Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein stated. Since the last date covered by any such statement, there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within 30 days after the end of each month, a monthly financial statement prepared by the Borrower, and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of such month the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #; and (ii) within 120 days following the end of the Borrower's fiscal year, complete annual financial statements, certified by independent certified public accountants acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (i) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-Q REPORT; AND (ii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORT."
Appears in 2 contracts
Samples: Loan and Security Agreement (Sync Research Inc), Loan and Security Agreement (Sync Research Inc)
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein stated. Since the last date covered by any such statement, there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within 30 days after the end of each month, a monthly financial statement prepared by the Borrower, and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of such month the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #; and (ii) within 120 days following the end of the Borrower's fiscal year, complete annual financial statements, certified by independent certified public accountants acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE ALL FINANCIAL STATEMENTS NOW OR OTHER EVIDENCE SATISFACTORY IN THE FUTURE DELIVERED TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH HAVE BEEN, AND WILL BE, PREPARED IN CONFORMITY WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND NOW AND IN THE SCHEDULE FUTURE WILL COMPLETELY AND ACCURATELY REFLECT THE FINANCIAL CONDITION OF THE BORROWER AND EMULEX CORPORATION, A DELAWARE CORPORATION (THE "PARENT"), AT THE TIMES AND FOR THE PERIODS THEREIN STATED. SINCE THE LAST DATE COVERED BY ANY SUCH STATEMENT, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE FINANCIAL CONDITION OR BUSINESS OF THE BORROWER OR THE PARENT. THE BORROWER IS NOW AND WILL CONTINUE TO THIS AGREEMENT) * BE SOLVENT. THE BORROWER SHALL ALSO SUPPLY TO SILICON WILL PROVIDE SILICON: (i) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q 10Q REGARDING THE PARENT IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWERCOMMISSION, SUCH 10-Q REPORT, A QUARTERLY FINANCIAL STATEMENT PREPARED BY THE BORROWER REGARDING THE PARENT, AND A COMPLIANCE CERTIFICATE IN SUCH FORM AS SILICON SHALL REASONABLY SPECIFY, SIGNED BY THE CHIEF FINANCIAL OFFICER OF THE BORROWER AND THE PARENT, CERTIFYING THAT THROUGHOUT SUCH QUARTER THE BORROWER AND THE PARENT WERE IN FULL COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SETTING FORTH CALCULATIONS SHOWING COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH ON THE SCHEDULE AND SUCH OTHER INFORMATION AS SILICON SHALL REASONABLY REQUEST (THE "COMPLIANCE CERTIFICATE"); AND (ii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K REGARDING THE PARENT IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWERCOMMISSION, SUCH 10-K REPORT, COMPLETE ANNUAL FINANCIAL STATEMENTS, CERTIFIED BY INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS ACCEPTABLE TO SILICON, AND A COMPLIANCE CERTIFICATE FOR THE QUARTER THEN ENDED."
Appears in 1 contract
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect in all material respects the financial condition of the Borrower, at the times and for the periods therein stated. Since the last date covered by any such statement, there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within 30 days after the end of each monthfiscal quarter, a monthly quarterly financial statement prepared by the Borrower, and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of throughout such month quarter the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #request; and (ii) within 120 days following the end of the Borrower's fiscal year, complete annual financial statements, certified by independent certified public SILICON VALLEY BANK AMENDMENT TO LOAN AND SECURITY AGREEMENT -------------------------------------------------------------------------------- accountants reasonably acceptable to Silicon and accompanied by together with a letter and/or report to management of the unqualified report thereon by said independent Borrower from such certified public accountants. accountant.* # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY * UPON THE IPO CONSUMMATION, THE BORROWER PROVIDE TO SILICON REGARDING THE LIQUIDITY FOLLOWING FINANCIAL COVENANT REPORTS TO REPLACE THE REPORTING REQUIREMENTS SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON ABOVE: (iI) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED RILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-Q REPORT, A QUARTERLY FINANCIAL STATEMENT PREPARED BY BORROWER, AND A COMPLIANCE CERTIFICATE IN SUCH FORM AS SILICON SHALL REASONABLY SPECIFY, SIGNED BY THE CHIEF FINANCIAL OFFICER OF THE BORROWER, CERTIFYING THAT THROUGHOUT SUCH QUARTER THE BORROWER WAS IN FULL COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SETTING FORTH CALCULATIONS SHOWING COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH ON THE SCHEDULE AND SUCH OTHER INFORMATION AS SILICON SHALL REASONABLY REQUEST (THE "COMPLIANCE CERTIFICATE"); AND (iiIII) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED RILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORT, COMPLETE ANNUAL FINANCIAL STATEMENTS, CERTIFIED BY INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS ACCEPTABLE TO SILICON, AND A COMPLIANCE CERTIFICATE FOR THE QUARTER THEN ENDED."
