable document filed as an exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [***]. A complete version of the day immediately preceding the Closing Date determined in accordance with GAAP consistent this document has been filed separately with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business Securities and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesExchange Commission.

Appears in 1 contract

Samples: Credit Agreement (Oclaro, Inc.)

Accounts Receivable. SCHEDULE 3.15 is a true(1) Sellers are not selling, correct and complete listing shall retain all right, title and aging of the Company's interest in and to all unpaid accounts receivable as of with respect to the last day of Facilities which relate to the last full calendar month preceding period prior to the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such Closing Date, including, but not limited to, any accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except arising from rate adjustments which relate to the extent that reserves for doubtful accounts have been established by period prior to the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly Closing Date even if such adjustments occur after the Closing Date (“Sellers’ A/R”). Buyers (i) shall not interfere with any of Sellers’ rights with respect to the Sellers’ A/R, including but not limited to, the right to collect the same and to enforce any and all of Sellers’ rights with respect to Sellers’ A/R; provided Sellers shall not initiate any litigation for collections against parties who continue to be residents of the Facilities after Closing without Buyers’ written consent, which consent may be granted or withheld in Buyers’ sole and absolute discretion, and (ii) agree that if they receive any proceeds with respect to the Sellers’ A/R, Buyers will hold such proceeds in trust for Sellers and shall promptly turn over those proceeds to Sellers without demand, in the form received. If Sellers receive any amounts with respect to accounts receivable for services provided after the Closing of the Facilities, such amounts shall promptly, without demand (and in no event more than five (5) business days after receipt by Sellers) be forwarded to Buyers. (2) Not less than two (2) business days prior to the Closing Date, Sellers shall provide Buyers with a schedule setting forth by patient their outstanding accounts receivable with respect to the Facilities as of the Closing Date. (3) In furtherance and not in limitation of the requirements set forth in Section 2.4, payments received by Buyers from and after the Closing Date from third party payors, including but not limited to Medicare, Medicaid, managed care and health insurance, shall be handled as follows: (a) If such payments specifically indicate on the accompanying remittance advice, or the parties otherwise agree, that they relate to the period prior to the Closing Date, the payments shall be forwarded to Sellers by Buyers, along with the applicable remittance advice, promptly, but in no event later more than five (5) business days, after receipt thereof; (b) If such payments indicate on the accompanying remittance advice, or the parties otherwise agree, that they relate to the period on or after the Closing Date, they shall be retained by Buyers; and (c) If the period(s) for which such payments are made is not indicated on the accompanying remittance advice, and the parties are unable to agree as to the periods for which such payments relate, the parties shall assume that each payment received within sixty (60) days after the Closing Date relates to the oldest outstanding unpaid receivables for reimbursement and, based on such assumption, the portion thereof which relates to the period on and after the Closing Date shall be retained by Buyer and the balance shall be remitted to Sellers promptly, but in no event more than five (5) business days, after receipt thereof. After said sixty (60) day period, such payments which fail to designate the period to which they relate shall be first applied to post-Closing balances with any excess applied to reduce pre-Closing balances. (4) Any payments received by Buyers within thirty (30) days thereafter, after the Shareholders will deliver to Buyer a true, correct and complete listing and aging Closing Date from or on behalf of the Company's accounts receivable private pay patients with outstanding balances as of the day immediately preceding Closing Date which fail to designate the period to which they relate, will first be applied by Buyer to reduce the patients’ pre-Closing Date balances, with any excess applied to reduce any balances due for services rendered by Buyer after the Closing Date. (5) In the event the parties mutually determine that they misapplied any payment hereunder, the party that erroneously received the payment shall remit it to the other party promptly, but in no event more than five (5) business days, after the determination of misapplication is made. (6) For the first anniversary of the Closing Date determined in accordance with GAAP consistent with or until Sellers receive payment of all accounts receivable attributed to the presentation in operation of the Financial Statements (the "Closing Date Receivables"), Facilities prior to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice datewhichever is sooner, except to the extent that reserves for doubtful accounts are established by the Company and 20th day of each month, Buyers shall provide Sellers with a report setting forth all amounts received by Buyers during the preceding month with respect to Sellers’ A/R which are set forth on in the Financial Statements and SCHEDULE 3.15schedule provided by Sellers pursuant to Section 2.4, together with all supporting documentation. Sellers shall have the right to inspect all cash receipts of Buyers during weekday business hours in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or order to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent confirm Buyers’ compliance with the presentation in the Financial Statements, obligations imposed on it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesunder this Section.

Appears in 1 contract

Samples: Asset Purchase Agreement (Diversicare Healthcare Services, Inc.)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging The accounts receivable of the Company's accounts receivable as of Companies shown on the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied Balance Sheet Date, and determined in a manner consistent with the presentation those to be shown in the Financial Statements. All of such accounts receivable have arisen in , are, and will be, actual bona fide arm's length receivables from transactions in the ordinary course of business and are representing valid and binding obligations of others for the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected ontotal dollar amount shown thereon, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Balance Sheet Date determined in accordance with GAAP consistent with the presentation in the Financial Statements were not (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and presently are valid and binding obligations of the account debtors. Such accounts receivable are not not) subject to counterclaims or any recoupments, set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice dateoffs, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereofor counterclaims. The reserves for doubtful Purchaser expressly acknowledges that all accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statementsreceivable, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount as of the Closing Date Receivables(the “Pre-Closing A/R”), will be property of the Sellers and the Purchaser further acknowledges that it will have no claim to the Pre-Closing A/R. The Sellers shall have sole responsibility for collecting Pre-Closing A/R. The Sellers expressly acknowledge that all accounts receivable, following the Closing Date (the “Post-Closing A/R”), will be property of the Purchaser and the Sellers further acknowledge that they will have no claim to the Post-Closing A/R. Notwithstanding anything contained in this Section 4.12 to the contrary, the Sellers and Medical Resources shall retain control of the lockboxes for the facilities involved in this transaction for a period of 60 days following the Closing (the “Lockbox Period”). During the Lockbox Period, Medical Resources and the Sellers will cooperate with the Purchaser to ensure that Purchaser receives the Post-Closing A/R, and is able properly to document the financial information for the ongoing businesses at those facilities, by weekly reporting all receipts to the Purchaser, providing the Purchaser with copies of all applicable cash logs, and forwarding to the Purchaser any and all amounts, invoices or other materials allocated to Purchaser that are placed in such lockboxes. In addition, Sellers and Medical Resources will use their best efforts to ensure that Purchaser receives “information only” access to the lockbox accounts during the Lockbox Period. After the Lockbox Period, the Purchaser will cooperate with the Sellers and Medical Resources to ensure that the Sellers and Medical Resources continue to receive the Pre-Closing A/R, by weekly reporting all receipts to the Sellers and Medical Resources related to the Pre-Closing A/R, providing the Sellers and Medical Resources with copies of all applicable cash logs related to the Pre-Closing A/R, and forwarding to Medical Resources any and all amounts, invoices or other materials allocated to the Sellers and Medical Resources related to the Pre-Closing A/R that are placed in such lockboxes. In addition, the Purchaser will use its best efforts to ensure that the Sellers and Medical Resources receive “information only” access to the lockbox accounts after the Lockbox Period. At the end of the Lockbox Period, the Sellers and Medical Resources will execute such documentation and take such action as is necessary to transfer ownership and possession of the lockboxes to the Purchaser.

Appears in 1 contract

Samples: Securities Purchase Agreement (Axcess Medical Imaging Corp)

Accounts Receivable. SCHEDULE 3.15 is a true, correct Collections --------------------------------- (a) Commencing on and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of from the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in Buyer shall cause the ordinary course of business Company to make reasonably diligent and are valid and binding obligations continuing efforts to timely collect all accounts receivable of the Company reflected on the Closing Balance Sheet (the "Accounts Receivable"); provided, however, (i) the Company shall not ------------------- -------- ------- be obligated to continue to do business with any account debtors. Such accounts receivable are debtor if it believes that such continuation will not subject be in its best interests, and (ii) the Company will not be obligated to counterclaims incur any Extraordinary Collection Costs (as hereinafter defined), nor will the Company incur any Extraordinary Collection Costs or set-offs and are collectible compromise, settle or accept less than the full amount due in full in satisfaction of any account without the ordinary course of business within 120 days prior written approval of the relevant invoice dateSeller to be obtained in each case. As used herein, except "Extraordinary Collection Costs" means ------------------------------ direct out-of-pocket fees and expenses paid to outside debt collection agencies and/or attorneys for services in connection with the extent that reserves for doubtful accounts are established collection of the Accounts Receivable. (b) All monies received by the Company and are set forth from account debtors shall be credited to the account of the remitting debtor in the order of the longest outstanding indebtedness due on the Financial Statements and SCHEDULE 3.15account; provided, however, the -------- ------- Company shall not be obligated to credit such monies to any disputed amount of such accounts which the Seller reasonably agrees is in each case as attached hereto dispute. (c) Any amounts due on the date hereof. The reserves for doubtful accounts established Accounts Receivable which are not collected or realized by the Company and reflected or to be reflected on SCHEDULE 3.15 or on within one hundred twenty (120) days after the Financial Statements have been or date the respective Accounts Receivable were billed shall be determined deemed uncollectible and the Company shall have no further obligation to collect such amounts and the Seller shall, promptly upon demand by the Company, pay such amounts to the Company or its designee and the Company shall, upon such payment, assign to the Seller the specific accounts in accordance with GAAP consistently applied respect to which such payment is being made free and are clear of all security interests, liens, charges and shall be consistent with encumbrances. (d) In the presentation event that a court of competent jurisdiction in the Financial Statementsa proceeding under any federal or state bankruptcy, it being understood that insolvency or other similar law then in no event shall the reserve effect with respect to any account debtor shall order the Closing Date Receivables exceed 1% Company to repay any of the total face Accounts Receivable collected and credited to the account of such account debtor, the amount of such repayment(s), plus the Closing Date Receivablesamount of all the reasonable costs and expenses of the Company (including reasonable attorneys' fees) incurred and/or paid in such proceeding, shall become the obligation of the Seller to the Company, payable on demand of the Company and the Company shall, upon receipt of such payment, assign to the Seller, without recourse and against an appropriate indemnity in favor of the Company, any rights of the Company with respect to such bankruptcy proceedings.

Appears in 1 contract

Samples: Stock Purchase Agreement (Sonic Automotive Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueAccounts Receivable Balance per Aging Report Assigned To Xxxxx Fargo Capital Finance - Less Ineligibles (detailed on page 2) #N/A Eligible Accounts Receivable #N/A Accounts Receivable Availability before Sublimit(s) #N/A Inventory Balance Assigned To Xxxxx Fargo Capital Finance - Less Ineligibles (detailed on page 5) - Eligible Inventory - Inventory Availability before Sublimit(s) - Wise Alloys, correct LLC Reserves Wise Alloys, LLC Reserves (1,097,264.67) RWD Reserves - Warehousemen / Convertor Offset RWD Reserves (1,097,264.67) Availability before Reserves Total Credit Line 300,000,000.00 #N/A Wise Alloys, LLC Reserves Wise Alloys, LLC Reserves RWD Reserves RWD Reserves - Wise Alloys, LLC Letter of Credit Balance As of: 4/30/17 Wise Alloys, LLC Loan Ledger Balance As of: 4/30/17 RWD Letter of Credit Balance As of: 6/10/17 750,000.00 RWD Loan Ledger Balance As of: 6/10/17 37,700,000.00 Additionally, the undersigned hereby certifies and complete listing represents and aging warrants to the Lender Group on behalf of the Company's accounts receivable Borrower that (i) as of the last day date hereof, each representation or warranty contained in or pursuant to any Loan Document, any agreement, instrument, certificate, document or other writing furnished at any time under or in connection with any Loan Document, and as of the last full calendar month preceding the effective date hereof determined of any advance, continuation or conversion requested above is true and correct in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, all material respects (except to the extent that reserves for doubtful accounts any representation or warranty expressly related to an earlier date), (ii) each of the covenants and agreements contained in any Loan Document have been established by performed (to the Company extent required to be performed on or before the date hereof or each such effective date), (iii) no Default or Event of Default has occurred and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto is continuing on the date hereof. Promptly , nor will any thereof occur after giving effect to the Closing Date but in no event later than thirty request above, and (30iv) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging all of the Company's accounts receivable foregoing is true and correct as of the day immediately preceding effective date of the Closing Date determined calculations set forth above and that such calculations have been made in accordance with GAAP consistent the requirements of the Credit Agreement. Authorized Signer Date (mm/dd/yyyy) Name:. Wise Alloys, LLC and Constellium Rolled Products Ravenswood, LLC Report based on Aging dated: Loan ID #: XXX XXX Division Name: Wise Alloys RWD Total Post dated - - Current - 1-30 DPD - 31-60 DPD - 61-90 DPD - 91+ DPD - A/R Aging Balance: - - - Ineligibles: Past Due (60 DPD and 120 DOI) - AB Past Due - Past Due Credits - CrossAge (50%) - Intercompany - Foreign > $30,000,000 - Government - COD - Debit Memo - Employee Sales - Progress Billing - Extended Terms - Finance Charges - Guaranteed - Samples - Consignment Sales - Xxxx & Hold - Bankrupt/Doubtful - Shortpay - Claims by Customers - Concentration Limit #N/A #N/A #N/A Penalty Clause - Accrued Rebates - Defaulted Accounts - Non-Ordinary Course Sales - Other - Other (Contras) - Other (Foreign sales w/o credit insurance) - Other - Other - Other - Other - Other - Other - Other - Other #N/A #N/A Other - Other - Other - Other - Total Ineligible A/R: #N/A #N/A #N/A Eligible A/R #N/A #N/A #N/A Advance Rate 85% 85% 1 25% #N/A #N/A - - - #N/A #N/A 2 25% #N/A #N/A - - + - #N/A #N/A 3 25% #N/A #N/A - - - #N/A #N/A 4 25% #N/A #N/A - - - #N/A #N/A 5 25% #N/A #N/A - - - #N/A #N/A 6 25% #N/A #N/A - - - #N/A #N/A 7 25% #N/A #N/A - - - #N/A #N/A 8 25% #N/A #N/A - - - #N/A #N/A 9 25% #N/A #N/A - - - #N/A #N/A 10 25% #N/A #N/A - - - #N/A #N/A Total Analyzed #N/A #N/A - - - - - - - - - - - - #N/A CONSOLIDATED TOTAL AR #N/A – – – – – – – Net Eligible AR Prior to Concentration Ineligible - - Names (Customer_Name_Calc) % or Dollar Cap All Others 25% Constellium Rooled products Ravenswood, LLC As of:5/31/2017 1 25% #N/A #N/A - $ - #N/A #N/A 2 25% #N/A #N/A - $ - #N/A #N/A 3 25% #N/A #N/A - $ - #N/A #N/A 4 25% #N/A #N/A - $ - #N/A #N/A 5 25% #N/A #N/A - $ - #N/A #N/A 6 25% #N/A #N/A - $ - #N/A #N/A 7 25% #N/A #N/A - $ - #N/A #N/A 8 25% #N/A #N/A - $ - #N/A #N/A 9 25% #N/A #N/A - $ - #N/A #N/A 10 25% #N/A #N/A - $ - #N/A #N/A Total Analyzed #N/A #N/A - - - - - - - - - - - - - #N/A CONSOLIDATED TOTAL AR #N/A - - - - - - - Names (Customer_Name_Calc) % or Dollar Cap All Others 25% Name: Wise Alloys, LLC and Constellium Rolled Products Ravenswood, LLC Loan ID #: XXX XXX XXX XXX XXX XXX XXX XXX TBD Inventory Category: Wise XX Xxxx Semi-Finished Goods Wise XX Xxxx In Transit RWD RM RWD Semi-Finished Goods RWD FG RWD Other RWD In-Transit Total Ineligibles: Freight-In Charges - Other Inventory (Chemicals/Supplies) - Foreign - Toll Conversion Costs - Slow Moving - Inventory locations < $100 - Excess/Obsolete - Consignment - Packaging - Tooling/Replacement Parts - Display Items - Returns - Other - In-transit RAW (RWD) - Other - In-transit WIP (RWD) - Other - In-transit FG (RWD) - Other - Conversion cost in toll material (RWD) - Other-Slow Moving Inv Reserve already in NOLV - Other - Appraisal Reserve (grossed up) - Total Ineligible Inventory: - - - - - - - - - - Eligible Inventory - - - - - - - - - - Advance Rate 72.59% 61.03% 76.59% 0.00% 78.97% 61.97% 80.00% 0.00% 80.00% Availability before Xxxxxxxx - - - - - - - - - - Xxxxxxxxx 25,000,000.00 Net Inventory Availability - - - - - - - - - - As of: 6/6/17 Wise XX Xxxx Semi-Finished Goods Wise XX Xxxx In Transit RWD RM RWD Semi-Finished Goods RWD FG Appraised NOLV % 85.40% 71.80% 90.10% 0.00% 92.90% 72.90% 101.40% 0.00% % times the NOLV 85% 85% 85% 85% 85% 85% 85% % of NOLV 72.59% 61.03% 76.59% 0.00% 78.97% 61.97% 86.19% Period Activity date Location_calc Extended_value_calc Location_type_calc Subtotal top 20 - All others - Grand total inventory - Constellium Rolled Products Ravenswood, LLC Period Activity date Location_calc Extended_value_calc Location_type_calc Subtotal top 20 - All others - Grand total inventory - Name: 0 Report #: Sales (+) DILUTIVE Credits (-) Non Dilutive / Adjustment (+) (+) Dilutive / Adjustment (-) (-) Gross Collection (-) Discount (-) Non-AR Cash (+) A/R Ending Balance - Variance - GL Balance Reconciling items Adjusted Balance - Variance - Name: Constellium Rolled Products Ravenswood, LLC Report #: 2886 Cutoff: 5/31/2017 Date Prepared: 6/13/2017 Sales (+) DILUTIVE Credits (-) Non Dilutive / Adjustment (+) (+) Dilutive / Adjustment (-) (-) Gross Collection (-) Discount (-) Non-AR Cash (+) A/R Ending Balance - Variance - GL Balance Reconciling items Adjusted Balance - Variance - AR Transactions -RWD Wise Alloys, LLC Currency: USD 1 #N/A - 2 #N/A - 3 #N/A - 4 #N/A - 5 #N/A - 6 #N/A - 7 #N/A - 8 #N/A - 9 #N/A - 10 #N/A - Constellium Rolled Products Ravenswood, LLC Currency: USD Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - Manual #N/A - - 1 #N/A - 2 #N/A - 3 #N/A - 4 #N/A - 5 #N/A - 6 #N/A - 7 #N/A - 8 #N/A - 9 #N/A - 10 #N/A - Xxxxx Fargo Bank, National Association [Date] Ladies and Gentlemen: Reference is made to the Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tuxxxxxxxxx 00, Xxx Xxxxxxxxxxx, registered with the presentation register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “Administrative Agent”) for the Lenders. Terms defined in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business Credit Agreement and not otherwise defined herein are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent used herein with the presentation same meanings. This notice constitutes a Borrowing Request and the Borrower (as defined below) hereby requests Borrowings under the Credit Agreement, and in that connection the Financial Statements, it being understood that in no event shall Borrower specifies the reserve following information with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.such Borrowings requested hereby:

