Financial Information and Compliance Certificates. (a) Debtor shall keep its books of account in accordance with generally accepted accounting principles consistently applied ("GAAP"); (b) Debtor shall deliver to the Agent annually, as soon as available, but in any event within 90 days after the last day of each of the Debtor's fiscal years, a balance sheet of the Debtor, as at the last day of such fiscal year, and statements of income and retained earnings and statements of cash flows, for such fiscal year, each prepared in accordance with GAAP consistently applied, and in reasonable detail and all reviewed by independent certified public accountants reasonably satisfactory to the Agent and certified in a certificate of the President or chief financial officer of the Debtor as fairly presenting the financial position and the results of operations of the Debtor for the period then ended and as having been prepared in accordance with GAAP consistently applied; (c) Debtor shall deliver to the Agent, as soon as available, but in any event within forty-five (45) days after the end of each of the Debtor's fiscal quarters in each fiscal year, a balance sheet of the Debtor, as at the last day of such quarter, and statements of income and retained earnings and statements of cash flows for such three month period, each prepared in accordance with GAAP consistently applied, in reasonable detail and certified in a certificate of the President or chief financial officer of the Debtor as fairly presenting the financial position and the results of operations of the Debtor for the period then ended and as having been prepared in accordance with GAAP consistently applied; and (d) Debtor shall deliver to the Agent at the same time as the Debtor delivers the financial statements required under the provisions of Sections 4.25(a) and (b) hereof, a certificate signed by the President and the chief financial, or accounting officer of the Debtor, to the effect that no Event of Default has occurred together with calculations demonstrating compliance with Section 4.23 of this Agreement as of the date of the balance sheet included within said financial statements. Debtor shall also deliver to the Agent, within 15 days after the end of each month, reasonable calculations demonstrating compliance with Section 4.23 of this Agreement as of the end of the immediately preceding month. (e) After an Event of Default, at Agent's request, all of the foregoing financial statements (as required by Agent) shall be audited and be accompanied by an unqualified opinion of a firm or certified public accountants satisfactory to Agent. (f) Within 15 days after expiration of the immediately preceding month, Debtor shall deliver to Agent a calculation of the previous month's Gross Profits (as defined in the Asset Purchase Agreement) and Net Sales (as defined in the Asset Purchase Agreement) covering each of the 12 months after the date hereof together with copies of all background information supporting said calculations. (g) Debtor shall also deliver Agent promptly after any request such other financial information as shall be requested by Agent.
Appears in 1 contract
Financial Information and Compliance Certificates. Mortgagor hereby agrees that, so long as the Loan remains outstanding and unpaid, or any other amount is owing to the Mortgagee hereunder, the Mortgagor will, and will cause any Subsidiaries, the Guarantor and any Subsidiary of the Guarantor (aeach sometimes referred to herein as a "Specified Person") Debtor shall keep its books of account in accordance with generally accepted accounting principles consistently applied ("GAAP");as applicable to:
(bi) Debtor shall deliver to the Agent annually, as soon as available, but in any event within 90 ninety (90) days after the last day of each of the Debtor's its fiscal yearsyear ends, a balance sheet its 10-K report of the Debtor, Mortgagor and its subsidiaries as at the last day of such the fiscal year, year and statements of income and retained earnings and statements of cash flows, flows for such fiscal year, year each prepared in accordance with GAAP consistently applied, generally accepted accounting principles ("GAAP") and in reasonable detail and all reviewed certified by a firm of independent certified public accountants reasonably satisfactory to the Agent Mortgagee, together with management prepared consolidated and certified in a certificate consolidating balance sheets. Mortgagor shall provide an itemized statement of the President or chief financial officer of the Debtor as fairly presenting the financial position capitalized expenses, including, but not limited to, slotting fees, marketing service agreements and the results retail licensing agreement, which shall be broken out on the management balance sheet, and any expenses related thereto shall be itemized on the management income statement. Mortgagor shall also provide a breakdown of operations of the Debtor for the period then ended selling, general and as having been prepared in accordance with GAAP consistently applied;administrative expenses.
(cii) Debtor shall deliver to the Agent, as soon as available, but in any event within forty-five sixty (4560) days after the end close of each of the Debtor's fiscal first three (3) quarters in of each fiscal year, a its 10-Q report and management prepared consolidated and consolidating balance sheet of the Debtorsheets, as at the last day of such quarter, and statements of income and retained earnings and statements of cash flows of the Mortgagor and its subsidiaries as of the last day of and for such three month periodquarter and for the period of the fiscal year ended as of the close of the particular quarter, each prepared in accordance with GAAP consistently applied, all such quarterly statements to be in reasonable detail detail, and certified in a certificate of by the President or chief financial or accounting officer of the Debtor as fairly presenting the financial position and the results of operations of the Debtor for the period then ended and Mortgagor as having been prepared in accordance with GAAP consistently applied; and(subject to year-end adjustments). Mortgagor shall provide an itemized statement of capitalized expenses, including, but not limited to, slotting fees, marketing service agreements and the retail licensing agreement, which shall be broken out on the prepared balance sheet, and any expenses related thereto shall be itemized on the prepared income statement. Mortgagor shall also provide a breakdown of selling, general and administrative expenses.