4. REVISED TIME PERIOD FOR COMPLETION OF ACCOUNTS RECEIVABLE AUDIT. Section 4.5 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
Appears in 1 contract
Samples: Loan and Security Agreement (Kofax Image Products Inc)
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein stated. Since the last date covered by any such statement, there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) at all times that any Obligations remain outstanding, within 30 days after the end of each month, a monthly financial statement prepared by the Borrower, and a monthly Compliance Certificate; the Compliance Certificate shall be in 2 such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of throughout such month month, the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #request; (ii) at all other times, within 30 days after the end of each fiscal quarter, a quarterly financial statement prepared by the Borrower, and a quarterly Compliance Certificate; the Compliance Certificate shall be in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that throughout such fiscal quarter, the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request; (iii) copies of the Borrower's Reports to the Securities Exchange Commission on Forms 10-Q and 10-K within five days after the earlier of the date they are filed or are required to be filed with the Securities Exchange Commission; and (iiiv) within 120 90 days following the end of the Borrower's fiscal year, complete annual financial statements, certified by independent certified public accountants acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (i) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-Q REPORT; AND (ii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORT."
Appears in 1 contract
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein statedstated subject to normal year-end adjustments. Since the last date covered by any such statement, there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within Within 30 days after the end of each calendar month in which, as of the end of such month, Borrower's Remaining Months Liquidity (as defined in the Schedule hereto) is equal to or less than 12 months, a monthly financial statement prepared by the Borrower, Borrower and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of throughout such month the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #(a "Compliance Certificate"); and (ii) within 120 Within 5 days following after the end earlier of the date the report 10-Q is filed or is required to be filed with the Securities and Exchange Commission ("SEC") with respect to Borrower's fiscal year, such 10-Q report, a quarterly financial statement prepared by Borrower, and a Compliance Certificate for Such quarter; (iii) within 5 days after the earlier of the date the report 10-K is filed or is required to be filed with the Securities and Exchange Commission with respect to Borrower, such 10-K report, complete annual financial statements, certified by Deloitte & Touche or other independent certified public accountants acceptable to Silicon, and a Compliance Certificate for the quarter then ended; provided, however, with respect to the 10-Q and 10-K reports referred to above, if (x) Borrower applies for and obtains an extension from the SEC for the delivery of such reports to the SEC, (y) Borrower provides Silicon with evidence of the SEC's grant of such extension, and accompanied (z) such extension is not 30 days beyond the regular submission date for such reports, then the required dates for the submission of financial information and reports set forth in this Section 3.7 shall be deemed to be modified to the date of the extension so granted by the unqualified report thereon by said independent certified public accountantsSEC*. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (i) *; AND, FINALLY, WITHIN 5 20 DAYS AFTER THE EARLIER END OF EACH CALENDAR MONTH IN WHICH, AT ANY TIME DURING SUCH MONTH THERE WERE ANY OBLIGATIONS OUTSTANDING, (a) A BORROWING BASE CERTIFICATE SIGNED BY THE DATE THE REPORT 10-Q IS FILED CHIEF EXECUTIVE OFFICER, PRESIDENT, CHIEF FINANCIAL OFFICER OR IS REQUIRED CONTROLLER OF BORROWER IN FORM AND SUBSTANCE ACCEPTABLE TO BE FILED WITH THE SECURITIES SILICON, (b) AN ACCOUNTS RECEIVABLE AGING FOR SUCH MONTH, AGED BY INVOICE DATE, (c) AN ACCOUNTS PAYABLE AGING FOR SUCH MONTH, AGED BY INVOICE DATE, AND EXCHANGE COMMISSION (d) OUTSTANDING OR HELD CHECK REGISTERS, IF ANY, WITH RESPECT TO BORROWER, SUCH 10-Q REPORT; AND (ii) WITHIN 5 DAYS AFTER THE EARLIER MONTH."