Appears in 1 contract

Samples: Credit Agreement (Constellium N.V.)

Accounts Receivable. SCHEDULE 3.15 is a true, correct (a) If and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful the proceeds of the accounts have been established receivable included in the Acquired Assets or other funds pertaining to or arising out of the Acquired Assets which are received by the Company Sellers or their Affiliates at any time, such proceeds shall be received and are set forth on SCHEDULE 3.15 held by such person in trust for the Purchaser and which reserves have been adequately reflected on, and are consistent with presentation inshall be paid over to the Purchaser promptly. Accordingly, the Financial Statements attached hereto on Sellers irrevocably authorize and direct the Purchaser to retain any such proceeds (including any such proceeds received in either Seller's collection accounts, lockboxes, blocked or restricted accounts or similar accounts used by the Sellers to collect accounts receivable). (b) As soon as reasonably practicable after the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts Purchaser shall notify in writing each debtor whose account receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are is set forth on the Financial Statements spreadsheet attached to Schedule 1.01 that (i) such debtor's account receivable has been sold to the Purchaser and SCHEDULE 3.15(ii) such debtor shall make payment of all amounts due or payable or to become due directly to the Purchaser or its designee or designated account. (c) It is the intention of the parties hereto that the conveyance of the Businesses hereunder shall constitute a sale, which sale is absolute and irrevocable and provides Purchaser with the full benefits of ownership of the Businesses. Upon the request of Purchaser, each Seller will execute and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary or appropriate to perfect and maintain the perfection of Purchaser's ownership interest in the accounts receivable set forth on Schedule 1.01 originated by such Seller and included in the Businesses. (d) If, notwithstanding the intention of the parties expressed in clause (a) above, the conveyance of any of the Businesses hereunder shall be characterized as a secured loan and not a sale or such sale shall for any reason be ineffective or unenforceable, then this Agreement shall be deemed to constitute a security agreement under the UCC and other applicable law. For this purpose and without being in derogation of the parties' intention that the sale of the accounts receivable set forth on Schedule 1.01 by each Seller hereunder shall constitute a true sale thereof, such Seller hereby grants to Purchaser a duly perfected security interest in all of such Seller's right, title and interest in, to and under the Businesses which are now existing or hereafter arising, and all proceeds thereof to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the Purchase Price of the Businesses purchased from such Seller together with all other obligations of such Sellers hereunder, which security interest shall be prior to all other Liens thereto. Purchaser and its assigns shall have, in each case as attached hereto on addition to the date hereof. The reserves for doubtful accounts established by rights and remedies which they may have under this Agreement, all other rights and remedies provided to a secured creditor under the Company UCC and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or other applicable law, which rights and remedies shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablescumulative.

Appears in 1 contract

Samples: Asset Purchase Agreement (Divine Inc)

Accounts Receivable. SCHEDULE 3.15 is With respect to the Accounts Receivable, the Borrower represents and warrants that, unless otherwise indicated in writing by the Borrower: (a) all Accounts Receivable are genuine, are in all respects what they purport to be, are not evidenced by a truejudgment and are evidenced by only one, correct and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined if any, executed original instrument, agreement, contract, or document; (b) all Accounts Receivable represent undisputed bona fide transactions completed in accordance with GAAP consistently applied the terms and determined provisions contained in a manner consistent any documents or agreements related thereto; (c) the face amount shown on any schedule of Accounts Receivable heretofore or hereafter provided to the Bank and all invoices and statements delivered to the Bank with respect to any Accounts Receivable are or will be actually and absolutely owing to the presentation in Borrower and are not contingent for any reason; (d) to the Financial Statements. All best of such accounts receivable have arisen in bona fide armthe Borrower's length transactions knowledge, there are no set-offs, counterclaims, or disputes existing or asserted with respect to the Accounts Receivable, and the Borrower has not made any agreement with any account debtor for any deduction therefrom, except for discounts and allowances allowed by the Borrower in the ordinary course of its business and for prompt payment, all of which discounts or allowances are valid and binding obligations reflected in the calculation of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesinvoices to which such discounts or allowances relate; (e) to the best of the Borrower's knowledge, there are no facts, events, or conditions which in any way impair the validity or enforcement of the Accounts Receiv able or tend to reduce the amount payable thereunder from the invoice face amount shown on any schedule of Accounts Receivable delivered to the Bank; (f) the Borrower has no knowledge of any fact or circumstance that would impair the validity or collectibility of the Accounts Receivable; and (g) the Accounts Receivable that the Borrower shall, expressly or by implication, request the Bank to treat as Eligible Accounts will, as of the time such request is made, conform in all requests to the conditions to be treated as Eligible Accounts.

Appears in 1 contract

Samples: Loan Agreement (Cti Industries Corp)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging Infologix will (a) inform Bank immediately of the Company's rejection of goods, claims made or delay in delivery or performance in regard to any account or contract right upon which Borrowers have based availability for Line Advances or if any account receivable previously scheduled, listed or referred to in any certificate, statement or report by any Borrower and upon which Borrowers are basing availability for Line Advances ceases to be an Eligible Receivable; (b) adjust the borrowing base calculation under the Line to reduce the availability for Line Advances by the amount of any account with respect to which any Borrower is required to give Bank notice pursuant to the foregoing subsection (a) and repay any Out-Of-Formula Advance resulting therefrom; (c) make no change in any account upon which Borrowers have based availability for Line Advances, unless such change is contemporaneously reflected in the borrowing base calculation; (d) furnish to Bank all information received by Infologix affecting the financial standing of any account debtor whose account or contract right has been specifically assigned to Bank; (e) pay Bank the amount loaned against any account or contract right if the goods are returned by purchaser or the contract is canceled or terminated or adjust the borrowing base calculation to reduce the availability for Line Advances by the amount of such account and repay any Out-Of-Formula Advance resulting therefrom; (f) immediately notify Bank if any of its accounts receivable as arise out of contracts with the United States or any department, agency or instrumentality thereof, and execute any instruments and take any steps required by Bank in order that all monies due and to become due under such contract shall be assigned to Bank and notice thereof given to the Government under the Federal Assignment of Claims Act; and (g) deliver to Bank, with appropriate endorsement or assignment, any instrument or chattel paper representing an account or contract right. Any permission granted to Infologix by Bank to omit any of the last day requirements of this Section 7.26 may be revoked by Bank at any time. Each Borrower will, if requested by Bank (a) give Bank assignments, in form acceptable to Bank, of specific accounts or groups of accounts and monies due and to become due under specific contracts and specific general intangibles; (b) furnish to Bank a copy, with such duplicate copies as Bank may request, of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied invoice applicable to each account specifically assigned to Bank or arising out of a contract right, bearing a statement that such account has been assigned to Bank and determined such additional statements as Bank may require; (c) xxxx its records evidencing its accounts in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject satisfactory to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except Bank so as to the extent that reserves for doubtful show which accounts have been established assigned to Bank; (d) furnish to Bank satisfactory evidence of the shipment and receipt of any goods specified by Bank and the Company performance of any services or obligations covered by accounts or contracts in which Bank has a security interest; (e) pay Bank the unpaid portion of any account or contract right upon which Borrowers have based availability for Line Advances if (i) such account is not paid promptly after its maturity, (ii) an account debtor does not accept the goods or services, (iii) any petition under the Bankruptcy Code or any similar federal or state statute is filed by or against a purchaser, or (iv) Bank shall at any time reject the account as unsatisfactory; and are set forth on SCHEDULE 3.15 until such payment is made by any Borrower, Bank may retain any such account or contract right as security and which reserves have been adequately reflected onmay charge any deposit account of any Borrower for any such amounts; (f) join with Bank in executing a financing statement, notice, affidavit, security agreement, assignment or similar instrument, in form satisfactory to Bank, and are consistent with presentation insuch continuation statements and other instruments as Bank may from time to time request and pay the cost of filing the same in any public office deemed advisable by Bank to perfect the liens and security interests granted therein; (g) give Bank such financial statements, reports, certificates, lists of purchasers (showing names, addresses, and amounts owing) and other data concerning its accounts, contracts, collections, inventory, general intangibles and other matters as Bank may from time to time request; (h) segregate cash proceeds of Collateral so that they may be identified readily, and deliver the Financial Statements attached hereto same to the Bank at such time or times and in such manner and form as the Bank may direct; (i) furnish such witnesses as may be necessary to establish legal proof of the Collateral or records relating to the Collateral; and (j) obtain from any owner, encumbrancer, processor, or other person having an interest in the property where any Collateral is located, written consent to Bank’s removal of the Collateral therefrom, without liability on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging part of the Company's accounts receivable as Bank to such owner, encumbrancer, processor or other person, or from any such owner, encumbrancer, processor or other person such waivers of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation any interest in the Financial Statements (Collateral as the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesBank may require.

Appears in 1 contract

Samples: Loan and Security Agreement (InfoLogix Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging of the Company's All accounts receivable accrued by the Companies and SJCAL (other than the Vacation Club receivables) shall be computed and certified by the Parties. Such apportionment between the Parties shall be computed as of 11:59 pm (Antigua time) on the last day of Closing Date (such date and time for apportionment is hereinafter referred to as “the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial StatementsApportionment Date”) as stated herein. All of such accounts receivable have arisen in bona fide arm's length transactions in prior to the ordinary course of business and are valid and binding obligations of Apportionment Date shall be belong to the account debtorsVendor. Such accounts receivable are not subject to counterclaims or set-offs and are collectible include those more particularly described in full in the ordinary course of business within 120 days Schedule 6.2 hereto. The accounts receivable of the relevant invoice date, except Companies accrued after the Apportionment Date shall belong to the extent that reserves for doubtful accounts have been established by the Company Companies and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onSJCAL respectively, and are consistent not the Vendor. For the avoidance of doubt, any tour operator and travel agent xxxxxxxx in connection with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable Resort operation shall be prorated as of the day immediately preceding Apportionment Date. Any such tour operator and travel agent xxxxxxxx that are “consumed” yet not collected shall be collected by and belong to the Closing Date determined Vendor. Any such tour operator and travel agent xxxxxxxx that are not yet “consumed” and not yet collected shall be collected by and belong to the Purchaser (unless the Purchaser agrees by a separate written agreement that the Vendor or their Affiliates will collect such xxxxxxxx and forward payment to the Purchaser). Any such tour operator and travel agent xxxxxxxx that are not yet “consumed,” but collected, shall be credited to the account of the Purchaser in accordance with GAAP consistent with clause 6.5(vi). The Vendor and the presentation in Purchaser agree and acknowledge that the Financial Statements (the "Closing Date Receivables"), to aforementioned tour operator and travel agent xxxxxxxx may be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims certain deductions for marketing expenses, commissions, and similar costs and expenses including without limitation sales commissions due to The Xxxxxxxxxxx Group, Inc. d/b/a Elite Island Resorts, a company existing under the Laws of Florida, United States. For disclosure purposes, Elite Island Resorts receives a seven percent (7%) sales commission where Elite is responsible for collecting payments, or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves a five percent (5%) sales commission where Elite is not responsible for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablescollecting payments.

Appears in 1 contract

Samples: Stock Purchase Contract (Cci Group Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging All accounts receivable included within the Purchased Assets of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions Asset Selling Entities (i) arose in the ordinary course of business and are valid were determined in accordance with GAAP, (ii) represent bona fide claims against debtors for sales, leases, licenses and binding obligations of the account debtors. Such accounts receivable other charges, and (iii) are not subject to counterclaims any discount, contingency, claim of off-set or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined recoupment or counterclaim in accordance with GAAP consistent with the presentation in excess of $25,000 in the Financial Statements aggregate, net of any applicable reserves or allowances as set forth on Schedule 3.31 (including, for purposes hereof, all subschedules annexed hereto which include references to “3.31” in the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 captions thereof) annexed hereto. SCHEDULE 3.15 The Asset Selling Entities own or owned all right, title and interest in and to such accounts receivable, subject to the Liens described on Schedule 3.11 annexed hereto all of which Liens shall be deemed amended released at or prior to include such listing upon delivery Closing. The amount carried for allowances, including, without limitation, markdowns, price protection, bad debt allowance and reserves, are sufficient to provide for any losses which may be sustained on realization of the accounts receivable included within the Purchased Assets of the Asset Selling Entities. The aged accounts receivable report of CellStar and its Subsidiaries, and in respect of the Business, delivered by CellStar to Buyer thereof. As as of September 30, 2006 and attached as Schedule 3.31 (which shall be updated as of a date within ten (10) days prior to the Closing Date) is true, the Closing Date Receivables have arisen complete and accurate in bona fide arm's length transactions all material respects. All accounts receivable shown in the ordinary course of business and are valid and binding obligations Business Financial Statements, or arising after the date of the account debtors. Such accounts receivable Business Financial Statements, which are not or were the subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except Sellers’ factoring arrangements relating to its Miami operations (“Factoring Arrangements”) arose through the sale of goods which conformed in all respects to the extent that reserves requirements of such Factoring Arrangements and do not, and will not, give rise to any claim for doubtful accounts are established by the Company recourse, refund, recoupment or other adjustment and are set forth on the Financial Statements and SCHEDULE 3.15, in each case have properly been accounted for as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined a sale of receivables in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesGAAP.