(diii) Debtor shall deliver to the Agent at the same time as the Debtor delivers the financial statements required under the provisions of Sections 4.25(asoon as available, but in any event within thirty (30) and (b) hereof, a certificate signed by the President and the chief financial, or accounting officer of the Debtor, to the effect that no Event of Default has occurred together with calculations demonstrating compliance with Section 4.23 of this Agreement as of the date of the balance sheet included within said financial statements. Debtor shall also deliver to the Agent, within 15 days after the end of each month, internally prepared profit and loss statements for each such month in reasonable calculations demonstrating compliance with Section 4.23 of this Agreement as detail and certified by the chief financial or accounting officer of the Mortgagor as having been prepared in accordance with GAAP (subject to year-end adjustments). For the fiscal year-end and each quarter-end of the immediately preceding monthMortgagor, such internally prepared statements the shall not be required.
(eiv) After an Event of Defaultat the same time as it delivers the financial statements called for by subparagraphs (i) and (ii), at Agent's request, all the Mortgagor shall deliver a certificate of the foregoing chief financial or accounting officer of the Mortgagor evidencing a computation of compliance with the financial covenants referred to in Section 23;
(v) from time to time as requested by the Mortgagee, but no more often than twice a year, provide the Mortgagee with a written acknowledgment, in form and substance satisfactory to the Mortgagee, from the Mortgagor's and the Guarantor's accountant acknowledging that the Mortgagee is relying on the accountant's professional accounting services to the Mortgagor and Guarantor, and the Mortgagor's and Guarantor's knowledge of the Mortgagee's reliance;
(vi) within ninety (90) days of the fiscal year end of the Mortgagor, furnish annual projections for the next succeeding Fiscal Year in a form reasonably acceptable to the Mortgagee;
(vii) furnish such other reports and information as the Mortgagee may reasonably require; and
(viii) Prior to the acquisition of the whey facility, the Mortgagor's quarterly financial statements (as required for the period ending March 31, 1996, prepared on a review basis by Agent) shall be audited and be accompanied by an unqualified opinion of a firm or certified public accountants satisfactory to AgentBDO Xxxxxxx, showing substantial compliance with projections.
(f) Within 15 days after expiration of the immediately preceding month, Debtor shall deliver to Agent a calculation of the previous month's Gross Profits (as defined in the Asset Purchase Agreement) and Net Sales (as defined in the Asset Purchase Agreement) covering each of the 12 months after the date hereof together with copies of all background information supporting said calculations.
(g) Debtor shall also deliver Agent promptly after any request such other financial information as shall be requested by Agent.
Appears in 1 contract
Samples: Mortgage (Suprema Specialties Inc)
Financial Information and Compliance Certificates. (a) Debtor The Loan Parties shall keep its books deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Lenders, all of account the following:
(i) As soon as practicable, but in any event not later than ninety (90) days after the end of each Fiscal Year of the Loan Parties, the consolidated and consolidating balance sheets of the Loan Parties and their consolidated Subsidiaries, and the related consolidated and consolidating statements of income, shareholders' equity and cash flow for such Fiscal Year, with accompanying footnotes, all in reasonable detail and stating in comparative form the respective figures for the corresponding date and period in the prior Fiscal Year, with such consolidated statements and balance sheet to be audited and certified by Sisterson & Company LLP, RSM LLP or another nationally-recognized independent public accounting firm (the “Independent Accountant”). The report of the Independent Accountant shall be free of exceptions or qualifications not acceptable to the Administrative Agent and the Lenders (including any exception, qualification or explanation relating to the ability to continue as a going concern, limited scope of examination or independence), and a copy of such certificate or report signed by the Independent Accountant shall be delivered to the Administrative Agent and the Lenders, and shall in any event contain a written statement of the Independent Accountant substantially to the effect that (A) the Independent Accountant examined such consolidated financial statements and balance sheet in accordance with generally accepted auditing standards and accordingly made such tests of accounting principles consistently records and such other auditing procedures as the Independent Accountant considered necessary under the circumstances, (B) the Independent Accountant performed the audit in full and complete compliance with Statement on Auditing Standards No. 82, “Consideration of Fraud in a Financial Statement Audit”, and any successor standards, interpretations or amendments thereto, and their audit included such procedures that, in their opinion, were sufficient to have a reasonable assurance to detect material fraud, (C) such consolidated financial statements present fairly the consolidated financial position of the Loan Parties for the periods indicated in conformity with GAAP applied on a basis consistent with that of the preceding Fiscal Year ("GAAP"except for changes in application in which the Independent Accountant concurs);, and (D) in making the examination necessary for their audit, the Independent Accountant did not become aware of any Event of Default or Potential Default, or if they did become so aware, such certificate or report shall state the nature and period of existence thereof;
(bii) Debtor shall deliver to the Agent annually, as soon as availablepracticable, but in any no event within 90 later than thirty (30) days after the last day end of each of the Debtor's fiscal yearscalendar month, a an unaudited consolidated balance sheet of the DebtorLoan Parties and their consolidated Subsidiaries as of the end of such calendar month and the related consolidated statements of income, as at shareholders' equity and cash flows for such month and for the period from the beginning of the then current Fiscal Year and ending on the last day of such fiscal yearmonth, and statements all certified by a Responsible Officer of income and retained earnings and statements of cash flowseach Loan Party as fairly presenting in all material respects, for such fiscal year, each prepared in accordance with GAAP consistently applied(subject to ordinary, good faith year-end audit adjustments and in reasonable detail and all reviewed by independent certified public accountants reasonably satisfactory to the Agent and certified in a certificate an absence of the President or chief financial officer of the Debtor as fairly presenting footnotes), the financial position and the results of operations of the Debtor Loan Parties and their consolidated Subsidiaries;
