APPLICABLE DOCUMENTS 1.1 This Contract and the Exhibits hereto, constitute the complete and exclusive statement of understanding between the parties, which supersedes all previous Contracts, written or oral, and all other communications between the parties relating to the subject matter of this Contract. No change to this Contract shall be valid unless prepared pursuant to Part II, Section 5.0, “Changes and Amendments” and signed by both parties.
1.2 Exhibits A through A-17, B, C through C-3, D through D-4, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W through W-1 set forth below, are attached to and incorporated by reference in this Contract.
1.3 The headings, page numbers, sections, and sub-section numbers contained in this Contract are for convenience and reference only and are not intended to define the scope of any provision herein.
1.4 In the event of any conflict or inconsistency in the definition or interpretation of any word, responsibility, schedule, contents or description of any task, deliverable, product, service, or other work between this Contract, Statement of Work, and Exhibits, or among Exhibits, said conflict or inconsistency shall be resolved by giving precedence first to the Contract, Statement of Work, and Attachments according to the following priority: Exhibit A Statement of Work Exhibit A-1 Xxxxxx Family Agency Reference Links Exhibit A-2 Service Delivery Sites Exhibit A-3 Intentionally Left Blank Exhibit A-4 Intentionally Left Blank Exhibit A-5 Special Incident Reporting Guide for FFAs Exhibit A-6 FFA Monthly Utilization Report Template Exhibit A-7 Intentionally Left Blank Exhibit A-10 Discharge Summary for DCFS: Xxxxxx Family Agency Exhibit A-11 Provider Needs and Services Plan/Quarterly Report Template Information Exhibit A-12 Applicant’s Authorization for Release of Information Exhibit A-13 Xxxxxx Family Agency’s Plan of Operations and Program Statement Exhibit A-13a CDSS Approval Letter for Resource Family Approval (RFA) Implementation Plan Exhibit A-14 ISFC FFA Facility License(s) Exhibit A-15 ISFC FFA Rate Letter Exhibit A-16 Intentionally Left Blank Exhibit A-17 Adoption License or MOU Exhibit B Line Item budget Exhibit C Office of Management and Budget (OMB) Title 2 Code of Federal Regulations (CFR), Part 200 and 2 CFR 1.100, title 2, Part 1 Exhibit C-1 Auditor-Controller Xxxxxx Family Agency Contract Accounting and Administration Handbook Exhibit C-2 Auditor-Controller/Department of Children and Family Services/Probation Department Fiscal Audit Phases, Fiscal/Audits of Xxxxxx Family Agency Xxxxxx Care Services Contractors Exhibit C-3 Los Angeles County Annual Revenue and Expenditure Report including Form FCR 12 FFA Exhibit D Contractor Acknowledgment and Confidentiality Agreement Form Exhibit D-1 Contractor Employee Acknowledgment and Confidentiality Agreement Form Exhibit D-2 Contractor Non-Employee Acknowledgment and Confidentiality Agreement Form Exhibit D-3 Confidentiality of Criminal Offender Record Information (XXXX) Form Exhibit D-4 Resource Xxxxxx Parent Acknowledgment and Confidentiality Agreement Form Exhibit E Statement of Dangerous Behaviors and California Department of Social Services Child Welfare Services Manual, Section 31-405 Exhibit F IRS Notice 1015 - Notice to Employees Regarding Federal Earned Income Credit (FEIC) Exhibit G Payment Resolution Notification (COV 71) Exhibit H Overpayments Policy Exhibit I Contractor’s Certification of Compliance with Child, Spousal and Family Support Orders Exhibit J Contractor’s Certification of Compliance with all Federal and State Employment Reporting Requirements Exhibit K Contractor’s Equal Employment Opportunity (EEO) Certification Exhibit L Charitable Contributions Certification Exhibit M Defaulted Property Tax Certification Form Exhibit N DCFS Xxxxxx Family Agency Contract Investigation/Monitoring/Audit Remedies and Procedures (As Amended on February 24, 2014) Exhibit O Federal Debarment and Suspension Certification Form Exhibit P Contractor’s Compliance with Encryption Requirements Form Exhibit Q Zero Tolerance Human Trafficking Policy Certification Form Exhibit R Certification of Compliance with Background and Security Investigation Exhibit S Safely Surrendered Baby Law Fact Sheet Exhibit T County of Los Angeles Contractor Employee Jury Service Program Certification Form (Code 2.203) Exhibit U County’s Administration Exhibit V ISFC Contractor’s Administration Exhibit W Sample Report on Outside Employment Exhibit W-1 Sample Report on Conflict of Interest
Other Documents and Actions Each Debtor shall give, execute, deliver, file and/or record any financing statement, registration, notice, instrument, document, agreement, Mortgage or other papers that may be necessary or desirable (in the reasonable judgment of the Secured Party or its Representative) to create, preserve, perfect or validate the security interest granted pursuant hereto (or any security interest or mortgage contemplated or required hereunder, including with respect to Section 2(h) of this Agreement) or to enable the Secured Party or its Representative to exercise and enforce the rights of the Secured Party hereunder with respect to such pledge and security interest, provided that notices to account debtors in respect of any Accounts or Instruments shall be subject to the provisions of clause (e) below. Notwithstanding the foregoing each Debtor hereby irrevocably authorizes the Secured Party at any time and from time to time to file in any filing office in any jurisdiction any initial financing statements (and other similar filings or registrations under other applicable laws and regulations pertaining to the creation, attachment, or perfection of security interests) and amendments thereto that (a) indicate the Collateral (i) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC, or (ii) as being of an equal or lesser scope or with greater detail, and (b) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Debtor is an organization, the type of organization and any organization identification number issued to such Debtor, and (ii) in the case of a financing statement filed as a fixture filing, a sufficient description of real property to which the Collateral relates. Each Debtor agrees to furnish any such information to the Secured Party promptly upon request. Each Debtor also ratifies its authorization for the Secured Party to have filed in any jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.