Appears in 1 contract

Samples: Asset Purchase Agreement (Cellstar Corp)

Accounts Receivable. SCHEDULE 3.15 is The Shareholders have delivered to ESI a true, correct and complete listing and aging schedule of the Company's Companies' accounts receivable as of September 30, 2001 (the last day "RECEIVABLES") showing the amount of each such Receivable and an aging of amounts due thereunder, which schedule is true and complete as of that date. Except as set forth in SCHEDULE 2.25(A) to the Disclosure Letter, to the Knowledge of the last full calendar month preceding Shareholders, the Substantial Debtors are not (A) as of the date hereof, involved in or subject to a bankruptcy or insolvency proceeding, or (B) during the period between the date hereof determined and the Closing Date, reasonably expected to become involved in accordance with GAAP consistently applied and determined in or subject to a manner consistent with bankruptcy or insolvency proceeding, the presentation results of which (in the Financial Statementscase of clause (B)) would materially and adversely affect the Companies, and none of the Receivables from the Substantial Debtors have been made subject to an assignment for the benefit of creditors. All For purposes of this Agreement, the term "Substantial Debtors" shall mean any debtor set forth on such accounts receivable have arisen schedule who, as of September 30, 2001, owed the Company more than $50,000. Except as set forth in bona fide arm's length transactions SCHEDULE 2.25(A) to the Disclosure Letter, all Receivables which are reflected on the Interim Financial Statements or which will be reflected on the Final Closing Date Working Capital Statement (i) are valid, (ii) represent monies due for goods sold and delivered or services rendered in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable (iii) are not subject to counterclaims any refunds or adjustments or any defenses, rights of set-offs off, assignment, restrictions, security interests or other Liens. Except as set forth in SCHEDULE 2.25(B) to the Disclosure Letter and are collectible in full the schedule referenced in the ordinary course first sentence of business within 120 days of the relevant invoice date, except this Section 2.25(a) and after giving effect to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or any reserve to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Final Closing Date Working Capital Statement, all such Receivables exceed 1% are current, and there are no disputes regarding the collectibility of any such Receivables. None of the total face amount Companies has factored any of the Closing Date its Receivables.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Express Scripts Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueAccounts Receivable Balance per Aging Report Assigned To Xxxxx Fargo Capital Finance Less Ineligibles (detailed on page 2) Eligible Accounts Receivable Accounts Receivable Availability before Sublimit(s) Inventory Balance Assigned To Xxxxx Fargo Capital Finance Less Ineligibles (detailed on page 3) Eligible Inventory Inventory Availability before Sublimit(s) Cap EX Purchase Price Assigned to Xxxxx Fargo Capital Finance Cap Ex Line Advance Rate Cap EX Line of Credit Sub-Limit Letter of Credit Balance As of: Loan Ledger Balance As of: Additionally, correct the undersigned hereby certifies and complete listing represents and aging warrants to the Lender Group on behalf of the Company's accounts receivable Borrower that (i) as of the last day date hereof, each representation or warranty contained in or pursuant to any Loan Document, any agreement, instrument, certificate, document or other writing furnished at any time under or in connection with any Loan Document, and as of the last full calendar month preceding the effective date hereof determined of any advance, continuation or conversion requested above is true and correct in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, all material respects (except to the extent that reserves for doubtful accounts any representation or warranty expressly related to an earlier date), (ii) each of the covenants and agreements contained in any Loan Document have been established by performed (to the Company extent required to be performed on or before the date hereof or each such effective date), (iii) no Default or Event of Default has occurred and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto is continuing on the date hereof. Promptly , nor will any thereof occur after giving effect to the Closing Date but in no event later than thirty request above, and (30iv) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging all of the Company's accounts receivable foregoing is true and correct as of the day immediately preceding effective date of the Closing Date determined calculations set forth above and that such calculations have been made in accordance with GAAP consistent the requirements of the Credit Agreement. Authorized Signer Page 2 - Accounts Receivable Availability Detail Page 2b - Accounts Receivable Concentrations Page 2c - Accounts Receivable Dilution Page 3 - Inventory Availability Detail To: Xxxxx Fargo Bank, National Association 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Compliance Certificate dated ____________ __, 201_ Ladies and Gentlemen: Reference is made to that certain Credit Agreement dated as of May 17, 2013 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”) by and among Medical Action Industries Inc., as borrower (“Borrower”), the lenders party thereto as “Lenders” (each of such Lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender”), and Xxxxx Fargo Bank, National Association, a national banking association (“Xxxxx Fargo”), as administrative agent for each member of the presentation Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, the “Agent”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Financial Statements (the "Closing Date Receivables"), Credit Agreement. Pursuant to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As Section 5.1 of the Closing DateCredit Agreement, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course undersigned officer of business and are valid and binding obligations Borrower hereby certifies as of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.hereof that:

Appears in 1 contract

Samples: Credit Agreement (Medical Action Industries Inc)

Accounts Receivable. SCHEDULE 3.15 All accounts receivable which are in existence at the Closing Date are herein called the “Subject Receivables” and shall be dealt with as follows: (a) As soon as is reasonably practicable following the Closing Date, Sellers, with such assistance from Buyer as they may reasonably require, will prepare a true, correct and complete listing and aging detailed trial balance of the Company's accounts receivable as Subject Receivables and deliver such trial balance to Buyer. With respect to Subject Receivables relating to non-hold back or non-retention contracts, once one hundred and twenty (120) days have elapsed, Buyer shall deliver to Sellers a list of the last day Subject Receivables which are then outstanding in whole or in part and which Buyer wishes to assign to Sellers (the “Uncollected Non-Retention Receivables”), if any. In addition, with respect to Subject Receivables relating to hold back or retention contracts, upon the earlier of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of (i) ninety (90) days after such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business become fully due and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims payable or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30ii) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of two years from the Closing Date, Buyer shall deliver to Sellers a list of such Subject Receivables which are then outstanding in whole or in part and which Buyer wishes to assign to Sellers (the Closing Date “Uncollected Retention Receivables” and together with the Uncollected Non-Retention Receivables, the “Uncollected Receivables”), if any. At the time of each respective delivery, Buyer shall: (i) Assign such Uncollected Receivables have arisen in bona fide arm's length transactions in to Sellers (or their designees) free and clear of all security interests or other encumbrances, pursuant to a form of assignment satisfactory to Sellers’ counsel, acting reasonably; and (ii) Sellers shall forthwith pay to Buyer an amount equal to the ordinary course of business and are valid and binding obligations aggregate unpaid principal amount of the Uncollected Receivables. (b) Buyer will provide access, during business hours, to such employees, books and records of the Business as Sellers may reasonably require in order to collect the Uncollected Receivables and shall provide, at Sellers’ expense, copies of such relevant documentation as Sellers may reasonably require in connection therewith. If requested by Sellers, Buyer will provide oral or written confirmation to specific account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in debtors of the ordinary course Uncollected Receivables of business within 120 days the assignment of the relevant invoice date, except Uncollected Receivables to Sellers and that payment of the relevant Uncollected Receivables to Sellers shall release the specific account debtor of any liability to Buyer in respect of such Uncollected Receivable. Sellers shall make only such requests of Buyer as are reasonable in order for them to collect the Uncollected Receivables and Sellers shall use their best efforts not to cause any unreasonable disruption to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, ongoing business of Buyer in each case as attached hereto on the date hereofrelation to such requests. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements Should Buyer receive any payments in respect of Uncollected Receivables after they have been or assigned to Sellers, Buyer shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect forthwith forward such payments to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesSellers.

Appears in 1 contract

Samples: Asset Purchase Agreement (Powell Industries Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging of the Company's (a) All accounts receivable that are reflected on the accounting records of Bxxxxxx as of the last day Closing Date (but excluding any Excluded Assets) represent or will represent valid obligations arising from sales actually made or services actually performed by Bxxxxxx in the Ordinary Course of Business. Except to the extent paid prior to the Closing Date, such accounts receivable are or will be as of the last full calendar month preceding Closing Date current and collectible net of the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statementsrespective reserves shown on Schedule 5.8(a). All Subject to such reserves, each of such accounts receivable have arisen either has been or will be collected in bona fide arm's length transactions full, without any setoff, within ninety (90) days after the day on which it first becomes due and payable. There is no contest, claim, defense or right of setoff, other than returns in the ordinary course Ordinary Course of business and are valid and binding obligations Business of the Bxxxxxx, under any contract with any account debtors. Such accounts debtor of an account receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except relating to the extent that reserves for doubtful accounts have been established by amount or validity of such account receivable. (b) With respect to the Company Marubeni and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements IcresT (the "Closing Date ReceivablesM/I Accounts") receivables described in Schedule 5.8(b), Bxxxxxx makes no representation other than that they represent valid obligations arising from sales actually made. The M/I Accounts will be treated provisionally as having a value equal to be appended 100% of the amounts shown on Schedule 5.8(b). Buyer will use commercially reasonable efforts to collect the M/I Accounts. Bxxxxxx shall cooperate with Buyer as part reasonably requested, and Buyer shall not settle the M/I Accounts without the prior approval of SCHEDULE 3.15 heretoBxxxxxx. SCHEDULE 3.15 Buyer shall be deemed amended to include provide Bxxxxxx with such listing upon delivery to Buyer thereof. As of information concerning collections on the accounts as Bxxxxxx may request. (c) On the date 180 days from the Closing Date, Buyer shall send a statement to Bxxxxxx requesting payment of an amount equal to the Closing Date Receivables difference between (x) the amounts of the M/I Accounts shown on Schedule 5.8(b), minus the sum of (y) 75% of any amounts collected by Buyer on the M/I Accounts (net of reasonable collection expenses) and (z) any remaining reserve shown on Schedule 5.8(b) which as of the date of calculation has not been applied to uncollectible accounts. Upon payment of the statement, Buyer shall convey to Brawley any remaining interest it may have arisen in bona fide arm's length transactions in the ordinary course M/I Accounts. Bxxxxxx'x obligation to pay the amount provided in this Section 5.8(c) shall not be subject to, or taken into account under, the provisions of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesSection 9.2.

Appears in 1 contract

Samples: Contribution Agreement (National Beef Packing Co LLC)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging All rights of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied Company and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions its Subsidiaries to ------------------- payment for goods sold, leased or otherwise marketed in the ordinary course of business and are valid and binding obligations all rights of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver its Subsidiaries to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions payment for services rendered in the ordinary course of business and are valid all sums of money or other proceeds due or to become due thereon pursuant to transactions with Persons, recorded on books of account in accordance with generally accepted accounting principles, excluding, however, from the foregoing definition of Accounts Receivable, all intercompany accounts receivable and binding obligations deducting from the -------- ---------- foregoing definition of Accounts Receivable the aggregate amount of all ------------------- allowances therefor on the books of the account debtorsCompany and its Subsidiaries in accordance with generally accepted accounting principles. Such accounts receivable are Capital Assets. Fixed assets, tangible (such as land, building, fixtures, -------------- machinery and equipment) and intangible (such as goodwill and marketing rights), provided that Capital Assets shall not subject include intangible assets included in -------- Capitalized Computer Software Costs; and provided further that Capital Assets ---------------- shall not include any item customarily charged directly to counterclaims expense or set-offs and are collectible depreciated over a useful life of twelve (12) months or less in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established accordance with generally accepted accounting principles. Capital Expenditures. Amounts paid or indebtedness incurred by the Company and are set forth on -------------------- or any of its Subsidiaries in connection with the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established purchase or lease by the Company and reflected or such Subsidiary of Capital Assets that would be required to be reflected on SCHEDULE 3.15 or capitalized and shown on the Financial Statements have been or shall be determined balance sheet of such Person in accordance with GAAP consistently applied and are and shall be consistent generally accepted accounting principles; provided, however, that amounts paid -------- ------- or indebtedness incurred by the Company or any of its Subsidiaries in connection with the presentation purchase or lease by the Company or such Subsidiary of Capital Assets pursuant to contracts or agreements with the United States government or any agency thereof shall not be included in the Financial Statements, it being understood that in no event shall foregoing definition of Capital ------- Expenditures for so long as such amounts paid or indebtedness incurred is ------------ promptly reimbursed by the reserve with respect United States government or the applicable agency thereof to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesCompany or such Subsidiary.

Appears in 1 contract

Samples: Revolving Credit Agreement (Sterling Software Inc)

Accounts Receivable. SCHEDULE 3.15 is Schedule 3.26(a) contains a true, correct true and complete listing aging schedule of all Accounts Receivable reflected on the Consolidated Financial Statements and aging all Accounts Receivable accrued since the Balance Sheet Date. The Accounts Receivable reflected on the Latest Balance Sheet and all of the Company's accounts receivable as Accounts Receivable arising since the Balance Sheet Date arose from bona fide transactions made pursuant to an enforceable Contract and in the Ordinary Course of Business, and the goods involved with respect to such Accounts Receivable have been sold and shipped to or on behalf of the last day account obligors, and no further filings (with governmental agencies, insurers or others) are required to be made, no further goods are required to be provided and no further services are required to be rendered in order to complete the sales reflected by such Accounts Receivable. No such Account Receivable has been assigned or pledged to any Person ((other than (i) pursuant to the Receivables Facilities or (ii) with respect to Permitted Liens securing Indebtedness), nor is any Account Receivable subject to any claim for reduction, counterclaim, set-off, recoupment or other claim for credit, allowances or adjustments by the obligor thereof. Except as reserved in the Latest Balance Sheet or as described on Schedule 3.26(b), to the Knowledge of Holding, all Accounts Receivable are collectible in the last full calendar month preceding the date hereof determined Ordinary Course of Business in accordance with GAAP consistently applied and determined their terms. No Entity has collected, or accelerated the collection of, any Accounts Receivable in a manner consistent that is inconsistent with the presentation operation of the business of any Entity in the Financial StatementsOrdinary Course of Business. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and No amounts are valid and binding obligations currently owed by any of the account debtors. Such accounts receivable are not subject Entities to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days providers of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve Facilities with respect to (i) uncollectible Accounts Receivable, (ii) repurchase obligations for Accounts Receivable sold to such providers or (iii) any other indemnification claims under the Closing Date transaction documents governing the Receivables exceed 1% of the total face amount of the Closing Date ReceivablesFacilities.

Appears in 1 contract

Samples: Merger Agreement (Energizer Holdings, Inc.)

AutoNDA by SimpleDocs

Accounts Receivable. SCHEDULE 3.15 is a true, correct (a) Each Grantor hereby covenants and agrees that it shall keep and maintain at its own cost and expense satisfactory and complete listing records of its Accounts Receivable, including the originals of all documentation with respect to its Accounts Receivable and aging records of all payments received and all credits granted on such Accounts Receivable, all merchandise returned and all other dealings therewith. (b) Each Grantor hereby covenants and agrees that it shall xxxx conspicuously, in form and manner reasonably satisfactory to the Security Agent, all Chattel Paper, Instruments and other items evidencing Accounts Receivable (other than any delivered to the Security Agent as provided herein), as well as the related Accounts Receivable Records, with an appropriate reference to the fact that such Accounts Receivable have been collaterally assigned to the Security Agent for the benefit of the Company's accounts receivable as of Secured Parties and that the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied Security Agent has a Security Interest therein. (c) Each Grantor hereby covenants and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions agrees that other than in the ordinary course of business as generally conducted by it on and are valid prior to the date hereof and binding obligations consistent with its sound business judgment, and except as otherwise provided in subsection (d) below, no Grantor shall (i) grant any extension or renewal of the account debtorstime of payment of any Accounts Receivable, (ii) compromise, compound or settle any dispute, claim or legal proceeding with respect to any Accounts Receivable for less than the total unpaid balance thereof, or release, wholly or partially, any Person liable for the payment thereof, (iii) allow any credit or discount whatsoever thereon or (iv) amend, supplement or modify any Account in any manner that could materially adversely affect the value thereof. (i) Each Grantor hereby covenants and agrees that except as otherwise provided in this subsection, such Grantor shall continue to collect all amounts due or to become due to such Grantor under its Accounts Receivable and any Supporting Obligation and diligently exercise each material right it may have under such Accounts Receivable, any A07164677/5.0/13 Dec 2006 (ii) Notwithstanding the foregoing, the Security Agent shall have the right at any time following the occurrence of an Enforcement Event to notify, or require any Grantor to notify, any Account Debtor of the Security Agent's Security Interest in the Accounts Receivable and any Supporting Obligation and the Security Agent may: (A) direct the Account Debtors under any Accounts Receivable to make payment of all amounts due or to become due to any Grantor thereunder directly to the Security Agent, (B) notify, or require a Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Accounts Receivable have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Security Agent and (C) enforce, at the expense of any Grantor, collection of any such Accounts Receivable and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. Such accounts receivable are If the Security Agent notifies a Grantor that it has elected to collect the Accounts Receivable in accordance with the preceding sentence, any payments of Accounts Receivable received by such Grantor shall be forthwith (and in any event within two Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Security Agent or in blank, if required, in a Cash Collateral Account maintained under the sole dominion and control of the Security Agent, and until so turned over, all amounts and Proceeds (including checks and other instruments) received by such Grantor in respect of the Accounts Receivable, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Security Agent hereunder and shall be segregated from other funds of such Grantor and the Grantor shall not subject adjust, settle or compromise the amount or payment of any Accounts Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon. (e) Each Grantor hereby covenants and agrees that it shall use its best efforts to counterclaims or set-offs and are collectible keep in full force and effect any Supporting Obligation or Collateral Support relating to its Accounts Receivable. (f) If at any time any Grantor shall take a security interest in the ordinary course any property of business within 120 days an Account Debtor or any other Person to secure payment and performance of the relevant invoice datean Account in excess of $100,000, except to the extent permissible under the document granting a security interest, such Grantor shall promptly assign such security interest to the Security Agent. Such assignment need not be filed of public record unless necessary to continue the perfected status of the security interest against creditors of and transferees from the Account Debtor or other Person granting the security interest. (g) With respect to any Accounts Receivable in excess of $100,000 individually or $500,000 in the aggregate that reserves for doubtful accounts have been established by is evidenced by, or constitutes, Chattel Paper, each Grantor shall cause each originally executed copy thereof to be delivered to the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent Security Agent (or its agent or designee) appropriately indorsed to the Security Agent or indorsed in blank: (i) A07164677/5.0/13 Dec 2006 with presentation in, the Financial Statements attached hereto respect to any such Accounts Receivable in existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such Accounts Receivable hereafter arising, immediately, and in any event within ten days of such Grantor acquiring rights therein. Promptly after With respect to any Accounts Receivable in excess of $100,000 individually or $500,000 in the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging aggregate that constitutes "electronic chattel paper" under Article 9 of the Company's accounts receivable UCC, each Grantor shall take all steps necessary to give the Security Agent "control" (as defined in Section 9-105 of the day immediately preceding the Closing Date determined UCC) over such Accounts Receivable (x) with respect to any such Accounts Receivable in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto existence on the date hereof, on or prior to the date hereof and (y) with respect to any such Accounts Receivable hereafter arising, within ten days of such Grantor acquiring rights therein. The reserves for doubtful accounts established by the Company and reflected or Any Accounts Receivable not otherwise required to be reflected on SCHEDULE 3.15 delivered or on subjected to the Financial Statements have been or shall be determined control of the Security Agent in accordance with GAAP consistently applied and are and this Section 4.6 shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect delivered or subjected to the Closing Date Receivables exceed 1% such control upon request of the total face amount of the Closing Date ReceivablesSecurity Agent.