4. SECTION 4.5 OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORT."LOAN AGREEMENT. Section 4.5 of the Loan Agreement is hereby amended in its entirety to read as follows:
Appears in 1 contract
Samples: Loan Agreement (Vitalcom Inc)
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein stated. Since the last date covered by any such statement, statement there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within 30 45 days after the end of each quarter (except the fourth fiscal quarter), a quarterly financial statement (consisting of company-prepared 10Q reports), including consolidated financial statement details as determined by Silicon to support calculations of the financial covenants contained in the Schedule as prepared by the Borrower and certified as correct to the best knowledge and belief by the Borrower's chief financial officer or other officer or person acceptable to Silicon; (ii) within 20 days after the end of each month, an accounts receivable report and an accounts payable report in such form as Silicon shall reasonably specify; (iii) within 20 days after the end of each month, a monthly financial statement prepared Borrowing Base Certificate in the form attached to this Agreement as Exhibit A, as Silicon may reasonably modify such Certificate from time to time, signed by the Chief Financial Officer of the Borrower; (iv) within 45 days after the end of the first three calendar quarters of each year and within 90 days after the end of the last calendar quarter of each year, and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of throughout such month quarter the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule hereto and such other information as Silicon shall reasonably request #request; and (iiv) within 120 90 days following the end of the Borrower's fiscal year, complete annual CPA audited financial statements, certified such audit being conducted by independent certified public accountants reasonably acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (i) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-Q REPORT; AND (ii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORTSilicon."
Appears in 1 contract
Financial Condition and Statements. All The financial statements now or in identified on the future Disclosure Schedule and delivered to Silicon the Bank have been, and the financial statements that hereafter will be delivered to the Bank pursuant to the terms of this Agreement will be, prepared in conformity with generally accepted accounting principles applied on a basis consistent with that of preceding periods (with the exceptions described in the proviso at the end of this sentence), showing the financial condition of the Borrower and its subsidiaries at the close of such period and the results of operations during such period, and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein stated; provided, however, that financial statements for interim periods shall not include footnotes and shall be subject to year end adjustments, none of which will be material. Since the last date covered by any such statement, there has been no material adverse change in the condition (financial condition or otherwise), properties or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide SiliconBank: (i) within 30 10 days after the end of each month, a monthly receivables aging report, containing such information respecting the Borrower's receivables as the Bank may require; (ii) within 20 days after the end of each quarter, a quarterly financial statement in such form as the Bank may from time to time reasonably request, prepared by the Borrower, and a Compliance Certificate in such form as Silicon the Bank shall reasonably specify, signed by the Chief Financial Officer President or a Vice President of the Borrower, certifying that as of the end of throughout such month quarter the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon the Bank shall reasonably request #request; and (iiiii) within 120 90 days following the end of the Borrower's fiscal year, complete an original signed counterpart of the Borrower's annual financial statements, certified by independent certified public accountants acceptable to Silicon which statements shall have been prepared by, and accompanied by bear the unqualified report thereon by said opinion of, the Borrower's independent certified public accountants. * # , such statements to include, at a minimum (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENTwith comparative information for the then prior fiscal year) * BORROWER SHALL ALSO SUPPLY TO SILICON a balance sheet, income statement, statement of changes in net worth, and cash flows, (iiv) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWERforthwith upon any executive officer of the Borrower obtaining knowledge of any condition or event which constitutes an Event of Default (as defined below) or which, SUCH 10-Q REPORTafter notice or expiration of any grace period or both, would constitute an Event of Default, a certificate signed by such officer specifying in reasonable detail the nature and period of existence thereof and what action the Borrower has taken or proposes to take with respect thereto; AND and (iivi) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORTsuch other written reports as may be specified on the Disclosure Schedule or as the Bank shall from time to time reasonably specify."