(iii) As soon as practicable after approval by the Board of Directors of the Borrower, but in any event no later than November 1 of each calendar year, an annual budget and projections of the Borrower for the period then ended next succeeding Fiscal Year, prepared on a quarterly basis and in reasonable detail satisfactory to the Administrative Agent and the Lenders, including a cash flow budget of the Borrower for the next succeeding Fiscal Year, EBITDA Projections and pro forma calculations of the financial maintenance covenants set forth in Section 7.01;
(iv) As soon as having been practicable and in any event within ten (10) days of delivery to a Loan Party, a copy of (A) any management letter prepared by the Independent Accountant and delivered to such Loan Party in accordance connection with GAAP consistently appliedthe financial statements referred to in Section 6.02(a)(i), and (B) any letter issued by the Independent Accountant or other management consultants with respect to recommendations relating to the Loan Parties' financial or accounting systems or controls;
(cv) A duly completed Borrowing Base Certificate signed by a Responsible Officer of the Borrower (A) no later than 12:00 p.m. (prevailing time in Pittsburgh, Pennsylvania) on Monday of each week, (B) within thirty (30) days after the last day of each calendar month, and (C) upon request by the Administrative Agent at any time after a Potential Default or an Event of Default has occurred and is continuing;
(vi) as soon as practicable, but in no event later than thirty (30) days after the close of each calendar month, a detailed aged listing of the Accounts of the Borrower (specifying in each case the names, addresses, face amount and dates of invoice(s) for each Account Debtor obligated on an Account so listed and, at the Administrative Agent's reasonable discretion, copies of proof of delivery and customer statements and, upon demand, the original copy of all documents, including repayment histories and present status reports, relating to the Accounts so scheduled and such other matters and information relating to the status of the Accounts and/or the Account Debtors as the Administrative Agent shall request), accounts payable and Inventory status (together with such supporting information, including invoices relating to the Borrower's purchase of goods listed in such report, as the Administrative Agent shall request) accompanied by a Monthly Collateral Recap in the form of Exhibit D attached hereto, an Accounts Receivable Reconciliation in the form of Exhibit E attached hereto, and an inventory reconciliation report and a loan reconciliation report in form and substance satisfactory to the Administrative Agent, in each case appropriately completed as of the date thereof and signed by a Responsible Officer of the Borrower;
(vii) promptly, any supplemental disclosures as required from time to time under Section 6.15;
(viii) concurrently with the delivery of the financial statements furnished to the Administrative Agent and the Lenders pursuant to Section 6.02(a)(i) and Section 6.02(a)(ii), the Borrower shall deliver to the AgentAdministrative Agent and the Lenders a certificate (a “Compliance Certificate”) in the form of Exhibit G dated the date thereof, signed by a Responsible Officer of the Borrower;
(ix) as soon as available, but in any no event within forty-five later than one hundred twenty (45120) days after each fiscal year end, the end personal financial statements of each of the Debtor's fiscal quarters in each fiscal year, a balance sheet of the Debtor, as at the last day of such quarter, and Individual Guarantor. Such annual statements of income and retained earnings and statements of cash flows for such three month period, each shall be prepared in accordance with GAAP consistently applied, in reasonable detail and prepared by an independent certified in a certificate of public accountant selected by each such Individual Guarantor and satisfactory to the President or chief financial officer of the Debtor as fairly presenting the financial position Administrative Agent and the results Lenders in their reasonable determination;
(x) within thirty (30) days after the filing thereof, a certified copy of operations of the Debtor for the period then ended and as having been prepared in accordance with GAAP consistently appliedeach Individual Guarantor's federal income tax returns; and
(dxi) Debtor shall deliver to promptly after the Agent at request of the same time Administrative Agent, such additional information regarding the business, financial or corporate affairs of the Loan Parties, the Individual Guarantors or any Subsidiary of a Loan Party as the Debtor delivers Administrative Agent may from time to time reasonably request.
(b) Concurrently with the delivery of the financial statements information required under the provisions of Sections 4.25(aSection 6.02(a)(i) and (b) hereofiii), the Loan Parties shall furnish to the Administrative Agent and the Lenders a certificate dated the date thereof, signed by the President a Responsible Officer of each Loan Party and the chief financial, or accounting officer of the Debtor, stating that to the effect that no Event knowledge of Default has occurred together with calculations demonstrating compliance with Section 4.23 such Responsible Officer (after due and diligent inquiry), (A) the representations and warranties set forth in Article V of this Agreement are true and correct in all material respects as of the date of the balance sheet included within said delivery of such financial statements. Debtor shall also deliver to the Agentinformation, within 15 days after the end and (B) no Event of each month, reasonable calculations demonstrating compliance with Section 4.23 of this Agreement Default or Potential Default has occurred as of such date, or if any such condition existed or exists, specifying the end nature and period of its existence and the immediately preceding month.
(e) After an Event of Defaultaction the Loan Parties have taken, at Agent's request, all of the foregoing financial statements (as required by Agent) shall be audited are taking and be accompanied by an unqualified opinion of a firm or certified public accountants satisfactory propose to Agent.