Appears in 1 contract

Samples: Pledge and Security Agreement (Allied Healthcare International Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueThe Accounts Receivable shown in the balance sheet contained in Precision Financial Statements as of December 31, correct 2003 (the "BASE BALANCE SHEET") arose in the ordinary course of business consistent with past practice and complete listing and aging have been collected or are collectible in the book amounts thereof, less an amount not in excess of the Company's allowance for doubtful accounts receivable as provided for in the Base Balance Sheet. The Accounts Receivable of SDK and Precision and their respective Subsidiaries arising after the last day Base Balance Sheet Date and prior to the Closing Date arose or will arise in the ordinary course of business consistent with past practice and have been collected or are collectible in the last full calendar month preceding the date hereof book amounts thereof, less allowances for doubtful accounts and warranty returns determined in accordance with GAAP consistently applied the past practices of SDK and/or Precision and their respective Subsidiaries. To the knowledge of the Shareholders, SDK and Precision, the Accounts Receivable are not subject to any material claim of offset, recoupment, setoff or counter-claim and they have no knowledge of any specific facts or circumstances (whether asserted or unasserted) that could give rise to any such claim in any such case, except to the extent otherwise reflected in the allowances for doubtful accounts as provided for in the Base Balance Sheet or, with respect to Accounts Receivable arising after December 31, 2003 and prior to the Closing Date, as determined in a manner the ordinary course of business consistent with the presentation past practices of SDK, Precision and their respective Subsidiaries. No material amount of Accounts Receivable are contingent upon the performance by SDK and/or Precision or any of their respective Subsidiaries of any obligation or Contract other than normal warranty repair and replacement and other than products' progress bills in the Financial Statementsordinary course of business consistent with past practice. All No Person has any Encumbrance on any of such accounts receivable have arisen in bona fide arm's length transactions Accounts Receivable and no agreement for deduction or discount has been made with respect to any of such receivables other than discounts provided in the ordinary course of business and are valid and binding obligations consistent with past practices. Section 3.9 of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs Precision Disclosure Schedule sets forth an aging of Accounts Receivable of SDK and/or Precision and are collectible in full their respective Subsidiaries in the ordinary course aggregate and by customer, and indicates the amounts of business within 120 days of the relevant invoice date, except to the extent that reserves allowances for doubtful accounts have been established and warranty returns and the amounts of Accounts Receivable which are subject to asserted warranty claims. Section 3.9 of the Precision Disclosure Schedule sets forth such amounts of Accounts Receivable which are subject to asserted warranty claims known to the Shareholders by customers and information regarding asserted warranty claims known to the Company Shareholders made within the last year, including the type and are amounts of such claims. Except as set forth on SCHEDULE 3.15 and Section 3.9 of the Precision Disclosure Schedule, neither SDK nor Precision has any Accounts Receivable from any person, firm or corporation which reserves have been adequately reflected onis affiliated with SDK and/or Precision or from any director, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafterofficer or employee or Affiliate of SDK and/or Precision, the Shareholders will deliver to Buyer a true, correct and complete listing and aging or any Subsidiary of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims SDK or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesPrecision.

Appears in 1 contract

Samples: Stock Purchase Agreement (Presstek Inc /De/)

Accounts Receivable. SCHEDULE 3.15 is (a) Within ten (10) business days prior to the Transfer Date, Tenant shall provide Assignee with a true, correct and complete detailed listing and aging of the CompanyTenant's accounts receivable which are anticipated to be outstanding on the Transfer Date. (b) From and after the Transfer Date, Assignee shall assume responsibility for the billing for and collection of payments on account of services rendered or goods sold by it on and after the Transfer Date and Tenant shall retain all right, title and interest in and to and all responsibility for the collection of its accounts receivable for services rendered or goods sold prior to the Transfer Date. (c) Payments received by Assignee from and after the Transfer Date from private pay residents and third party payors shall be handled as follows: (i) If such payments either specifically indicate on the check or on an accompanying remittance advice, or if the parties agree, that they relate to the period prior to the Transfer Date, they shall be forwarded to Tenant by Assignee, along with the applicable remittance advice (if separate from the form of payment), within five (5) business days after receipt thereof. (ii) If such payments indicate on the check or on an accompanying remittance advice, or if the parties agree, that they relate to the period on or after the Transfer Date they shall be retained by Assignee. (iii) If such payments indicate on the check or on the accompanying remittance advice, or if the parties agree, that they relate to periods for which both parties are entitled to payment/reimbursement under the terms hereof, the portion thereof which relates to the period on and after the date on which the Transfer Date shall be retained by Assignee and the balance shall be remitted to Tenant within five (5) business days after receipt thereof. (iv) If such payments do not indicate on the check or on the accompanying remittance advice and if the parties cannot otherwise agree as to the period to which they relate, then any such payments received by Assignee during the first forty five (45) days after the Transfer Date from or on behalf of residents with outstanding balances as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Transfer Date, will first be applied by Assignee to reduce the Closing resident's pre-Transfer Date Receivables balances, with any excess retained by Assignee to reduce the resident's post Transfer Date balances. (d) Tenant shall have arisen in bona fide armthe right during normal business hours and on reasonable notice to Assignee to inspect Assignee's length transactions in the ordinary course of business books and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve records with respect to the Closing accounts receivable received by it after the Transfer Date Receivables exceed 1% from residents with balances due as of the total face amount Transfer Date. (e) Nothing herein shall be deemed to limit in any way Tenant's or Assignee's rights and remedies to recover accounts receivable due and owing Tenant or Assignee under the terms of this Agreement. (f) In the Closing Date Receivablesevent the parties mutually determine that any payment hereunder was misapplied by the parties, the party which erroneously received said payment shall remit the same to the other within ten (10) business days after said determination is made.

Appears in 1 contract

Samples: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)

Accounts Receivable. SCHEDULE 3.15 is a trueNotwithstanding the Liens and security interest in favor of YA Global, correct each of Borrower, Landry Marks and complete listing YA Global acknowledge and aging agree that so long as no Default or Event of Default then exists under the Company's Landry Marks Credit Documents, and all reserve accounts receivable as of (described in the last day of the last full calendar month preceding the date hereof determined Landry Marks Credit Documents) are fully funded and following application thereof to payments on delinquent Factored Receivables, each in accordance with GAAP consistently the Landry Marks Credit Documents, Landry Marks shall, deliver the remaining purchase price not applied and determined in a manner consistent with the presentation or credited as set forth above or in the Financial StatementsLandry Marks Credit Documents to be paid for any Factored Receivables purchased by Landry Marks pursuant to the Landry Marks Credit Documents as directed in that certain direction letter from Borrower to Landry Marks attached hereto as Exhibit “B” (the “Direction Letter”). All In addition, Landry Marks agrees that any amounts actually paid to Borrower for the acquisition of such accounts receivable have arisen Accounts Receivable as described in bona fide arm's length transactions Section 2.1.4 of the Landry Marks Credit Agreement in excess of the $1,250,000 described in the ordinary course Direction Letter shall be advanced to Borrower’s account specified on Exhibit “A” attached hereto, unless otherwise specified in writing to Landry Marks by Borrower and YA Global. Borrower and YA Global acknowledge and agree that Landry Marks shall be entitled to and may retain all Proceeds of business all Accounts Receivable for application to the Landry Marks Debt pursuant to the Landry Marks Credit Documents. Upon full and are valid final payment, in good and binding obligations collected funds, of the account debtors. Such accounts receivable are not subject Landry Marks Debt, and any obligation or right of Landry Marks to counterclaims or setpurchase further Accounts Receivable under the Landry Marks Credit Documents has been terminated, Landry Marks agrees to re-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except assign any Accounts Receivables to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onBorrower, and are consistent with presentation inremit any remaining Proceeds received by Landry Marks related thereto to the Borrower’s account specified on Exhibit “A” attached hereto. Each of Borrower and YA Global acknowledge and agree that, notwithstanding the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafterDirection Letter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation Landry Marks Credit Documents, Landry Marks has no obligation or commitment to finance or otherwise purchase any Accounts Receivable from Borrower, and any such purchase shall be subject, in the Financial Statements (the "Closing Date Receivables")all respects, to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Dateapproval by Landry Marks in its sole discretion; provided, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business however, that if and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims when Landry Marks actually finances or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined otherwise purchases any Account Receivable from Borrower in accordance with GAAP consistently applied and are and shall be consistent the Landry Marks Credit Documents, the related purchase price (following application in accordance with the presentation Landry Marks Credit documents, including, without limitation, application to credit reserve accounts or pay for delinquent Accounts Receivable or otherwise) to be delivered to the Borrower shall, if applicable, be delivered in accordance with Borrower’s directions set forth in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesDirection Letter.

Appears in 1 contract

Samples: Intercreditor and Subordination Agreement (TXP Corp)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging All accounts receivable of the Company's Business that are reflected on the December 31, 2004 Balance Sheet including all accounts receivable as on Section 3.12 of the last day of the last full calendar month preceding the date hereof determined in accordance Disclosure Schedule with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such respect to accounts receivable have arisen in bona fide arm's length transactions of Nippon Selas and XX Xxxxx (a) represented valid obligations arising from sales actually made or services actually performed in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims no valid offsets or set-offs counterclaims, and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts (b) have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date so determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended GAAP. Except as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As disclosed on Section 3.12 of the Closing DateDisclosure Schedule, all accounts receivable of Seller, with respect to the Business, Nippon Selas or XX Xxxxx that will be reflected on the Closing Date Receivables have arisen Balance Sheet as finally determined in bona fide arm's length transactions accordance with Section 2.2.3: (a) will represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not will be subject to counterclaims no valid offsets or set-offs counterclaims, (b) will be so determined in accordance with GAAP, and are collectible in full in (c) to the ordinary course knowledge of business within 120 days of the relevant invoice dateSeller, except to the extent that reserves for doubtful a reserve against the possible uncollectibility of such accounts are receivable is established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on in the Financial Statements have been or shall be Closing Balance Sheet as finally determined in accordance with GAAP consistently applied Section 2.2.3, all of such accounts receivable will be fully collectible within 90 days of the date they become due and are and shall be consistent with payable (or the presentation in date set forth on Section 3.12 of the Financial Statements, it being understood that in no event shall the reserve Disclosure Schedule with respect to the particular accounts receivable of Nippon Selas specified thereon) in accordance with Seller's ordinary practice and without resort to legal proceedings at the aggregate recorded amount thereof as shown on the Closing Date Receivables exceed 1% Balance Sheet as finally determined in accordance with Section 2.2.3 (or on Section 3.12 of the total face amount Disclosure Schedule with respect to particular accounts receivable of Nippon Selas), except for the reserves, if any, allocable thereto shown on such Closing Balance Sheet. Except as disclosed on Section 3.12 of the Closing Date ReceivablesDisclosure Schedule, no claim has been made in writing, or to Seller's knowledge is threatened, against Seller, Nippon Selas or XX Xxxxx objecting to the validity, scope or right of payment of any account receivable.

Appears in 1 contract

Samples: Asset Purchase Agreement (Intricon Corp)

Accounts Receivable. SCHEDULE 3.15 The insurance under this policy is extended to include: i. all sums due to the Insured from customers, provided you are unable to effect collection thereof as the direct result of loss of or damage to records of accounts receivable; ii. interest charges on any loan required to offset amounts you are unable to collect as the direct result of such loss or damage pending our payment of these amounts; iii. collection expense in excess of normal collection cost and made necessary because of such loss or damage; iv. other expenses when reasonably incurred by the Insured in re-establishing records of accounts receivable following such loss or damage. 1. loss or damage caused by bookkeeping, accounting or billing errors or omissions; 2. loss or damage caused by alteration, falsification, manipulation, concealment, destruction or disposal of records of accounts receivable committed to conceal the wrongful giving, taking, obtaining or withholding of Money, Securities or other property but only to the extent of such wrongful giving, taking, obtaining or withholding; 3. loss where the only proof as to factual existence of such loss is dependent upon an audit of records or an inventory computation; but you may use such procedures in support of a true, correct and complete listing and aging claim for loss that you can prove using other evidence is due solely to a risk of loss to records of accounts receivable not otherwise excluded hereunder. Basis of Settlement: 1. determine the amount of all outstanding accounts receivable at the end of the Company's same fiscal month in the year immediately preceding the year in which the loss occurs; 2. calculate the percentage of increase or decrease in the average monthly total of accounts receivable for the twelve months immediately preceding the month in which the loss occurs, or such part thereof for which you have furnished monthly statements to us, as compared with such average for the same months of the preceding year; 3. the amount determined under 1.above, increased or decreased by the percentage calculated under 2. above, will be the agreed total amount of accounts receivable as of the last day of the last full calendar fiscal month preceding in which said loss occurs; 4. the date hereof amount determined under 3. above will be increased or decreased in accordance with GAAP consistently applied and determined in a manner consistent conformity with the presentation normal fluctuations in the Financial Statements. All amount of such accounts receivable have arisen in bona fide arm's length transactions in during the ordinary course of business and are valid and binding obligations fiscal month involved, due consideration being given to the experience of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in business since the ordinary course of business within 120 days last day of the relevant invoice date, except to the extent that reserves last fiscal month for doubtful accounts have which statement has been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesrendered.

Appears in 1 contract

Samples: Indemnity Agreement

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging All accounts receivable included within the Purchased Assets of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions Asset Selling Entities (i) arose in the ordinary course of business and are valid were determined in accordance with GAAP, (ii) represent bona fide claims against debtors for sales, leases, licenses and binding obligations of the account debtors. Such accounts receivable other charges, and (iii) are not subject to counterclaims any discount, contingency, claim of off-set or set-offs and are collectible recoupment or counterclaim in full accordance with GAAP in excess of $25,000 in the ordinary course aggregate, net of business within 120 days of the relevant invoice date, except to the extent that any applicable reserves for doubtful accounts have been established by the Company and are or allowances as set forth on SCHEDULE 3.15 3.31 (including, for purposes hereof, all subschedules annexed hereto which include references to "3.31" in the captions thereof) annexed hereto. The Asset Selling Entities own or owned all right, title and interest in and to such accounts receivable, subject to the Liens described on SCHEDULE 3.11 annexed hereto all of which reserves have been adequately reflected onLiens shall be released at or prior to Closing. The amount carried for allowances, including, without limitation, markdowns, price protection, bad debt allowance and reserves, are sufficient to provide for any losses which may be sustained on realization of the accounts receivable included within the Purchased Assets of the Asset Selling Entities. The aged accounts receivable report of CellStar and its Subsidiaries, and are consistent with presentation inin respect of the Business, delivered by CellStar to Buyer as of September 30, 2006 and attached as SCHEDULE 3.31 (which shall be updated as of a date within ten (10) days prior to the Closing Date) is true, complete and accurate in all material respects. All accounts receivable shown in the Business Financial Statements attached hereto on Statements, or arising after the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as Business Financial Statements, which are or were the subject of the day immediately preceding Sellers' factoring arrangements relating to its Miami operations ("FACTORING ARRANGEMENTS") arose through the Closing Date determined sale of goods which conformed in all respects to the requirements of such Factoring Arrangements and do not, and will not, give rise to any claim for recourse, refund, recoupment or other adjustment and have properly been accounted for as a sale of receivables in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesGAAP.