Appears in 1 contract
Samples: Loan and Security Agreement (Student Advantage Inc)
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein statedstated *. Since the last date covered by any such statement, there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within 30 days after the end of each month, a monthly financial statement prepared by the Borrower, and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of such month the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #request; ** [and (ii) within 120 days following the end of the Borrower's fiscal year, complete annual financial statements, certified by independent certified public accountants acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. Silicon.] * # EXCEPT THAT ANY UNAUDITED QUARTERLY FINANCIAL STATEMENTS ARE SUBJECT TO YEAR END ADJUSTMENTS ** (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (iii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO COMMISSION, SUCH 10- Q REPORT, A QUARTERLY FINANCIAL STATEMENT PREPARED BY THE BORROWER, AND A COMPLIANCE CERTIFICATE, SIGNED BY THE CHIEF FINANCIAL OFFICER OF THE BORROWER, CERTIFYING THAT THROUGHOUT SUCH 10-Q REPORTQUARTER THE BORROWER WAS IN FULL COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SETTING FORTH CALCULATIONS SHOWING COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH ON THE SCHEDULE AND SUCH OTHER INFORMATION AS SILICON SHALL REASONABLY REQUEST; AND (iiiii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWERCOMMISSION, SUCH 10-K REPORT, COMPLETE ANNUAL FINANCIAL STATEMENTS, CERTIFIED BY INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS FROM THE BIG SIX ACCOUNTING FIRMS OR SUCH OTHER INDEPENDENT PUBLIC ACCOUNTANTS ACCEPTABLE TO SILICON, AND A COMPLIANCE CERTIFICATE FOR THE QUARTER THEN ENDED, SIGNED BY THE CHIEF FINANCIAL OFFICER OF THE BORROWER, CERTIFYING THAT THROUGHOUT SUCH QUARTER THE BORROWER WAS IN FULL COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SETTING FORTH CALCULATIONS SHOWING COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH ON THE SCHEDULE AND SUCH OTHER INFORMATION AS SILICON SHALL REASONABLY REQUEST."
Appears in 1 contract
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have beenALL FINANCIAL STATEMENTS NOW OR IN THE FUTURE DELIVERED TO SILICON HAVE BEEN, and will beAND WILL BE, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the BorrowerPREPARED IN CONFORMITY WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND NOW AND IN THE FUTURE WILL COMPLETELY AND ACCURATELY REFLECT THE FINANCIAL CONDITION OF THE BORROWER AND EMULEX CORPORATION, at the times and for the periods therein statedA DELAWARE CORPORATION (THE "PARENT"), AT THE TIMES AND FOR THE PERIODS THEREIN STATED. Since the last date covered by any such statementSINCE THE LAST DATE COVERED BY ANY SUCH STATEMENT, there has been no material adverse change in the financial condition or business of the BorrowerTHERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE FINANCIAL CONDITION OR BUSINESS OF THE BORROWER OR THE PARENT. The Borrower is now and will continue to be solventTHE BORROWER IS NOW AND WILL CONTINUE TO BE SOLVENT. The Borrower will provide SiliconTHE BORROWER WILL PROVIDE SILICON: (i) within 30 days after the end of each month, a monthly financial statement prepared by the Borrower, and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of such month the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #; and (ii) within 120 days following the end of the Borrower's fiscal year, complete annual financial statements, certified by independent certified public accountants acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (iI) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q 10Q REGARDING THE PARENT IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWERCOMMISSION, SUCH 10-Q REPORT, A QUARTERLY FINANCIAL STATEMENT PREPARED BY THE BORROWER REGARDING THE PARENT, AND A COMPLIANCE CERTIFICATE IN SUCH FORM AS SILICON SHALL REASONABLY SPECIFY, SIGNED BY THE CHIEF FINANCIAL OFFICER OF THE BORROWER AND THE PARENT, CERTIFYING THAT THROUGHOUT SUCH QUARTER THE BORROWER AND THE PARENT WERE IN FULL COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SETTING FORTH CALCULATIONS SHOWING COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH ON THE SCHEDULE AND SUCH OTHER INFORMATION AS SILICON SHALL REASONABLY REQUEST (THE "COMPLIANCE CERTIFICATE"); AND (iiII) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K REGARDING THE PARENT IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWERCOMMISSION, SUCH 10-K REPORT, COMPLETE ANNUAL FINANCIAL STATEMENTS, CERTIFIED BY INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS ACCEPTABLE TO SILICON, AND A COMPLIANCE CERTIFICATE FOR THE QUARTER THEN ENDED."