(f) Within 15 days after expiration of the immediately preceding month, Debtor shall deliver to Agent a calculation of the previous month's Gross Profits (as defined in the Asset Purchase Agreement) and Net Sales (as defined in the Asset Purchase Agreement) covering each of the 12 months after the date hereof together take with copies of all background information supporting said calculations.
(g) Debtor shall also deliver Agent promptly after any request such other financial information as shall be requested by Agent.respect thereto.
Appears in 1 contract
Financial Information and Compliance Certificates. (a) Debtor shall keep its books of account in accordance with generally accepted accounting principles consistently applied ("GAAP");Furnish to the Bank:
(bi) Debtor shall deliver to the Agent annually, as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2007, the consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as at such last day of each of the Debtor's fiscal years, a balance sheet of the Debtor, as at the last day of such fiscal year, year and consolidated and consolidating statements of income and retained earnings and statements of cash flows, flows for such fiscal year all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, each and prepared in accordance with GAAP consistently applied, applied and in reasonable detail and all reviewed certified without qualification by a firm of independent certified public accountants reasonably satisfactory to the Agent and certified in a certificate Bank;
(ii) within 45 days after the end of each fiscal quarter of the President or chief financial officer Borrower, beginning with the fiscal quarter ending September 30, 2007, the consolidated and consolidating balance sheets of the Debtor Borrower and its Subsidiaries as fairly presenting the financial position at such last day of such fiscal quarter and the results consolidated and consolidating statements of operations income and retained earnings and cash flows for such fiscal quarter, all in reasonable detail and setting forth in comparative form the figures for the comparable quarter for the previous fiscal year, certified by a Responsible Officer of the Debtor Borrower, internally prepared by the Borrower and satisfactory to the Bank, all prepared in accordance with GAAP; and
(iii) within 30 days after the close of each fiscal month consolidated balance sheets, statements of income and retained earnings and cash flows of the Borrower and its Subsidiaries as of the last day of and for such month and for the period then of the fiscal year ended as of the close of the particular month, all such monthly statements to be in reasonable detail, and certified by a Responsible Officer of the Borrower as having been prepared in accordance with GAAP consistently applied;(exclusive of footnotes and subject to year-end adjustments).
(b) Within 45 days after the close of each fiscal quarter, deliver a certificate of a Responsible Officer of the Borrower evidencing a computation of compliance with the provisions of and financial covenants contained in Article 6 (each including supporting detail of each applicable calculation) and stating that in each case except as disclosed in such certificate, the person making such certificate has no knowledge of any Default or Event of Default.
(c) Debtor shall deliver to the Agent, as soon as available, but in any event within forty-five (45) Within 30 days after the end of each of the Debtor's fiscal quarters in each fiscal year, a balance sheet of the Debtor, as at the last day of such quartereach month, and statements of income and retained earnings and statements of cash flows for such three month period, each prepared in accordance with GAAP consistently applied, in reasonable detail and certified in a certificate of the President or chief financial officer of the Debtor as fairly presenting the financial position and the results of operations of the Debtor for the period then ended and as having been prepared in accordance with GAAP consistently applied; and
(d) Debtor shall deliver to the Agent at the same time as the Debtor delivers the financial statements required under the provisions of Sections 4.25(a) and (b) hereof, Bank an accounts receivable agings report accompanied by a certificate signed by the President and the chief financial, or accounting officer Borrowing Base Certificate indicating a computation of the Debtor, to the effect that no Event of Default has occurred together with calculations demonstrating compliance with Section 4.23 of this Agreement as Borrowing Base and executed by a Responsible Officer of the date of Borrower, covering the balance sheet included within said financial statements. Debtor shall also deliver to period ending the Agent, within 15 days after the end of each month, reasonable calculations demonstrating compliance with Section 4.23 of this Agreement as of the end last day of the immediately preceding month.
(d) Within 90 days following the Effective Date, deliver to the Bank an appraisal performed by an independent third party and any supporting documentation for the calculation of goodwill associated with the VCA Acquisition.
(e) After an Event Promptly after the same are sent, copies of Default, at Agent's request, all of the foregoing financial statements (as required by Agent) shall be audited and be accompanied by an unqualified opinion reports which the Borrower sends to its stockholders, and promptly after the same are filed, copies of a firm all financial statements and reports which the Borrower may make to, or certified public accountants satisfactory to Agentfile with, any Governmental Authority, agency, commission, board or bureau.
(f) Within 15 days after expiration Keep its books of the immediately preceding month, Debtor shall deliver to Agent a calculation of the previous month's Gross Profits (as defined account in the Asset Purchase Agreement) and Net Sales (as defined in the Asset Purchase Agreement) covering each of the 12 months after the date hereof together accordance with copies of all background information supporting said calculationsgood accounting practices.
(g) Debtor shall also deliver Agent promptly after The Borrower will at all times and from time to time permit the Bank by or through any request of its officers, agents, employees, attorneys or accountants to inspect and make extracts from such Borrower's books and records at each Network Site (subject to applicable laws and regulations relating to patient confidentiality).
(h) Promptly upon the Bank's request, furnish to the Bank such other financial information data, books, records, statements, list of property and accounts, budgets, information, forecasts or reports as shall be requested by Agentto the Borrower and as to each Subsidiary or any of its properties as the Bank may request from time to time.