Appears in 1 contract

Samples: Asset Purchase Agreement (Brightpoint Inc)

Accounts Receivable. SCHEDULE 3.15 Schedule 2.30 (which, upon the agreement of the parties, may be delivered in commonly readable electronic format) contains a complete and accurate list of all accounts receivable of Seller and each Subsidiary relating to the FleetShare Business (collectively, the "FleetShare Accounts Receivable") as of April 30, 1999 and as of a date that is a trueno more than two days prior to the Closing Date, correct and complete listing and as the case may be, which list sets forth the aging of such FleetShare Accounts Receivable. With respect to all commercial credit card accounts (the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied "Accounts") and determined in a manner consistent with the presentation in the Financial Statements. All of related FleetShare Accounts Receivable: (a) such accounts receivable have arisen in bona fide arm's length transactions Accounts Receivable represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business business; (b) there is no contest, claim or, to the knowledge of Seller or either Subsidiary, right of set-off, under any contract with any obligor of a FleetShare Account Receivable relating to the amount or validity of such FleetShare Account Receivable; (c) all underwriting and are origination of Accounts were performed in accordance with the then applicable written policies and procedures of Commercial Services; (d) each of the FleetShare Accounts Receivable and Accounts and the interest rates, fees and charges in connection therewith comply, and have at all times in all material respects complied with, all Legal Requirements; (e) each Account, FleetShare Account Receivable and the related cardholder agreement is the legal, valid and binding obligations obligation of the account debtors. Such accounts receivable are not subject to counterclaims or setcardholder-offs obligor and are any guarantor named therein and each is enforceable and legally collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables")its terms under all applicable Legal Requirements, and, to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing DateSeller's and Commercial Services' knowledge, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not is subject to counterclaims no defense, offset or set-offs counterclaim, subject to applicable bankruptcy, reorganization, insolvency, moratorium (whether general or specific) and are collectible similar laws relating to creditor rights generally, and general principles of equity regardless of whether such enforcement is sought in full a proceeding in the ordinary course equity or at law; (f) each FleetShare Account Receivable is free and clear of business within 120 days of the relevant invoice dateany and all Encumbrances incurred or existing by, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 through or on behalf of, or in favor of any Person; and (g) each cardholder agreement constitutes the Financial Statements have been agreement of Commercial Services and the cardholder, and Commercial Services has made no amendment, modification or shall be determined supplement to any cardholder agreement which is not reflected in accordance with GAAP consistently applied and are and shall be consistent with the presentation writing in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablessuch agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Alliance Data Systems Corp)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging (a) Each of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied Company and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in GEMC (i) arose from bona fide arm's length transactions sales in the ordinary course of business, (ii) was entered into under circumstances and by methods usual and customary in the Company's and GEMC's business in the applicable state or country and the collection practices used with respect thereto have been and are valid in all respects legal and binding obligations proper, and (iii) was entered into, and credit granted pursuant thereto, consistent with the Company's and GEMC's historical credit policies and practices. The books of the account debtors. Such Company and GEMC correctly record the principal balance of all accounts receivable and there are no security instruments securing any account receivable which are not enforceable, subject to counterclaims limitation by bankruptcy, insolvency or similar laws affecting creditor's rights generally and by general principles of equity (including the possible unavailability of specific performance or injunctive relief). (b) The Company and GEMC have delivered to Buyer an Aged Trial Balance reflecting accounts receivable as of September 30, 1996. To the best knowledge of the Company, GEMC and the Sellers, there does not exist any uncollectible accounts receivable which in the aggregate, exceed the Company's and GEMC's reserve for bad debts. The Company and GEMC will deliver a similar current Aged Trial Balance accounts receivable statement to the Buyer dated as of the Closing Date. (c) To the best knowledge of the Company, GEMC and the Sellers, none of the accounts receivable of the Company and GEMC are subject to any material claim of offset, recoupment, set-offs off or counterclaim and are collectible in full the Company, GEMC and the Sellers have no knowledge of any specific facts or circumstances (whether asserted or unasserted) that could give rise to any such claim. No person has any lien on any of such accounts receivable and other than in the ordinary course of business within 120 days of the relevant invoice datebusiness, except to the extent that reserves no agreement for doubtful accounts have deduction or discount has been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve made with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesany such receivables.

Appears in 1 contract

Samples: Stock Purchase Agreement (Willcox & Gibbs Inc /De)

Accounts Receivable. SCHEDULE 3.15 is a true, correct (a) If and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful the proceeds of the accounts have been established receivable included in the Acquired Assets or other funds pertaining to or arising out of the Acquired Assets which are received by the Company Sellers or their Affiliates at any time, such proceeds shall be received and are set forth on SCHEDULE 3.15 held by such person in trust for the Purchaser and which reserves have been adequately reflected on, and are consistent with presentation inshall be paid over to the Purchaser promptly. Accordingly, the Financial Statements attached hereto on Sellers irrevocably authorize and direct the date hereof. Promptly Purchaser to retain any such proceeds (including any such proceeds received in either Seller's collection accounts, lockboxes, blocked or restricted accounts or similar accounts used by the Sellers to collect accounts receivable). (b) As soon as reasonably practicable after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen Purchaser shall notify in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the writing each debtor whose account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are is set forth on the Financial Statements spreadsheet attached to Schedule 1.01 that (i) such debtor's account receivable has been sold to the Purchaser and SCHEDULE 3.15(ii) such debtor shall make payment of all amounts due or payable or to become due directly to the Purchaser or its designee or designated account. (c) It is the intention of the parties hereto that the conveyance of the Acquired Assets hereunder shall constitute a sale, which sale is absolute and irrevocable and provides Purchaser with the full benefits of ownership of the Acquired Assets. Upon the request of Purchaser, each Seller will execute and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary or appropriate to perfect and maintain the perfection of Purchaser's ownership interest in the Acquired Receivables (as defined on Schedule 1.01) originated by such Seller and included in the Acquired Assets. (d) If, notwithstanding the intention of the parties expressed in clause (a) above, the conveyance of any of the Acquired Assets hereunder shall be characterized as a secured loan and not a sale or such sale shall for any reason be ineffective or unenforceable, then this Agreement shall be deemed to constitute a security agreement under the UCC and other applicable law. For this purpose and without being in derogation of the parties' intention that the sale of the Acquired Receivables by each Seller hereunder shall constitute a true sale thereof, such Seller hereby grants to Purchaser a duly perfected security interest in all of such Seller's right, title and interest in, to and under the Acquired Assets which are now existing or hereafter arising, and all proceeds thereof to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the Purchase Price of the Acquired Assets purchased from such Seller together with all other obligations of such Sellers hereunder, which security interest shall be prior to all other Liens thereto. Purchaser and its assigns shall have, in each case as attached hereto on addition to the date hereof. The reserves for doubtful accounts established by rights and remedies which they may have under this Agreement, all other rights and remedies provided to a secured creditor under the Company UCC and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or other applicable law, which rights and remedies shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablescumulative.

Appears in 1 contract

Samples: Asset Purchase Agreement (Divine Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueThe Receivables arose in the ordinary course of business, correct consistent with past practices, represented bona fide claims against debtors for sales and complete listing other charges, and aging have been collected or are collectible in the book amounts thereof, less an amount not in excess of the Company's allowance for doubtful accounts receivable provided for in the 2011 Balance Sheet. Allowances for doubtful accounts and warranty returns as reflected in the Financial Statements have been prepared in accordance with GAAP consistently applied and in accordance with Seller’s past practices (except to the extent that modification was necessary for GAAP purposes) and are sufficient to provide for any losses which may be sustained on realization of the last day receivables. The Receivables arising after the 2011 Balance Sheet and before the Closing Date arose or shall arise in the ordinary course of business, consistent with past practices, represented or shall represent bona fide claims against debtors for sales and other charges, and have been collected or are collectible in the last full calendar month preceding the date hereof book amounts thereof, less allowances for doubtful accounts and warranty returns determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, Seller’s past practices (except to the extent that reserves modification was necessary for GAAP purposes) which are or shall be sufficient to provide for any losses which may be sustained on realization of the receivables. None of the Receivables is subject to any claim of offset, recoupment, setoff or counter-claim, and to the knowledge of Seller and the Principal Shareholders, no facts or circumstances exist (whether asserted or unasserted) that could reasonably give rise to any such claim. No Receivables are contingent upon the performance by Seller of any obligation or contract other than normal warranty repair and replacement. Except for Liens which will be discharged or released at or prior to Closing, no Person has any Lien on any of such accounts receivable, and no agreement for deduction or discount has been made with respect to any of such accounts receivable. Schedule 4.02(f) of the Disclosure Letter sets forth an accurate list of the Receivables, an aging of the Receivables in the aggregate and by customer, and indicates the amounts of allowances for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15warranty returns, in each case as attached hereto of June 30, 2012. Schedule 4.02(f) of the Disclosure Letter sets forth such amounts of the Receivables which are subject to asserted warranty claims by customers and reasonably detailed information regarding asserted warranty claims made within the last year, including the type and amounts of such claims. Such Receivables are collectible in the amounts shown on Schedule 4.02(f) of the date hereof. The reserves Disclosure Letter, net of any allowances for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablestherein.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sciquest Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging All accounts receivable of the Company's accounts receivable Company that are reflected on the balance sheet of the Financial Statements as of the last day of Closing Date (collectively, the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions “Accounts Receivable”) represent or will represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business and business. Unless paid prior to the Closing, the Accounts Receivable are valid and binding obligations or will be as of the account debtorsClosing current and collectible net of the allowance for doubtful debts (“Allowances”) shown on the balance sheet as of the Closing (which Allowances are adequate and calculated consistent with past practice and, in the case of the Allowances as of the Closing, will not represent a Material Adverse Change in the composition of such Accounts Receivable in terms of aging). Such accounts receivable are not subject Subject to counterclaims the Allowances, each of the Accounts Receivable either has been or will be collected in full, without any set-offs off, within 120 days (or with the consent of the Buyer (such consent not to be unreasonably withheld or delayed) such longer time as may be requested by Seller from time to time) after the day on which it first becomes due and are collectible in full payable. There is no contest, claim, or right of set-off, other than returns in the ordinary course of business within business, under any contract with any obligor of an Accounts Receivable relating to the amount or validity of such Accounts Receivable. Buyer hereby represents and warrants that if Closing takes place before the expiration of such 120 days (or such longer time as may be allowed under this Section) in respect of the relevant invoice dateany Accounts Receivable, except Buyer (i) shall use its best efforts to the extent that reserves for doubtful accounts have been established by the Company collect such Accounts Receivable; and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30ii) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation prior consent of Buyer (such consent not to be unreasonably withheld or delayed), Seller may also assist Buyer in the Financial Statements (the "Closing Date Receivables"), to be appended as part collection of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesAccounts Receivable.

Appears in 1 contract

Samples: Stock Purchase Agreement (VelaTel Global Communications, Inc.)

Accounts Receivable. SCHEDULE 3.15 is On the Closing Date, Sellers shall deliver to Buyer a truestatement showing the name and amount of each account receivable of each Facility for services or goods performed or provided by such Facility before the Closing Date (the “Pre-Closing Accounts Receivable”), correct and complete listing and which statement shall also set forth the aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions receivable. Buyer shall perform the initial billing, rebilling and collections in the ordinary course of business and are valid and binding obligations of Pre-Closing Accounts Receivable for the benefit of Sellers for a period of two (2) months following the Closing Date in respect of which Buyer shall be entitled to indemnity pursuant to Section 7.2 hereof for Buyer’s documented costs of the account debtorspersonnel performing such services. Such All payments received by Buyer or Seller for services or goods performed or provided by the Facilities which have indicated on the check or other information accompanying the payment the period of care for which the payment is being made shall be applied to satisfaction of the Pre-Closing Accounts Receivable or the accounts receivable are not subject to counterclaims of Buyer arising on or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter“Post-Closing Accounts Receivable”), as the Shareholders will deliver to Buyer a truecase may be, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation specification made by the payor. All payments received by the Buyer or any Seller that do not have indicated on the check or otherwise in a written communication from the Financial Statements (person or entity making the "payment the period of care for which the payment is being made shall be applied to satisfaction of the Pre-Closing Date Receivables")Accounts Receivable first. Any excess remaining after such Pre-Closing Accounts Receivable shall have been paid shall be applied to satisfaction of the Post-Closing Accounts Receivable. If at any time that Buyer receives any payment which, under the terms of this paragraph, is to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As applied toward payment of the Pre-Closing DateAccounts Receivable, within five (5) days after the end of each month, Buyer shall forward such amounts received during such month to Sellers, and at any time that any Seller receives any payment which, under the terms of this paragraph, is to be applied toward payment of the Post-Closing Accounts Receivable, within five (5) days after the end of each month, Sellers shall forward such amounts received during such month to Buyer. Buyer and Sellers shall each certify monthly for eighteen (18) months after the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice dateamount, except to the extent that reserves for doubtful accounts are established by the Company and are set forth if any, so received on the Financial Statements other party’s account. Each party shall have the right to audit and SCHEDULE 3.15, in each case as attached hereto on inspect the date hereof. The reserves for doubtful accounts established by the Company other’s books and reflected or records (no more than four times annually) to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesverify such certifications.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Kindred Healthcare, Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueFor any Eligible Account and Eligible Foreign Account in any Borrowing Base Certificate, all statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing such Eligible Accounts and Eligible Foreign Accounts are and shall be true and correct and complete listing all such invoices, instruments and aging other documents, and all of Borrower’s Books are genuine and in all respects what they purport to be. Whether or not an Event of Default has occurred and is continuing, Bank may notify any Account Debtor owing Borrower money of Bank’s security interest in such funds and verify the Company's amount of such Eligible Account and Eligible Foreign Account. All sales and other transactions underlying or giving rise to each Eligible Account and Eligible Foreign Account shall comply in all material respects with all applicable laws and governmental rules and regulations. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any Account Debtor whose accounts receivable as are Eligible Accounts or Eligible Foreign Accounts in any Borrowing Base Certificate. To the best of the last day of the last full calendar month preceding the date hereof determined Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to all Eligible Accounts and Eligible Foreign Accounts are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with GAAP consistently applied and determined in a manner consistent with their terms.” 8 The Loan Agreement shall be amended by inserting the presentation in following new text, appearing at the Financial Statements. All end of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than Section 6.2 thereof: (c) Within thirty (30) days thereafterafter the last day of each month, the Shareholders will deliver to Buyer Bank with the monthly financial statements, (i) a trueduly completed Borrowing Base Certificate signed by a Responsible Officer, correct and complete listing and aging (ii) aged listings of the Company's accounts receivable as of the day immediately preceding the Closing Date determined and accounts payable (by invoice date). (d) During an Asset Based Period, unless a Streamline Period is then in accordance with GAAP consistent with the presentation in the Financial Statements effect, deliver to Bank, weekly, and upon each request for a Credit Extension, a Transaction Report. (the "Closing Date Receivables"), e) Allow Bank to be appended as part of SCHEDULE 3.15 heretoaudit Borrower’s Collateral at Borrower’s expense. SCHEDULE 3.15 Such audits shall be deemed amended to include conducted no more often than one (1) time per calendar year (or, during an Asset Based Period, two (2) times per calendar year) unless an Event of Default has occurred and is continuing. Borrower acknowledges that the first such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business audit will occur within 120 sixty (60) days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. 2009 Effective Date.” 9 The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or Loan Agreement shall be determined in accordance with GAAP consistently applied and are and shall be consistent with amended by deleting the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.following appearing as Section 6.7 thereof:

Appears in 1 contract

Samples: Loan Modification Agreement (Finisar Corp)