Appears in 1 contract
Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein stated. Since the last date covered by any such statement, statement there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within 30 45 days after the end of each quarter (except the fourth fiscal quarter), a quarterly financial statement (consisting of company-prepared 10Q reports), including consolidated financial statement details as determined by Silicon to support calculations of the financial covenants contained in the Schedule as prepared by the Borrower and certified as correct to the best knowledge and belief by the Borrower's chief financial officer or other officer or person acceptable to Silicon; (ii) within 20 days after the end of each month, an accounts receivable report and an accounts payable report in such form as Silicon shall reasonably specify; (iii) within 20 days after the end of each month, a monthly financial statement prepared Borrowing Base Certificate in the form attached to this Agreement as Exhibit A, as Silicon may reasonably modify such Certificate from time to time, signed by the Chief Financial Officer of the Borrower; (iv) within 45 days after the end of the first three calendar quarters of each year and within 90 days after the end of the last calendar quarter of each year, and a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of throughout such month quarter the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule hereto and such other information as Silicon shall reasonably request #request; and (iiv) within 120 95 days following the end of the Borrower's fiscal year, complete annual CPA audited financial statements, certified such audit being conducted by independent certified public accountants reasonably acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (i) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-Q REPORT; AND (ii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORTSilicon."
(c) Section 4.5 of the Loan Agreement is deleted in its entirety and replaced with the following:
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Financial Condition and Statements. All financial statements now or in the future delivered to Silicon have been, and will be, prepared in conformity with generally accepted accounting principles and now and in the future will completely and accurately reflect the financial condition of the Borrower, at the times and for the periods therein stated. Since the last date covered by any such statement, there has been no material adverse change in the financial condition or business of the Borrower. The Borrower is now and will continue to be solvent. The Borrower will provide Silicon: (i) within 30 10 SILICON VALLEY BANK AMENDED SCHEDULE TO LOAN AND SECURITY AGREEMENT -------------------------------------------------------------------------------- days after the end earlier of each monththe date the report 10-Q is filed or is required to be filed with the Securities and Exchange Commission, such 10-Q report, a monthly quarterly financial statement prepared by the Borrower, and and, for each quarter in which any Loans have been outstanding, a Compliance Certificate in such form as Silicon shall reasonably specify, signed by the Chief Financial Officer of the Borrower, certifying that as of the end of throughout such month period the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request #request; and (ii) within 120 10 days after the earlier of the date the report 10-K is filed or is required to be filed with the Securities and Exchange Commission, such 10-K report, and, if any Loans have been outstanding during the quarter period then ending, a Compliance Certificate for such period, signed by the Chief Financial Officer of the Borrower, certifying that throughout such period the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth on the Schedule and such other information as Silicon shall reasonably request; and (iii) within 90 days following the end of the Borrower's fiscal year, complete annual financial statements, certified by independent certified public accountants acceptable to Silicon and accompanied by the unqualified report thereon by said independent certified public accountants. * # (AND SUCH INFORMATION SHALL INCLUDE WITHOUT LIMITATION BANK AND BROKERAGE STATEMENTS OR OTHER EVIDENCE SATISFACTORY TO SILICON REGARDING THE LIQUIDITY FINANCIAL COVENANT SET FORTH IN THE SCHEDULE TO THIS AGREEMENT) * BORROWER SHALL ALSO SUPPLY TO SILICON (i) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-Q IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-Q REPORT; AND (ii) WITHIN 5 DAYS AFTER THE EARLIER OF THE DATE THE REPORT 10-K IS FILED OR IS REQUIRED TO BE FILED WITH THE SECURITIES EXCHANGE COMMISSION WITH RESPECT TO BORROWER, SUCH 10-K REPORTSilicon."
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