Appears in 1 contract
Financial Information and Compliance Certificates. (a) Debtor The Borrowers shall keep deliver to the Lender, in form and detail satisfactory to the Lender, all of the following:
(i) As soon as available and in any event within one hundred twenty (120) days after the end of each Fiscal Year of SWS, the consolidated balance sheets of SWS and its books Subsidiaries, and the related consolidated statements of account income, equity and cash flow for such Fiscal Year, with accompanying footnotes, in reasonable detail and stating in comparative form the respective figures for the corresponding date and period in the prior Fiscal Year, and certified by Sxxxxxxxx Dxxxx & Co., Inc. or such other independent certified public accounting firm acceptable to the Lender (the “Independent Accountants”). The report of the Independent Accountants shall be free of exceptions or qualifications not acceptable to the Lender (including any exception, qualification or explanation relating to the ability to continue as a going concern or independence), and a copy of such certificate or report signed by the Independent Accountants shall be delivered to the Lender, and shall in any event contain a written statement of the Independent Accountants substantially to the effect that (A) the Independent Accountants examined such financial statements and balance sheets in accordance with generally accepted auditing standards and accordingly made such tests of accounting principles consistently records and such other auditing procedures as the Independent Accountants considered necessary under the circumstances, (B) the Independent Accountant performed the audit in full and complete compliance with Statement on Auditing Standards No. 82, “Consideration of Fraud in a Financial Statement Audit”, and any successor standards, interpretations or amendments thereto, and their audit included such procedures that, in their opinion, were sufficient to have a reasonable assurance to detect material fraud, (C) such financial statements present fairly the consolidated financial position of SWS and its Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with that of the preceding Fiscal Year ("GAAP"except for changes in application in which the Independent Accountants concur), and (D) in making the examination necessary for their audit, the Independent Accountants did not become aware of any Event of Default or Potential Default, or if they did become so aware, such certificate or report shall state the nature and period of existence thereof. To the extent that SWS’s annual report on Form 10-K filed with the Securities and Exchange Commission contains any of the foregoing items, the Lender will accept SWS’s annual report on Form 10-K in lieu of such items;
(bii) Debtor shall deliver to the Agent annually, as As soon as available, but available and in any event within 90 forty five (45) days after the last day close of each of the Debtor's fiscal yearsfirst three Fiscal Quarters in each Fiscal Year of SWS, a consolidated balance sheet of SWS and its Subsidiaries as of the Debtor, as at the last day end of such fiscal year, Fiscal Quarter and the related consolidated statements of income and retained earnings changes in financial position of SWS and statements of cash flows, its Subsidiaries for such fiscal year, each prepared in accordance with GAAP consistently applied, and in reasonable detail and all reviewed by independent certified public accountants reasonably satisfactory to the Agent and certified in a certificate period commencing at the end of the President or chief financial officer previous Fiscal Year and ending with the end of the Debtor as such Fiscal Quarter, fairly presenting the financial position condition of SWS and its Subsidiaries as at such date and the results of operations of SWS and its Subsidiaries for such period and setting forth in each case in comparative form the Debtor corresponding figures for the corresponding period then ended of the preceding Fiscal Year, all in reasonable detail and duly certified (subject to year-end audit adjustments) by a Responsible Officer of SWS as having been prepared on a basis consistent with the most recent annual financial statements delivered pursuant to Section 6.02(a) (i) except as disclosed therein. To the extent that SWS’s quarterly report on Form 10-Q filed with the Securities and Exchange Commission contains any of the foregoing items, the Lender will accept SWS’s quarterly report on Form 10-Q in accordance with GAAP consistently appliedlieu of such items;
(ciii) Debtor shall deliver to the Agent, as As soon as available, but practicable and in any event within fortyten (10) days of delivery to a Borrower, a copy of (A) any management letter prepared by the Independent Accountant and delivered to a Borrower in connection with the financial statements referred to in Section 6.02(a)(i), and (B) any letter issued by the Independent Accountants or other management consultants with respect to recommendations relating to the Borrowers’ financial or accounting systems or controls;
(iv) No later than twenty-five (25) days after the end of each calendar month, and upon request by the Lender at any time after a Potential Default or an Event of Default has occurred and is continuing, a duly completed Borrowing Base Certificate signed by a Responsible Officer of the Borrowers together with such supporting information related thereto as the Lender shall reasonably request;
(v) Not later than forty five (45) days after the end of each Fiscal Quarter, a compliance certificate (a “Compliance Certificate”) dated the date thereof, signed by a Responsible Officer of the Debtor's fiscal quarters in each fiscal yearBorrowers, a balance sheet of the Debtor, as at the last day of such quarter, and statements of income and retained earnings and statements of cash flows for such three month period, each prepared in accordance with GAAP consistently applied, demonstrating in reasonable detail and certified in a certificate of compliance for the President or chief financial officer of the Debtor as fairly presenting applicable period with the financial position maintenance covenants set forth in Section 7.01;
(vi) promptly upon their becoming available, copies of: (A) all 10-K, 10-Q and 8-K reports filed by a Borrower with the results Securities and Exchange Commission and other financial statements, reports, notices and proxy statements made publicly available by any Borrower to its security holders; (B) all regular and periodic reports and all registration statements and prospectuses, if any, filed by any Borrower with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory authority; and (C) all press releases and other statements made available by any Borrower to the public concerning material changes or developments in the business of operations of the Debtor for the period then ended and any such Person;
(vii) Promptly, any supplemental disclosures as having been prepared in accordance with GAAP consistently appliedrequired from time to time under Section 6.15; and
(dviii) Debtor shall deliver to Promptly after the Agent at request of the same time Lender, such additional information regarding the business, financial, corporate or partnership affairs of the Borrowers or any Subsidiary as the Debtor delivers Lender may from time to time reasonably request.