Accounts Receivable. SCHEDULE 3.15 is a true(a) If requested by Administrative Agent, correct each Borrower shall notify Administrative Agent immediately of all material disputes and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All claims by any Account Debtor of such accounts receivable have arisen in bona fide arm's length transactions Borrower or any Designated Subsidiary of such Borrower and, if reasonably requested by Administrative Agent after the occurrence and during the continuance of an Event of Default, settle or adjust them, or cause them to be settled or adjusted, at no expense to Agents or Lenders. If Administrative Agent directs after the occurrence and during the continuance of an Event of Default, no discount or credit allowance shall be granted thereafter by either Borrower or any Designated Subsidiary to any Account Debtor, other than discounts and trade allowances offered in the ordinary course of business a Borrower's or a Designated Subsidiary's business. All Account Debtor payments and all net amounts received by any Agent in settlement, adjustment or liquidation of any Account Receivable may be applied by such Agent to the Liabilities or credited to the applicable Demand Deposit Account (subject to collection), as more fully described in Section 2.11. If requested by Administrative Agent, each Borrower will, and will cause each Designated Subsidiary to, make proper entries in its books and records, disclosing the assignment of Accounts Receivable to Administrative Agent, for the benefit of Agents and Lenders. (b) Each Borrower warrants and covenants that: (i) all of its Accounts Receivable are valid and binding will continue to be bona fide existing obligations created by the sale of goods, the rendering of services, or the furnishing of other good and sufficient consideration to Account Debtors in the regular course of business; (ii) all shipping or delivery receipts and other documents furnished or to be furnished to Administrative Agent in connection therewith are and will be genuine; and (iii) none of the account debtors. Such accounts receivable are not subject Accounts Receivable identified or included on any schedule, Borrowing Base Certificate or report as Eligible Account Receivable fail at the time so identified or included to counterclaims or set-offs satisfy any of the requirements for eligibility set forth in the definition of Eligible Account Receivable. (c) Administrative Agent and, at the direction of Administrative Agent, each applicable Funding Agent, is hereby authorized and are collectible empowered (which authorization and power, being coupled with an interest, is irrevocable until the last to occur of termination of this Agreement and payment and performance in full of all of the Payment Liabilities under this Agreement) at any time in its sole and absolute discretion: (i) To request, in the ordinary course name of business within 120 days such Agent, in a Borrower's or a Designated Subsidiary's name or the name of a third party, confirmation from any Account Debtor or party obligated under or with respect to any Collateral of the relevant invoice dateamount shown by the Accounts Receivable or other Collateral to be payable, or any other matter stated therein; (ii) To endorse in a Borrower's or a Designated Subsidiary's name and to collect any chattel paper, checks, notes, drafts, instruments or other items of payment tendered to or received by such Agent in payment of any Account Receivable or other obligation owing to such Borrower or such Designated Subsidiary; (iii) After the occurrence and during the continuance of an Event of Default, to notify, either in such Agent's name or a Borrower's or a Designated Subsidiary's name, and/or to require such Borrower or such Designated Subsidiary to notify, any Account Debtor or other Person obligated under or in respect of any Collateral, of the fact of Administrative Agent's Lien thereon, for the benefit of Agents and Lenders, and of the collateral assignment thereof to Administrative Agent, for the benefit of Agents and Lenders; (iv) After the occurrence and during the continuance of an Event of Default, to direct, either in a Borrower's or a Designated Subsidiary's name or such Agent's name, and/or to require such Borrower or such Designated Subsidiary to direct, any Account Debtor or other Person obligated under or in respect of any Collateral to make payment directly to such Agent of any amounts due or to become due thereunder or with respect thereto; and (v) After the occurrence and during the continuance of an Event of Default, to demand, collect, surrender, release or exchange all or any part of any Collateral or any amounts due thereunder or with respect thereto, or compromise or extend or renew for any period (whether or not longer than the initial period) any and all sums which are now or may hereafter become due or owing upon or with respect to any of the Collateral, or enforce, by suit or otherwise, payment or performance of any of the Collateral either in such Agent's own name or in the name of a Borrower or a Designated Subsidiary. Under no circumstances shall any Agent be under any duty to act in regard to any of the foregoing matters. The costs relating to any of the foregoing matters, including Attorneys' Fees and out-of-pocket expenses, and the cost of any Depository Account, Assignee Deposit Account, or other bank account or accounts which may be required hereunder, shall be borne solely by the applicable Borrower whether the same are incurred by any Agent or such Borrower, and Administrative Agent may after three (3) Banking Days' prior to notice to such Borrower direct the applicable Funding Agent to advance same to such Borrower as a Revolving Loan. (d) PAAC will notify its Account Debtors to make all payments in respect of such Borrower's Accounts Receivable directly to one or more lockbox accounts evidenced by agreements in form and substance satisfactory to Administrative Agent. At the request of Administrative Agent, PCI Canada will also notify its Account Debtors to make all payments in respect of PCI Canada's Accounts Receivable directly to one or more lockbox accounts evidenced by agreements in form and substance satisfactory to Administrative Agent. All deposits to such lockbox accounts, and all of the checks, drafts, cash and other remittances received by each Borrower in payment or as proceeds of, or on account of, any of the Accounts Receivable or other Collateral, shall be deposited in special bank accounts (the "Depository Accounts") of such Borrower at such banks or financial institutions as Administrative Agent shall consent. Said proceeds shall be deposited in precisely the form received except for such Borrower's endorsement where necessary to permit collection of items, which endorsement such Borrower agrees to make. Pending such deposit, each Borrower agrees not to commingle any such checks, drafts, cash and other remittances received by it with any of its funds or property, but will hold them separate and apart therefrom and upon an express trust for Administrative Agent, for the benefit of Agents and Lenders, until deposit thereof is made in the applicable Depository Accounts. All funds in the Depository Accounts of a Borrower at the end of each Banking Day will be wire transferred or otherwise transferred as directed by such Borrower; provided, that at Administrative Agent's option at any time after the outstanding principal balance of the Loans to either Borrower exceeds the U.S. Dollar Equivalent of $5,000,000 (whether or not the outstanding principal balance of such Loans subsequently falls below such amount), all such funds in the Depository Accounts of such Borrower at the end of each Banking Day will be wire transferred or transferred by other means acceptable to Administrative Agent to a special bank account (collectively, the "Assignee Deposit Accounts") relating to such Borrower and (i) in the case of PAAC, located at BOA, and (ii) in the case of PCI Canada, located at BAC, in each case over which Administrative Agent and the applicable Funding Agent alone has power of withdrawal. Each Borrower acknowledges that the maintenance of the Assignee Deposit Accounts will be solely for the convenience of Agents in facilitating their own operations, and such Borrower does not and shall not have any right, title or interest in any Assignee Deposit Account or in the amounts at any time appearing to the credit thereof, except to the extent that reserves such amounts are transferred to such Borrower's Demand Deposit Account or operating account in accordance with Section 2.11(b)(i). Each Borrower agrees not to maintain any depository accounts other than accounts provided for doubtful under the Contingent Payment Agreement, Depository Accounts, the Demand Deposit Account and the Assignee Deposit Accounts established pursuant to this Section 3.2(d). Upon the full and final liquidation of all Payment Liabilities, each Agent will pay over to Borrowers any excess amounts received by such Agent as payment or proceeds of Collateral, whether received by such Agent as a deposit in an Assignee Deposit Account, contained in a lockbox account or any Depository Account or received by such Agent as a direct payment on any of the sums due hereunder. Each Borrower will cause each of its Designated Subsidiaries to establish accounts have been established by the Company and are comparable to those set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onabove for the collection of the proceeds of their Accounts Receivable, and such Borrower shall cause each such Designated Subsidiary to take all other actions to implement the collection mechanism set forth in this Section 3.2(d). (e) Each Borrower appoints Administrative Agent, or any Person whom Administrative Agent may from time to time designate (including without limitation the applicable Funding Agent), as such Borrower's attorney and agent-in-fact with power: (i) after the occurrence and during the continuance of an Event of Default to notify the post office authorities to change the address for delivery of such Borrower's mail to an address designated by Administrative Agent or such other Person; (ii) to receive, open and dispose of all mail addressed to such Borrower, but received by Administrative Agent or such other Person; (iii) to send requests for verification of Accounts Receivable or other Collateral to Account Debtors; (iv) to open an Assignee Deposit Account, Depository Accounts, lockbox accounts or other accounts under Administrative Agent's or such other Person's sole control for the collection of Accounts Receivable or other Collateral, if not required contemporaneously with the execution hereof; and (v) to do all other things which any Agent is permitted to do under this Agreement or any Related Agreement or which are consistent reasonably necessary to carry out this Agreement and the Related Agreements. Neither any Agent nor any of its directors, officers, employees or agents will be liable for any acts of commission or omission nor for any error in judgment or mistake of fact or law, unless the same shall have resulted from gross negligence or willful misconduct. The foregoing appointment and power, being coupled with presentation inan interest, is irrevocable until all Payment Liabilities under this Agreement are paid and performed in full and this Agreement is terminated. Each Borrower expressly waives presentment, demand, notice of dishonor and protest of all instruments and any other notice to which it might otherwise be entitled. (f) If any Account Receivable or Contract Right, in either case in excess of the U.S. Dollar Equivalent of $2,000,000, and designated by a Borrower as an Eligible Account Receivable, arises out of a contract with the United States or any state or local governmental entity, or any department, agency, or instrumentality of any thereof or Her Majesty in right of Canada or any provincial or local governmental entity, or any ministry, department, agency or instrumentality of any thereof, or if such Accounts Receivable and Contract Rights so designated as Eligible Accounts Receivable are in an aggregate amount in excess of the U.S. Dollar Equivalent of $10,000,000, the applicable Borrower will, or will cause the applicable Designated Subsidiary to, immediately notify Administrative Agent in writing and execute any instruments and take any steps reasonably required by Administrative Agent in order that all monies due and to become due under such contract shall be assigned to Administrative Agent or its agent, for the benefit of Agents and Lenders, and notice thereof given to the applicable government under the Federal Assignment of Claims Act of 1940, as amended, the Financial Statements attached hereto on Administration Act, as amended or other applicable laws or regulations, and any other applicable requirements thereof shall be satisfied. The failure of a Borrower or a Designated Subsidiary to comply with this clause (f) shall not by itself constitute an Event of Default; rather, such failure will cause the date hereof. Promptly after applicable Account Receivable or Contract Right to be deemed not to be an Eligible Account under this Agreement. (g) If any Account Receivable or Contract Right is evidenced by chattel paper or promissory notes, trade acceptances, or other instruments for the Closing Date but in no event later than thirty (30) days thereafterpayment of money, the Shareholders applicable Borrower will or will cause its Designated Subsidiary to, unless Administrative Agent shall otherwise agree, deliver the originals of same to Buyer a trueAdministrative Agent or its agent, correct and complete listing and aging appropriately endorsed to Administrative Agent's (or such agent's) order and, regardless of the Company's accounts receivable as form of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables")such endorsement, to be appended as part such Borrower hereby expressly waives presentment, demand, notice of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As dishonor, protest and notice of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business protest and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve all other notices with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesthereto.

Appears in 1 contract

Samples: Loan and Security Agreement (Pioneer Companies Inc)

Accounts Receivable. SCHEDULE 3.15 (a) Following Closing, the Buyers shall: (i) act in good faith and use commercially reasonable efforts to collect any and all Accounts Receivable outstanding as of Closing; (ii) apply any payment received by the Buyers or any member of Buyer Parent’s Group with respect to Accounts Receivable outstanding as of Closing, unless otherwise required by applicable Law, first to any outstanding Accounts Receivable balance of such payer as of Closing until such outstanding Accounts Receivable balance is a truezero; and (iii) not, correct and complete listing and aging shall ensure that no member of Buyer Parent’s Group shall, extend the due date for payment of any Accounts Receivable outstanding as of Closing beyond its regular due date or the dates on which the Accounts Receivable would have been collected in the Ordinary Course of Business (as conducted as of Closing) or agree to write down or write off any such Accounts Receivable. (b) If any Accounts Receivable outstanding as of Closing remains outstanding as of ten (10) Business Days prior to the Closing Statement Date, then (i) the applicable Buyer shall notify the Sellers in writing, at least eight (8) Business Days prior to the Closing Statement Date, of all such outstanding Accounts Receivable, together with all other relevant details with respect to such Accounts Receivable (including identity of the Company's accounts receivable as customer, invoice information and amounts outstanding), and (ii) until and including the date that is two (2) Business Days prior to the Closing Statement Date, the Sellers may request in writing that the applicable Buyer shall use commercially reasonable efforts to (or to ensure) that any applicable member of Buyer Parent’s Group shall assign in writing such Accounts Receivable to the Sellers or their respective designees for no additional payment and permit the Sellers or such designee to pursue the recovery of such Accounts Receivable directly and for such Seller’s or such designee’s (or any applicable member of the last day Sellers’ Group’s) own account. If a Buyer does not timely execute and deliver to the Sellers the assignments or confirmations in Section 5.13(b)(i) or Section 5.13(b)(ii), as applicable, prior to the Closing Statement Date, then the total amount of such Accounts Receivable will be included as in the Net Working Capital Closing Statement as if such total amount was collected, as set forth in clause 2(B)(5) of Part 1 of Exhibit F. If a Buyer timely executes and delivers to the Sellers the assignments or confirmations in Section 5.13(b)(i) or Section 5.13(b)(ii), as applicable, prior to the Closing Statement Date, then a Buyer and any such applicable member of Buyer Parent’s Group shall cooperate in any collection endeavors of the last full calendar month preceding Sellers and their respective Affiliates (other than, after Closing, the date hereof determined Dutch Entity) in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All respect of such accounts receivable have arisen in bona fide arm's length transactions in Accounts Receivable, including executing any applicable documents required to pursue such collection. Upon collection of any amounts pursuant to Section 5.13(b)(ii), the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except applicable Buyer shall pay over to the extent that reserves for doubtful accounts have been established Sellers an amount equal to such collected amounts received by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly such Buyer or any member of Buyer Parent’s Group within ten (10) Business Days of collection. (c) If at any time after the Closing Statement Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to a Buyer or any member of Buyer Parent’s Group receives a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve payment from a Third Party with respect to any Accounts Receivable balance outstanding as of Closing which was not reflected in the Closing Date Receivables exceed 1% Statement, then the applicable Buyer shall within no more than ten (10) Business Days after receipt of such payment, promptly transfer, or cause to be transferred, such amount to the Sellers and provide a general explanation or description of the total face amount of Accounts Receivable to which the Closing Date Receivablespayment relates.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Stepan Co)

Accounts Receivable. SCHEDULE 3.15 is a trueAll Accounts Receivable, correct unbilled invoices, costs in excess of xxxxxxxx, work in process, retainage and complete listing other amounts (“Receivables”) reflected on the Most Recent Balance Sheet and aging in the records and books of account of the Company's accounts receivable Companies since the Most Recent Balance Sheet Date and through the Closing Date as being due to the Companies have arisen in the Ordinary Course of Business, represent Enforceable (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws and general principles of equity (regardless of whether such enforceability is considered in a proceeding of law or equity)) obligations to the Companies arising from sales actually made or services actually performed by the Companies in the Ordinary Course of Business and, subject only to consistently recorded reserves for bad debts established as of a date prior to the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined Closing Date in a manner consistent with the presentation past practice, have been, or will be, current and collected or are, or will be, collectible in the Financial Statementsaggregate recorded amounts thereof materially in accordance with their terms and, to the Sellers’ knowledge, are not and will not be subject to any contests, claims, counterclaims or setoffs. All of such accounts receivable have arisen in bona fide arm's length transactions There has been no material adverse change since the Most Recent Balance Sheet Date in the ordinary course of business and are valid and binding obligations amount or collectability of the account debtors. Such accounts receivable are not subject Receivables due to counterclaims the Companies or set-offs and are collectible in full the related provisions or reserves from that reflected in the ordinary course Most Recent Balance Sheet. Schedule 2.10 contains a complete and correct list of business within 120 days all Receivables as of the relevant invoice dateMost Recent Balance Sheet Date, except which list sets forth: (a) the aging of each Receivable; and (b) with respect to Receivables for services, the extent that reserves for doubtful accounts have been established type of Contractual Obligation underlying the Receivable (such as fixed price or time and expense or a combination or variation thereof). Schedule 2.10 sets forth the standard billing practices of the Companies with respect to goods and services provided by the Company Companies, including the billing periods and are the types of Contractual Obligations. Except as set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onSchedule 2.10, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but (i) no account debtor or note debtor is delinquent for payments in excess of Twenty-Five Thousand Dollars (US$25,000) or for more than ninety (90) days; (ii) no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables")account debtor or note debtor has refused or, to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended the Sellers’ knowledge, threatened to include such listing upon delivery refuse to Buyer thereof. As of pay its obligations to the Closing DateCompanies for any reason, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject or has otherwise made a claim to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except off or similar claim; (iii) to the extent that reserves for doubtful accounts Sellers’ knowledge, no account debtor or note debtor is insolvent or bankrupt; and (iv) all accrued fees are established billable and collectible by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesCompanies.

Appears in 1 contract

Samples: Asset Purchase Agreement (Vapor Corp.)