(b) Concurrently with the delivery of the financial statements information required under the provisions of Sections 4.25(aSection 6.02(a)(i) and (b) hereofii), the Borrowers shall furnish to the Lender a certificate dated the date thereof, signed by the President and the chief financial, or accounting officer a Responsible Officer of the Debtor, Borrowers and stating that to the effect that no Event knowledge of Default has occurred together with calculations demonstrating compliance with Section 4.23 such Responsible Officer (after due and diligent inquiry), (i) the representations and warranties set forth in Article V of this Agreement are true and correct in all material respects as of the date of the balance sheet included within said delivery of such financial statements. Debtor shall also deliver information, except to the Agentextent such representations and warranties expressly refer to an earlier date, within 15 days after the end of each month, reasonable calculations demonstrating compliance with Section 4.23 of this Agreement in which case they shall be true and correct in all material respect as of the end of the immediately preceding month.
such earlier date and (eii) After an no Event of DefaultDefault or Potential Default has occurred and is continuing as of such date, at Agent's requestor if any such Event of Default or Potential Default exists, all specifying the nature and period of its existence and the foregoing financial statements (as required by Agent) shall be audited action the Borrowers have taken, are taking and be accompanied by an unqualified opinion of a firm or certified public accountants satisfactory propose to Agenttake with respect thereto.
(f) Within 15 days after expiration of the immediately preceding month, Debtor shall deliver to Agent a calculation of the previous month's Gross Profits (as defined in the Asset Purchase Agreement) and Net Sales (as defined in the Asset Purchase Agreement) covering each of the 12 months after the date hereof together with copies of all background information supporting said calculations.
(g) Debtor shall also deliver Agent promptly after any request such other financial information as shall be requested by Agent.
Appears in 1 contract
Financial Information and Compliance Certificates. (a) Debtor shall keep its books of account in accordance with generally accepted accounting principles consistently applied ("GAAP");
(b) Debtor The Borrower or Superior, as indicated, shall deliver to the Agent annuallyLender, as in form and detail satisfactory to the Lender, all of the following:
(i) As soon as availablepracticable, but in any no event within 90 later than one hundred twenty (120) days after the last day end of each Fiscal Year of the Debtor's fiscal yearsBorrower, the Borrower shall deliver to the Lender (A) a balance sheet and related statements of income and partners' capital of the Debtor, as at Borrower for such fiscal year and the last day results of the Borrower's operations during such fiscal year, all in reasonable detail and statements stating in comparative form the respective figures for the corresponding date and period in the prior Fiscal Year, all of income and retained earnings and statements of cash flows, for such fiscal year, each which shall be prepared in accordance with GAAP consistently applied, and in reasonable detail and all reviewed by independent certified public accountants reasonably satisfactory to the Agent General Partner and certified by the General Partner to be accurate and complete and to fairly present in a certificate of the President or chief financial officer of the Debtor as fairly presenting all material respects the financial position and the results of operations of the Debtor for Borrower, and (B) copies of the period then ended Borrower's filed federal income tax return and as having been prepared in accordance with GAAP consistently appliedall schedules thereto;
(cii) Debtor shall deliver to the Agent, as As soon as availablepracticable, but in any event within not later than ninety (90) days after the end of each Fiscal Year of Superior, Superior shall deliver to the Lender a balance sheet of Superior, and the related statements of income, partners' capital and cash flow for such Fiscal Year, with accompanying footnotes, all in reasonable detail and stating in comparative form the respective figures for the corresponding date and period in the prior Fiscal Year, with such statements and balance sheet to be reviewed by an independent certified public accounting firm acceptable to the Lender (the "Independent Accountants"). The report of the Independent Accountants shall be a review report but otherwise free of exceptions or qualifications not acceptable to the Lender (including any exception, qualification or explanation relating to the ability to continue as a going concern or independence), and a copy of such certificate or report signed by the Independent Accountants shall be delivered to the Lender, and shall in any event contain a written statement of the Independent Accountants substantially to the effect that (A) the Independent Accountants has reviewed such consolidated and consolidating financial statements and balance sheet in accordance with Statements on Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants, (B) the Independent Accountants are not aware of any material modifications that should be made to such consolidated and consolidating financial statements in order for them to be in conformity with generally accepted accounting principles, and (C) in performing their review, the Independent Accountants did not become aware of any event of default under the Guaranty Agreement executed by Superior, or if they did become so aware, such certificate or report shall state the nature and period of existence thereof;