Accounts Receivable. SCHEDULE 3.15 is (a) Within ten (10) business days prior to the Transfer Date, Tenant shall provide Assignee with a true, correct and complete detailed listing and aging of the CompanyTenant's accounts receivable which are anticipated to be outstanding on the Transfer Date. (b) From and after the Transfer Date, Assignee shall assume responsibility for the billing for and collection of payments on account of services rendered or goods sold by it on and after the Transfer Date and Tenant shall retain all right, title and interest in and to and all responsibility for the collection of its accounts receivable for services rendered or goods sold prior to the Transfer Date. (c) Payments received by Assignee from and after the Transfer Date from private pay residents and third party payors shall be handled as of follows: (i) If such payments either specifically indicate on the last day of check or on an accompanying remittance advice, or if Tenant and Assignee agree, that they relate to the last full calendar month preceding period prior to the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent Transfer Date, they shall be forwarded to Tenant by Assignee, along with the presentation in applicable remittance advice (if separate from the Financial Statements. All form of payment), within five (5) business days after receipt thereof. (ii) If such accounts receivable have arisen in bona fide arm's length transactions in payments indicate on the ordinary course of business check or on an accompanying remittance advice, or if Tenant and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice dateAssignee agree, except that they relate to the extent that reserves for doubtful accounts have been established period on or after the Transfer Date they shall be retained by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto Assignee. (iii) If such payments indicate on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 check or on the Financial Statements have been accompanying remittance advice, or if Tenant and Assignee agree, that they relate to periods for which both parties are entitled to payment/reimbursement under the terms hereof, the portion thereof which relates to the period on and after the date on which the Transfer Date shall be determined in accordance with GAAP consistently applied retained by Assignee and are and the balance shall be consistent remitted to Tenant within five (5) business days after receipt thereof. (iv) If such payments do not indicate on the check or on the accompanying remittance advice and if Tenant and Assignee cannot otherwise agree as to the period to which they relate, then any such payments received by Assignee will first be applied by Assignee to reduce the resident's post-Transfer Date balances, with any excess remitted by Assignee to Tenant to reduce the presentation in resident's pre- Transfer Date balances. (d) Tenant shall have the Financial Statements, it being understood that in no event shall the reserve right during normal business hours and on reasonable notice to Assignee to inspect Assignee's books and records with respect to the Closing accounts receivable received by it after the Transfer Date Receivables exceed 1% from residents with balances due as of the total face amount Transfer Date. (e) Nothing herein shall be deemed to limit in any way Tenant's or Assignee's rights and remedies to recover accounts receivable due and owing Tenant or Assignee under the terms of this Agreement. (f) In the Closing Date Receivablesevent the parties mutually determine that any payment hereunder was misapplied by the parties, the party which erroneously received said payment shall remit the same to the other within ten (10) business days after said determination is made.

Appears in 1 contract

Samples: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging of the Company's All accounts receivable of Nexstar that relate to WMBD-TV and that are reflected on Nexstar Financial Statements (as defined in these Schedules) or on the accounting records of WYZZ as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with (collectively, the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions "Accounts Receivable") represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business business. Except as stated in Schedule 13P to this Exhibit, the Accounts Receivable are current and collectable, net of 6 <PAGE> the reserves shown on the Nexstar Financial Statements (which reserves are valid adequate and binding obligations calculated consistent with past practice) or on the accounting records of the account debtorsNexstar. Such accounts receivable are not subject to counterclaims There is no contest, claim, or set-offs and are collectible in full right of setoff, other than returns in the ordinary course of business within 120 days business, under any contract with any obligor of an Accounts Receivable relating to the amount or validity of such Accounts Receivable. Nexstar's financial records include a complete and accurate list of all Accounts Receivable. 14P. Financial Statements. Nexstar has delivered to WYZZ (and same are attached hereto as Schedule 14P to this Exhibit) the audited (or, if not available, unaudited) balance sheet, statement of operations and accumulated deficits, and statement of cash flows for WMBD-TV for the two (2) fiscal years immediately preceding the date of this Agreement as well as the unaudited balance sheet, income statement and statement of cash flows for the interim period beginning at the close of Nexstar's most recent fiscal year and ending on September 30, 2001 (collectively, the "Nexstar Financial Statements"). The Nexstar Financial Statements are sufficient to determine the BCF of WMBD-TV, which Nexstar Financial Statements, Nexstar acknowledges have been used to form the basis of the relevant invoice dateprovisions of Section 2 hereof. The Nexstar Financial Statements submitted in connection with this Agreement (including, in all cases, the notes thereto, if any) (i) is accurate and complete in all material respects; (ii) is consistent in all material respects with the books and records of WYZZ; (iii) fairly presents in all material respects the financial condition and results of the operations of WMBD-TV consistently applied; and (iv) have been prepared in accordance with GAAP (except, to the extent not audited, for the absence of footnotes and certain year-end adjustments). None of the Nexstar Financial Statements understates in any material respect the normal and customary costs and expenses in conducting the business or operations of WMBD-TV as currently conducted by Nexstar or otherwise materially inaccurately reflects the operations of WMBD-TV. 15P. Contracts. Schedule 15P to this Exhibit lists all written Contracts and true and complete descriptions of all oral contracts (including any amendments or other modifications to such Contracts). All of the Contracts are in full force and effect, and are valid, binding, and enforceable in accordance with their terms except as to the enforceability of such contracts may be effected by bankruptcy, insolvency, or similar laws affecting creditors' rights generally and by judicial discretion in the enforcement of equitable remedies. Nexstar is not and, to the knowledge of Nexstar, no other party to such contracts is in default, violation, or breach in any material respect under any contract, and no event has occurred and is continuing that constitutes (with notice or passage of time or both) a default, violation, or breach in any material breach thereunder. To the knowledge of Nexstar, no party to any Contract has any intention to (a) terminate such Contract or amend the terms thereof; (b) refuse to renew any contract upon expiration of its term; or (c) renew the Contract upon expiration only on terms and conditions that are more onerous to those now existing. For purposes of this Agreement, "Contracts" means all contracts, consulting agreements, leases, non-governmental 7 <PAGE> licenses and other agreements (including leases for personal or real property and employment agreements), written or oral (including any amendments and other modifications thereto), to which Nexstar is a party or that are binding upon Nexstar and that relate to or effect the assets, properties, business, or operations of the Nexstar Station that are in effect as of the Effective Date. 8 <PAGE> EXHIBIT G [List of Transferred Employees] Schedule 7L is hereby incorporated herein by reference except to the extent that reserves for doubtful accounts have been established by included on such Schedule are the Company and are set forth names of those Employees listed on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereofExhibit E. 9 <PAGE> EXHIBIT H [Initial Operating Budget] See attached. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.10 <PAGE> EXHIBIT I [Terminated Employees Positions] See Attached 11 </TEXT> </DOCUMENT>

Appears in 1 contract

Samples: Outsourcing Agreement

Accounts Receivable. SCHEDULE 3.15 is a true, correct Buyer agrees to fully cooperate with and complete listing and aging assist the Xxxxxxx Entities in their collection of the Company's accounts receivable as private pay and private portion of Medicaid receivables, which such portion of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice datereceivables shall be processed, except to the extent that reserves permitted by applicable law, first-in-first-out ("FIFO") for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafterfollowing the Closing, and thereafter last-in-first-out ("LIFO"). It is further agreed that, in connection with the Shareholders will deliver non-private pay portion of Medicare and Medicaid receivables, collections relating to patients and residents who continue to reside at the Facilities after the Effective Time shall be applied to the account and period specified by the paying agency until the account is liquidated. Buyer a truefurther agrees to make available to the Xxxxxxx Entities reasonably adequate space, correct equipment, and complete listing and aging facilities at the Facilities to permit an employee of the Company's Xxxxxxx Entities to review and process the accounts receivable as of after the day immediately preceding the Closing Date determined in accordance Effective Time, and to provide such employee with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except access to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve collection records with respect to the Closing patients and residents owing such accounts receivable. Any funds received by Buyer which are due and payable to the Xxxxxxx Entities under this Section 8.2.11 shall be deemed to be held in trust by Buyer for the Xxxxxxx Entities' benefit and shall be remitted to the Xxxxxxx Entities no less frequently than once a month beginning fifteen (15) days after the Closing. Buyer shall assume responsibility for the billing for and collection of payments on account of services rendered by it at the Facilities on and after the Effective Time. The Xxxxxxx Entities shall retain all rights in and title to the Accounts Receivable prior to the Effective Date Receivables exceed 1% and shall retain full responsibility for the collection thereof. The Xxxxxxx Entities agree that they may not institute legal action against any current resident at one of the total face amount Facilities in order to collect the Accounts Receivable without Buyer's prior written consent, which shall not be unreasonably withheld; provided, however, that with respect to any current resident for which consent is reasonably withheld, all payments received on behalf of such resident shall thereafter be processed, to the extent permitted by applicable law, on a FIFO basis until the Xxxxxxx Entities are paid in full. All third party payor payments (Medicare, Medicaid, etc.) received by Buyer from and after the Effective Time shall relate to the pre-Effective Time or post-Effective Time account of the Closing Date Receivablesresident for whom the payment is made in accordance with the dates of service indicated on the remittance, and Buyer shall remit to the applicable Xxxxxxx Entities within fifteen (15) business days of its receipt thereof any payment received by Buyer that applies to a pre-Effective Time account, together with a copy of the remittance advice. In addition, Buyer shall remit to the Xxxxxxx Entities within fifteen (15) business days of its receipt thereof any repayment or reimbursement received by Buyer arising out of cost reports filed for the cost reporting period ending prior to the Effective Time. The Xxxxxxx Entities agree that any payment, whether received by the Xxxxxxx Entities from private pay patients or as repayment or reimbursement arising out of cost reports, that pertain to the period from and after the Effective Time shall be remitted by the Xxxxxxx Entities to Buyer within fifteen (15) business days of the Xxxxxxx Entities' receipt thereof to be applied and/or disbursed by Buyer in accordance with the terms of this Section.

Appears in 1 contract

Samples: Agreement for Sale of Nursing Home Properties (Beverly Enterprises Inc)

Accounts Receivable. SCHEDULE 3.15 is a trueIf, correct and complete listing and aging as of March 31, 2012, the Company has not collected in full without set-off or counterclaim all of the Company's accounts receivable Receivables (as defined below) after using commercially reasonable efforts, then Buyer may recover from the Indemnity Escrow, subject to the Representation and Warranty and Covenant Cap and the Shareholder Basket and the provisions of Section 6 related thereto, the amount of the Receivables that has not been collected as of the last day such date; provided that if any retainage Receivables or notes Receivables have not been collected prior to such date, Buyer shall only be entitled to receive that portion of the last full calendar month preceding the date hereof determined retainage Receivable or notes Receivable that Buyer believes in good faith will not be collectible in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in Company’s customary business practices. On or before May 30, 2012, Buyer will deliver to the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations Shareholders its good faith estimate of the account debtorstotal amount of Receivables it reasonably believes will not be so collected or collectible, as applicable, by June 30, 2012, and for which Buyer is entitled to recourse under this Section 3.4. Such accounts receivable Buyer’s sole source of recourse for any amounts payable by the Shareholders under this Section 3.4 that are not subject so collected or collectible, as applicable, shall be the Indemnity Escrow. Following any such payment from the Indemnity Escrow and if requested by the Shareholders, (a) Buyer shall assign to counterclaims or set-offs and are collectible the Shareholders (in full in accordance with their respective Pro Rata Portions), any uncollected Receivables for which the ordinary course of business within 120 days of the relevant invoice date, except Shareholders reimbursed Buyer to the extent that reserves for doubtful accounts have been established of their reimbursement, and shall, if requested by the Shareholders, provide, and shall cause the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onits employees to provide, reasonable cooperation to assist the Shareholders in their efforts to collect any such assigned Receivables (provided that none of Buyer, the Company or any of their respective employees shall be required to bear any unreimbursed out-of-pocket costs in connection with providing such cooperation), and (b) Buyer agrees that if uncollected Receivables for which Buyer is paid from the Indemnity Escrow are consistent with presentation insubsequently collected by Buyer, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but Company or any of Buyer’s other Subsidiaries, then Buyer shall promptly (and, in no any event later than thirty within five (305) days thereafter, Business Days of collection) pay a refund to the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined (in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date Receivables"their respective Pro Rata Portions), to be appended as part the extent of SCHEDULE 3.15 heretosuch collections. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As For purposes of this Section 3.4, “Receivables” means all accounts and notes receivable of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business Company (both current and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are retainage) set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the final Closing Date Receivables exceed 1% Balance Sheet (net of the total face amount of the Closing Date Receivablesany reserves).

Appears in 1 contract

Samples: Stock Purchase Agreement (TUTOR PERINI Corp)

Accounts Receivable. SCHEDULE 3.15 is With respect to its Accounts Receivable: Section 10.1.1. Borrower shall deposit all payments received from or on behalf of an Account Debtor into an account established with Bank and Borrower shall direct or otherwise cause all Account Debtors to pay all monies due under their respective Accounts Receivable to a truelockbox account (the "Lockbox Account") maintained by Bank in Borrower's name at Borrower's expense and, correct and complete listing and aging of the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent Borrower receives such payments directly, all remittances received by Borrower on account of Accounts Receivable shall be held as Bank's property by Borrower as trustee of an express trust for Bank's benefit, and Borrower will immediately deliver to Bank the identical checks, moneys or other forms of payment received Borrower hereby constitutes Bank, or any representative whom Bank may designate, as Borrower's attorney-in-fact (i) to endorse the name on any notes, acceptances, checks, drafts, money orders or other evidence of payment or security interest that reserves for doubtful accounts may come into Bank's possession, and (ii) following the occurrence of an Event of Default, to sign Borrower's name on any invoice or xxxx of lading relating to Accounts Receivable, on drafts against customers, assignments and certificates of Accounts Receivable, and notices to customers Bank retains the right at all times after the occurrence of an Event of Default to notify Account Debtors that their respective Accounts Receivable have been established by assigned to Bank and to collect Accounts Receivable directly in its own name and to charge the Company collection costs and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onexpenses, and are consistent with presentation inincluding reasonable attorneys' fees to, the Financial Statements attached hereto on Loan Account Bank has no duty to protect, insure, collect or realize upon the date hereof. Promptly after Accounts Receivable or other collateral or preserve rights in them other than to act in a commercially reasonable manner Borrower releases Bank from any liability for any act or omission relating to the Closing Date but in no event later than thirty (30) days thereafterObligations, the Shareholders will deliver Accounts Receivable or other Collateral or this Agreement, except Bank's failure to Buyer act in a truecommercially reasonable manner, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined willful misconduct or gross negligence All amounts received by Bank in accordance with GAAP consistent with the presentation payment in the Financial Statements (the "Closing Date Receivables"), Accounts Receivable assigned to it are to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except credited to the extent that reserves for doubtful accounts are established Borrower's Account upon receipt by the Company and are set forth on the Financial Statements and SCHEDULE 3.15Bank, conditioned upon collection by Bank of good funds in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivablesthereof.