(iii) With respect to each Guarantor other than Superior, as soon as practicable, but in any event not later than September 1 following the last day of each fiscal year, the Borrower shall deliver to the Lender a balance sheet of such Guarantor, and the related statements of income, shareholders' equity or partners' capital, as the case may be, and cash flow for such fiscal year, with accompanying footnotes, all in reasonable detail and stating in comparative form the respective figures for the corresponding date and period in the prior fiscal year, with such statements and balance sheet to be reviewed by the Independent Accountants. The report of the Independent Accountants shall be a review report but otherwise free of exceptions or qualifications not acceptable to the Lender (including any exception, qualification or explanation relating to the ability to continue as a going concern or independence), and a copy of such certificate or report signed by the Independent Accountants shall be delivered to the Lender, and shall in any event contain a written statement of the Independent Accountants substantially to the effect that (A) the Independent Accountants has reviewed such consolidated and consolidating financial statements and balance sheet in accordance with Statements on Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants, (B) the Independent Accountants are not aware of any material modifications that should be made to such consolidated and consolidating financial statements in order for them to be in conformity with generally accepted accounting principles, and (C) in performing their review, the Independent Accountants did not become aware of any event of default under the Guaranty Agreement executed by such Guarantor, or if they did become so aware, such certificate or report shall state the nature and period of existence thereof;
(iv) As soon as practicable, but in no event later than forty-five (45) days after the end of each Fiscal Quarter of the Debtor's fiscal quarters in each fiscal yearBorrower, the Borrower shall deliver to the Lender a balance sheet of the Debtor, Borrower as at of the end of such Fiscal Quarter and the related statements of income and partners' capital for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year and ending on the last day of such quarterFiscal Quarter, and statements all of income and retained earnings and statements of cash flows for such three month period, each which shall be prepared in accordance with GAAP consistently applied(subject to ordinary, in reasonable detail good faith year-end audit adjustments and an absence of footnotes), by the General Partner and certified by the General Partner to be accurate and complete and to fairly present in a certificate of the President or chief financial officer of the Debtor as fairly presenting all material respects, the financial position and the results of operations of the Debtor Borrower;
(v) As soon as practicable, but in no event later than forty-five (45) days after the end of each fiscal quarter of each Guarantor, the Borrower shall deliver to the Lender a balance sheet of such Guarantor as of the end of such fiscal quarter and the related statements of income, shareholders' equity or partners' capital, as the case may be, for such fiscal quarter and for the period from the beginning of the then ended current fiscal year and ending on the last day of such fiscal quarter, all certified by a Responsible Officer of such Guarantor as having been prepared fairly presenting in all material respects, in accordance with GAAP consistently applied; and(subject to ordinary, good faith year-end audit adjustments and an absence of footnotes), the financial position and the results of operations of such Guarantor;
(dvi) Debtor Concurrently with the delivery of the financial information required under Section 6.02(iv), the Borrower shall deliver to the Agent at Lender a compliance certificate dated the same time as date thereof in form satisfactory to the Debtor delivers the financial statements required under the provisions of Sections 4.25(a) and (b) hereofLender, a certificate signed by the President and General Partner, demonstrating in reasonable detail compliance with the chief financial, or accounting officer financial maintenance covenants set forth in Section 7.01 required to be tested at the end of the Debtor, applicable accounting period and stating that to the effect that knowledge of the General Partner (after due and diligent inquiry), (A) the representations and warranties set forth in Article V of this Agreement are true and correct in all material respects as of the date of the delivery of such financial information, and (B) no Event of Default has occurred together as of such date, or if any such condition existed or exists, specifying the nature and period of its existence and the action the Borrower has taken, is taking and proposes to take with calculations demonstrating respect thereto; and
(vii) With respect to each Guarantor, concurrently with the delivery of the financial information required under Section 6.02(v), the Borrower shall deliver to the Lender a compliance with Section 4.23 certificate dated the date thereof in form satisfactory to the Lender, signed by a Responsible Officer of this such Guarantor, (A) stating that to the knowledge of such Responsible Officer (after due and diligent inquiry), the representations and warranties set forth in the Guaranty Agreement executed by such Guarantor are true and correct in all material respects as of the date of the balance sheet included within said delivery of such financial statements. Debtor shall also deliver information, no default has occurred as of such date under the Guaranty Agreement executed by such Guarantor, or if any such condition existed or exists, specifying the nature and period of its existence and the action the Borrower has taken, is taking and proposes to the Agenttake with respect thereto, within 15 days after the end of each monthand (B) with respect to Superior only, demonstrating in reasonable calculations demonstrating detail 18 compliance with the financial maintenance covenants set forth in in Section 4.23 of this Agreement as of 7.01 required to be tested at the end of the immediately preceding month.applicable accounting period; and
(eviii) After an Event of Default, at Agent's request, all promptly after the request of the foregoing financial statements (as required by Agent) shall be audited Lender, the Borrower and be accompanied by an unqualified opinion of a firm or certified public accountants satisfactory to Agent.
(f) Within 15 days after expiration of the immediately preceding month, Debtor Superior shall deliver to Agent a calculation the Lender such additional information regarding the business, financial or corporate affairs of the previous month's Gross Profits (Loan Parties as defined in the Asset Purchase Agreement) and Net Sales (as defined in the Asset Purchase Agreement) covering each of the 12 months after the date hereof together with copies of all background information supporting said calculationsLender may from time to time reasonably request.
(g) Debtor shall also deliver Agent promptly after any request such other financial information as shall be requested by Agent.