Appears in 1 contract

Samples: Master Credit Agreement (Aristotle Corp)

Accounts Receivable. SCHEDULE 3.15 is a true(a) At the Closing, correct and complete listing and aging the accounts receivable of the Company's accounts receivable Company and its Subsidiaries as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation in the Financial Statements (the "Closing Date ReceivablesAccounts Receivable"), less a reserve placed in a sub-account of the Escrow in an amount equal to be appended as part ten percent (10%) of SCHEDULE 3.15 hereto. SCHEDULE 3.15 their face amount (the "A/R Reserve Escrow"), shall be deemed amended to include such listing upon delivery to Buyer thereofdetermined. As of the Closing Datedate four (4) months (the "Collection Period') following the Closing, Buyer shall determine in good faith the Closing Date Receivables have arisen in bona fide arm's length transactions in amount, if any, by which the ordinary course Accounts Receivable exceed the actual collection of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims such Accounts Receivable after applying any applicable customer deposits or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected credits made or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect given prior to the Closing Date Receivables exceed 1% with respect to such Accounts Receivable or the transactions giving rise thereto (the "Accounts Receivable Deficiency") at the expiration of such Collection Period. Buyer shall, within twenty (20) days following the expiration of such Collection Period, provide the Sellers with reasonably satisfactory evidence of the total face amount of the Accounts Receivable Deficiency and the components thereof, and subject to the provisos below, shall cause the Company and its Subsidiaries, or their successors or assigns, to assign to the Sellers any such Accounts Receivable which have not been collected within the Collection Period, and any rights to interest and/or penalties relating thereto, provided that: (i) Buyer may elect to cause the Company to retain any such Accounts Receivable, in which event the aggregate amounts of such Accounts Receivable shall be excluded in determining the Accounts Receivable Deficiency; or (ii) Buyer may elect to return the uncollected Accounts Receivable to the Sellers at their book value to determine the Accounts Receivable Deficiency. (b) Except where (i) a customer that owes an Account Receivable is on a COD basis on the day of the Closing, or (ii) Buyer in good faith, causes the Company or its Subsidiaries, or their successors in interest, to convert a customer to COD basis after Closing, the first payments received by the Company or its Subsidiaries, or their successors in interest, from such customer shall be applied to the payment of the oldest outstanding balance of such customer's account. Payments made to the Company or its Subsidiaries, or their successors in interest, by any such customer for products sold by the Company or its Subsidiaries, or their successors in interest, on a COD basis shall not be applied to the Accounts Receivable that existed prior to the Closing, but shall be retained exclusively by the Company or its Subsidiaries, or their successors in interest. Buyer agrees to notify Sellers at the time it causes the Company or its Subsidiaries, or their successors in interest, to place any customer on a COD basis. (c) Buyer agrees to use its best efforts to collect Accounts Receivable, but shall not be required to cause the Company or its Subsidiaries to institute legal action for any collection. (d) On or about the date three (3) months after the Closing Date ReceivablesDate, Buyer shall provide Sellers with a status report setting forth in reasonable detail Buyer's collections of, and collection efforts with respect to, the Accounts Receivable and confer with Sellers regarding appropriate steps to be taken to collect unpaid Accounts Receivable. Within twenty-five (25) days after Sellers' receipt of Buyer's written notice of the Accounts Receivable Deficiency, Buyer shall receive from the A/R Reserve Escrow the Accounts Receivable Deficiency, with interest on such Accounts Receivable Deficiency, as earned on such amount under the A/R Reserve Escrow. In the event that the A/R Reserve Escrow is insufficient to satisfy the Accounts Receivable Deficiency, then such insufficiency shall be deducted from the Escrow Fund. In the event the amount of the A/R Reserve Escrow exceeds the Accounts Receivable Deficiency, then the Escrow Agent shall promptly transfer the excess to the Sellers' Representative Escrow and Buyer shall so instruct the Escrow Agent.

Appears in 1 contract

Samples: Stock Purchase Agreement (Heritage Propane Partners L P)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging Borrower will (a) inform Agent immediately of the Company's rejection of goods, claims made or delay in delivery or performance in regard to any account or contract right upon which Borrower has based availability for Line Advances or if any account receivable previously scheduled, listed or referred to in any certificate, statement or report by Borrower and upon which Borrower is basing availability for Advances under the Line ceases to be an Eligible Receivable; (b) adjust the borrowing base calculation under the Line to reduce the availability for Advances under the Line by the amount of any account with respect to which Borrower is required to give Agent notice pursuant to the foregoing subsection (a) and repay any Out-Of-Formula Advance resulting therefrom; (c) make no change in any account upon which Borrower has based availability for Advances under the Line, unless such change is contemporaneously reflected in the borrowing base calculation; (d) furnish to Agent all information received by Borrower affecting the financial standing of any account debtor whose account or contract right has been specifically assigned to Agent; (e) pay Agent the amount loaned against any account or contract right if the goods are returned by purchaser or the contract is canceled or terminated or adjust the borrowing base calculation to reduce the availability for Advances under the Line by the amount of such account and repay any Out-Of-Formula Advance resulting therefrom; (f) · - - immediately notify Agent if any of its accounts receivable as arise out of contracts with the United States or any department, agency or instrumentality thereof, and execute any instruments and take any steps required by Agent in order that all monies due and to become due under such contract shall be assigned to Agent and notice thereof given to the Government under the Federal Assignment of Claims Act; (g) deliver to Agent, with appropriate endorsement or assignment, any instrument or chattel paper representing an account or contract right; (h) furnish to Agent satisfactory evidence of the last day shipment and receipt of any goods specified by Agent and the performance of any services or obligations covered by accounts or contracts in which Agent has a security interest; and (i) pay Agent the unpaid portion of any account or contract right upon which Borrower has based availability for Advances under the Line if (1) such account is not paid promptly after its maturity, (2) an account debtor does not accept the goods or services, (3) any petition under the Bankruptcy Code or any similar federal or state statute is filed by or against a purchaser, or (4) Agent shall at any time reject the account as unsatisfactory; and until such payment is made by Borrower, Agent may retain any such account or contract right as security and may charge any deposit account of Borrower for any such amounts. Any permission granted to Borrower by Agent to omit any of the last full calendar month preceding requirements of this Section 7.27 may be revoked by Agent at any time. Each Obligor will, if requested by Agent, (a) give Agent assignments, in form acceptable to Agent, of specific accounts or groups of accounts and monies due and to become due under specific contracts and specific general intangibles; (b) furnish to Agent a copy, with such duplicate copies as Agent may request, of the date hereof determined in accordance with GAAP consistently applied invoice applicable to each account specifically assigned to Agent or arising out of a contract right, bearing a statement that such account has been assigned to Agent and determined such additional statements as Agent may require; (c) xxxx its records evidencing its accounts in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject satisfactory to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except Agent so as to the extent that reserves for doubtful show which accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onassigned to Agent; (d) join with Agent in executing a financing statement, notice, affidavit, security agreement, assignment or similar instrument, in form satisfactory to Agent, and are consistent with presentation insuch continuation statements and other instruments as Agent may from time to time request and pay the cost of filing the same in any public office deemed advisable by Agent to perfect the liens and security interests granted therein; (e) give Agent such financial statements, reports, certificates, lists of purchasers (showing names, addresses, and amounts owing) and other data concerning its accounts, contracts, collections, inventory, general intangibles and other matters as Agent may from time to time request; (f) segregate cash proceeds of Collateral so that they may be identified readily, and deliver the Financial Statements attached hereto same to the Agent at such time or times and in such manner and form as the Agent may direct; (g) furnish such witnesses as may be necessary to establish legal proof of the Collateral or records relating to the Collateral; and (h) obtain from any owner, encumbrancer, processor, or other person having an interest in the property where any Collateral is located, written consent to Agent's removal of the Collateral therefrom, without liability on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafter, the Shareholders will deliver to Buyer a true, correct and complete listing and aging part of the Company's accounts receivable as Agent to such owner, encumbrancer, processor or other person, or from any such owner, encumbrancer, processor or other person such waivers of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation any interest in the Financial Statements (Collateral as the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date ReceivablesAgent may require.

Appears in 1 contract

Samples: Loan and Security Agreement (Hooper Holmes Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging of (a) Except for the Company's accounts receivable as of the last day of the last full calendar month preceding the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent with the presentation in the Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts have been established by the Company and are amounts set forth on SCHEDULE 3.15 and which reserves have been adequately Schedule 4.08(a), all accounts receivable of the Company (the “Accounts Receivable”) are reflected on, and are consistent with presentation in, the Financial Statements attached hereto properly on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafterCompany’s books and records and represent legal, the Shareholders will deliver to Buyer a truevalid, correct binding and complete listing and aging of the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent with the presentation enforceable obligations arising from sales actually made or services actually performed in the Financial Statements Ordinary Course of Business. The Accounts Receivable are current and will be collected in full within twelve (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of 12) months after the Closing Date, except for bad debt and write-offs that are within the levels of reserves as of the Closing Date Receivables have arisen in bona fide arm's length transactions for the same. There is no contest, claim or right of set-off other than returns in the ordinary course Ordinary Course of business and are valid and binding obligations Business under any Contract with any obligor of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except any Accounts Receivable relating to the extent that reserves amount or validity of such Accounts Receivable. (b) Except for doubtful accounts are established by the Company and are amounts set forth on Schedule 4.08(b), all notes receivable of the Financial Statements and SCHEDULE 3.15, in each case as attached hereto Company (the “Notes Receivable”) are reflected properly on the date hereofCompany’s books and records and represent legal, valid, binding and enforceable obligations owed to the Company arising from the Company’s Ordinary Course of Business. The reserves Notes Receivable are current and will be collected in full within twelve (12) months after the Closing Date. There is no contest, claim or right of set-off with any obligor of any Note Receivable relating to the amount or validity of such Note Receivable. (c) Except for doubtful accounts established by the amounts set forth on Schedule 4.08(c), all costs in excess of xxxxxxxx of the Company and are reflected or to be reflected on SCHEDULE 3.15 or properly on the Financial Statements have been Company’s books and records, and these costs in excess of xxxxxxxx will, after being billed, represent legal, valid, binding and enforceable obligations arising from sales actually made or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation services actually performed in the Financial StatementsOrdinary Course of Business. There is no contest, it being understood that in no event shall the reserve claim or right of set-off under any Contract with respect any obligor relating to the Closing Date Receivables exceed 1% amount or validity of these costs in excess of xxxxxxxx. (d) Except for the amounts set forth on Schedule 4.08(d), all retainage of the total face Company is reflected properly on the Company’s books and records, and this retainage represents legal, valid, binding, and enforceable obligations arising from sales actually made or services actually performed in the Ordinary Course of Business. There is no contest, claim, or right of set-off under any Contract with any obligor relating to the amount or validity of the Closing Date Receivablesthis retainage.

Appears in 1 contract

Samples: Merger Agreement (Comfort Systems Usa Inc)

Accounts Receivable. SCHEDULE 3.15 is a true, correct and complete listing and aging 4.11.1 The accounts receivable ("Receivables") of the Company's accounts receivable as Corporation and of each of the last day Subsidiaries reflected on the consolidated balance sheet of the last full calendar month preceding Corporation included in the Audited Financial Statements are bona fide, have been properly recorded and represent amounts due for goods or services duly sold or rendered or to be rendered in the ordinary course of business, and no claim has been made or threatened with respect to the quality or warranty of such goods and services which has not been disposed of, and the said Receivables are good and collectible, free from any claim or right of set off or counterclaim, except to the extent of any reserves for bad debts reflected in said balance sheet, and all Receivables which have accrued to the Corporation and to each of the Subsidiaries up to the date hereof determined in accordance with GAAP consistently applied and determined in a manner consistent subsequent to the Audit Date comply with the presentation foregoing in all respects except to the extent of reserves for bad debts maintained at substantially the same respective rates as reflected in the said balance sheet. 4.11.2 All Receivables reflected in the Audited Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions Statements or arising since the date thereof up to the Closing Date arose in the ordinary course of business are good and are valid collectible and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims any valid defence, offset or set-offs credit. 4.11.3 For purposes of this Section, all Receivables will be evaluated six (6) months following the Closing ("Evaluation Date"). A Receivable, except for Receivables relating to prearrangement contracts, shall be considered to be good and are collectible if (i) payment has been received in full in on or before the ordinary course of business within 120 days Evaluation Date; or (ii) four scheduled payments, or payments totalling at least 13% of the relevant invoice datecontract price, except to have been received within the 6 month period immediately preceding the Evaluation Date. To the extent that reserves a Receivable is not good and collectible, the Purchase Price shall be reduced by an amount equal to the excess of the balance of all such Receivables at Evaluation Date over the allowance for doubtful accounts set up by the Corporation and reflected in the Closing Financial Statements. The allowance for doubtful accounts set up by the Corporation as of the Closing shall be in accordance with its policy in effect as of December 31, 1995. Notwithstanding anything to the contrary in this Section 4.11.3, Receivables which were guaranteed by the estate of a decedent shall be evaluated twelve (12) months after the Closing, which date shall be the Evaluation Date applicable to such Receivables. Any such Receivable shall not be deemed good and collectible unless paid in full at such time. A Receivable deemed not good and collectible under this Section 4.11.3 shall be conveyed to Vendor who may pursue legal collection efforts consistent with the practices of the Corporation in effect as at December 31, 1995; however, no legal action with respect to any such Receivable may be instituted without the express written consent of Purchasers. 4.11.4 For purposes of this Section, all Receivables relating to prearranged contracts will be evaluated on the Evaluation Date. A Receivable relating to prearranged contracts shall be considered good and collectible at the Evaluation Date if (i) payments have up to the Evaluation Date been made in accordance with the contract terms, or (ii) payments up to the Evaluation Date have been established by made in accordance with a payment schedule revised in accordance with the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected on, and are consistent with presentation in, the Financial Statements attached hereto on Corporation's credit policies in effect as of the date hereof. Promptly after To the Closing Date but in no event later than thirty (30) days thereafterextent that a Receivable is not good and collectible at the Evaluation Date, the Shareholders will deliver Purchase Price shall be reduced by an amount equal to Buyer a true, correct and complete listing and aging the amount of any income previously recognized on the books of the Company's accounts receivable as Corporation in connection with the sale relating to such Receivable which is in excess of the day immediately preceding funds kept by the Closing Date determined Corporation in accordance with GAAP consistent applicable laws in connection with such sale. 4.11.5 On the presentation in the Financial Statements (the "Closing Date Receivables"), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Evaluation Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in Purchase Price will be reduced by the ordinary course of business and are valid and binding obligations amount of the account debtors. Such accounts receivable are Receivables deemed not subject to counterclaims or set-offs good and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are determined as set forth on above and the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve procedures at Section 3.2 hereof with respect to the Closing Date Receivables exceed 1% repayment of such reduction in the total face amount of Purchase Price to the Closing Date ReceivablesPurchaser shall apply mutatis mutandis.

Appears in 1 contract

Samples: Share Purchase Agreement (Stewart Enterprises Inc)

Accounts Receivable. SCHEDULE 3.15 (a) For each Account with respect to which Advances are requested, on the date each Advance is a truerequested and made, such Account shall be an Eligible Account. (b) All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Eligible Accounts are and shall be true and correct and complete listing all such invoices, instruments and aging other documents, and all of Borrower's Books are genuine and in all respects what they purport to be. All sales and other transactions underlying or giving rise to each Eligible Account shall comply in all material respects with all applicable laws and governmental rules and regulations. Borrower has no knowledge of any actual or imminent Insolvency Proceeding of any Account Debtor whose accounts are Eligible Accounts in any Transaction Report. To the Company's accounts receivable as best of the last day of the last full calendar month preceding the date hereof determined Borrower’s knowledge, all signatures and endorsements on all documents, instruments, and agreements relating to all Eligible Accounts are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with GAAP consistently applied their terms.” (k) Section 6.2(a) and determined (b) (Financial Statements, Reports, Certificates). Section 6.2(a) and (b) are amended in a manner consistent their entirety and replaced with the presentation in the following: “ (a) Monthly or Quarterly Financial Statements. All of such accounts receivable have arisen in bona fide arm's length transactions in . (i) If there are Advances outstanding under the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice dateRevolving Line, except to the extent that reserves for doubtful accounts have been established by the Company and are set forth on SCHEDULE 3.15 and which reserves have been adequately reflected onas soon as available, and are consistent with presentation in, the Financial Statements attached hereto on the date hereof. Promptly after the Closing Date but in no event later than thirty (30) days thereafterafter the last day of each month or (ii) if there are no Advances outstanding under the Revolving Line, as soon as available but no later than forty-five (45) days after the Shareholders will deliver end of each fiscal quarter, a company prepared consolidated balance sheet and income statement covering Ultimate Parent and each of its consolidated Subsidiary’s operations for such month or fiscal quarter, as applicable, certified by a Responsible Officer and in a form reasonably acceptable to Buyer a true, correct and complete listing and aging of Bank (the Company's accounts receivable as of the day immediately preceding the Closing Date determined in accordance with GAAP consistent “Monthly Financial Statements”); (b) Monthly or Quarterly Compliance Certificate. Together with the presentation in the Monthly Financial Statements (the "Closing Date Receivables"or quarterly, as applicable), to be appended as part of SCHEDULE 3.15 hereto. SCHEDULE 3.15 shall be deemed amended to include such listing upon delivery to Buyer thereof. As of the Closing Date, the Closing Date Receivables have arisen in bona fide arm's length transactions in the ordinary course of business and are valid and binding obligations of the account debtors. Such accounts receivable are not subject to counterclaims or set-offs and are collectible in full in the ordinary course of business within 120 days of the relevant invoice date, except to the extent that reserves for doubtful accounts are established by the Company and are set forth on the Financial Statements and SCHEDULE 3.15, in each case as attached hereto on the date hereof. The reserves for doubtful accounts established by the Company and reflected or to be reflected on SCHEDULE 3.15 or on the Financial Statements have been or shall be determined in accordance with GAAP consistently applied and are and shall be consistent with the presentation in the Financial Statements, it being understood that in no event shall the reserve with respect to the Closing Date Receivables exceed 1% of the total face amount of the Closing Date Receivables.a duly completed Compliance

Appears in 1 contract

Samples: Loan and Security Agreement (Rosetta Stone Inc)

Draft better contracts in just 5 minutes Get the weekly Law Insider newsletter packed with expert videos, webinars, ebooks, and more!