Appears in 1 contract
Financial Information and Compliance Certificates. Furnish to the Bank:
(a) Debtor shall keep its books of account in accordance with generally accepted accounting principles consistently applied ("GAAP");
(bi) Debtor shall deliver Except as specifically provided to the Agent annuallycontrary in Section 5 of the Third Amendment, as soon as available, but in any event within 90 120 days after of the last day close of each fiscal year of the Debtor's fiscal yearsCorporate Guarantor throughout the Commitment Period, a consolidated and consolidating balance sheet of the Debtorsheets, as at the last day of such fiscal year, and statements of income and retained earnings and statements of cash flows, for such fiscal year, each prepared in accordance with GAAP consistently applied, and in reasonable detail and all reviewed by independent certified public accountants reasonably satisfactory to the Agent and certified in a certificate of the President or chief financial officer of the Debtor as fairly presenting the financial position and the results of operations of the Debtor for the period then ended and as having been prepared in accordance with GAAP consistently applied;
(c) Debtor shall deliver to the Agent, as soon as available, but in any event within forty-five (45) days after the end of each of the Debtor's fiscal quarters in each fiscal year, a balance sheet of the Debtor, as at the last day of such quarter, and statements of income and retained earnings and statements of cash flows of the Corporate Guarantor as of the last day of and for such three month periodfiscal year, each such statement to be prepared in accordance with GAAP consistently appliedapplied and audited by Raich Ende Xxxxxx & Co., LLP or another firm of independent certified public accountants satisfactory to the Bank; (ii) Except as specifically provided to the contrary in reasonable detail and certified in a certificate Section 5 of the President or chief financial officer Third Amendment, within 45 days of the Debtor as fairly presenting the financial position and the results of operations close of the Debtor first three quarters of each fiscal year throughout the Commitment Period commencing with the quarter ended June 30, 2005, consolidated and consolidating balance sheets, statements of income and retained earnings and statements of cash flows of each Borrower as of the last day of such quarter and for the period portion of the fiscal year then ended and as having been elapsed, each such statement to be prepared in accordance with GAAP consistently appliedapplied and compiled by Raich Ende Xxxxxx & Co., LLP or another firm of independent certified public accountants satisfactory to the Bank; and (iii) annually, and not later than April 30 of each year throughout the Commitment Period commencing April 30, 2005 the personal financial statements on the Bank’s standard form of each Individual Guarantor and, within fifteen (15) days of the filing thereof, personal tax returns of each Individual Guarantor.
(b) At the same time as it delivers the financial statements called for by Section 5.2(a)(i) and (ii), deliver a certificate of the chief financial officer of the Corporate Guarantor evidencing a computation of compliance with the provisions of Section 6 hereof and stating that in each case except as disclosed in such certificate, the person making such certificate has no knowledge of any Default or Event of Default. Together with their delivery of annual audited financial statements, the Borrower’s certified public accountant shall also deliver such a certificate, which shall be addressed to the Corporate Guarantor and the Bank.
(c) At the time any officer of the Corporate Guarantor obtains knowledge of any Default, if such Default is then continuing, the Corporate Guarantor shall furnish to the Bank a certificate of the chief financial officer of the Borrower setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto.
(d) Debtor shall deliver to By the Agent at (i) 25th day of each month for the same time as the Debtor delivers the financial statements required under the provisions of Sections 4.25(a) months ended April, May and June 2007 and (bii) hereoffor each month thereafter, a certificate signed by the President and the chief financial, or accounting officer of the Debtor, to the effect that no Event of Default has occurred together with calculations demonstrating compliance with Section 4.23 of this Agreement as of the date of the balance sheet included within said financial statements. Debtor shall also deliver to the Agent, within 15 days after the end 20th day of each month, reasonable calculations demonstrating compliance with Section 4.23 of this Agreement as of furnish to the end of Bank a detailed accounts receivable aging report and Borrowing Base Certificate containing a Borrowing Base calculation in form and detail acceptable to the immediately preceding monthBank.
(e) After an Event The Borrower will cause the Corporate Guarantor to, with reasonable promptness, furnish such other data as may be reasonably requested by the Bank and will at all times and from time to time during business hours upon reasonable advance notice permit the Bank by or through any of Defaultits officers, at Agent's requestagents, all employees, attorneys or accountants to inspect and make extracts from such Corporate Guarantor’s books and records. Upon request of the foregoing financial statements (as required by Agent) Bank, the Borrower will cause the Corporate Guarantor to permit such access for the purpose of the conduct of field audits. The cost of any field audits shall be audited and be accompanied by an unqualified opinion for the account of a firm or certified public accountants satisfactory to Agentthe Borrower.
(f) Within 15 For each financial statement or report specified in Section 5.2(a) and 5.2 (d) hereof not received by the Bank by the required date specified in such Section (the “Delivery Date”), the Borrower shall pay the Bank a fee (the “Administrative Fee”) to compensate the Bank for its additional costs and administrative expenses associated with monitoring and insuring compliance with this subsection (f) hereof. The Administrative Fee shall be equal to the amount set forth in the table below for the corresponding date of delivery: # of days after expiration the Delivery Date Administrative Fee 30-59 $ 500.00 60-89 $ 750.00 90 and more $ 1,500.00 The Borrower shall receive a credit for any amount of any Administrative Fee paid by the Corporate Guarantor. The imposition of the immediately preceding month, Debtor Administrative Fee shall deliver to Agent not be deemed a calculation waiver by the Bank of the previous month's Gross Profits (as defined in the Asset Purchase Agreement) and Net Sales (as defined in the Asset Purchase Agreement) covering each timely receipt of the 12 months after required financial statements by the date hereof together with copies of all background information supporting said calculationsDelivery Date.”
(gL) Debtor shall also deliver Agent promptly after any request such other financial information A new Section 5.11 is added to the Agreement to read as shall be requested by Agent.follows:
Appears in 1 contract