Financial Statements; Borrowing Base and Other Information The Borrowers will furnish to the Administrative Agent, and in the case of documents and information required to be delivered by the UAE Borrower and the Singapore Borrower, also to the UAE Administrative Agent and the Singapore Administrative Agent, as applicable:
(a) within 90 days after the end of each fiscal year of Holdings, its audited consolidated balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing and acceptable to the Required Lenders (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;
(b) within 45 days after the end of each of the first three fiscal quarters of Holdings (in the case of the fiscal year ending December 31, 2007) and each fiscal quarter for the fiscal year ending December 31, 2008 and each fiscal year of Holdings thereafter), commencing with the fiscal quarter ended June 30, 2007 (and as to which such financial statements may be delivered not later than 60 days after the end of such quarterly period), its consolidated and consolidating balance sheet and related statements of operations, partners’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year (compared to the financial statements of Edgen/Murray L.P. and its comparable subsidiary until the 2008 fiscal year), all certified by one of the Financial Officers of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 days after the end of each fiscal month (other than for the third, sixth and ninth month of any fiscal year) (i) of the US Borrower, its consolidated balance sheet and related consolidated statements of operations and a schedule of distributions and Capital Expenditures as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of such period or periods of) the previous fiscal year and (ii) each of the UK Borrower, the UAE Borrower and the Singapore Borrower on an individual (non-consolidated) basis for each such Person, its balance sheet and related statements of operations and a schedule of distributions and Capital Expenditures, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period of (or, in the case of the balance sheet, as of the end of such period or periods of) the previous fiscal year.
(d) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit F (i) certifying, in the case of the financial statements delivered under clause (b), as presenting fairly in all material respects the financial condition and results of operations of each Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 and (iv) in the case of financial statements delivered under clause (a) only, stating whether any change in GAAP or in the application thereof has occurred since the date of the prior fiscal year’s audited financial statements and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) as soon as available, but in any event not more than 30 days prior to the end of each fiscal year of each Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of each Borrower for each month of the upcoming fiscal year (“Projections”) in form reasonably satisfactory to each Agent;
(f) as soon as available but in any event within 30 days of the end of each calendar month, and at such other times as may be requested by the Administrative Agent, as of the period then ended, a US Borrowing Base Certificate, a Canadian Borrowing Base Certificate, a UAE Borrowing Certificate, a Singapore Borrowing Base Certificate and a UK Borrowing Base Certificate, and supporting information in connection therewith, together with any additional reports with respect to the US Borrowing Base, Canadian Borrowing Base, UAE Borrowing Base Certificate, Singapore Borrowing Base Certificate or UK Borrowing Base as any Agent may reasonably request;
(g) as soon as available but in any event within 30 days of the end of each calendar month and at such other times as may be requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text or Microsoft Excel formatted file acceptable to each Agent:
(i) a detailed aging of the Borrowers’ and Eligible Subsidiary’s Accounts (A) including all invoices aged by due date (with a report of any accounts on greater than 60 day terms) and (B) reconciled to the applicable Borrowing Base Certificate delivered as of such date prepared in a manner reasonably acceptable to the Administrative Agent together with a summary specifying the name and balance due for each Account Debtor;
(ii) a schedule detailing each Borrowers’ and each Eligible Subsidiary’s Inventory, in form satisfactory to the Administrative Agent, (A) by location (showing any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by product category and by value on hand, which Inventory shall be valued at the lower of weighted-average cost or market and adjusted for Borrowing Base Reserves as the Administrative Agent has previously indicated to the Borrower Representative are deemed by the Administrative Agent to be appropriate, (B) including a report of any variances in excess of $50,000 and (C) reconciled to the applicable Borrowing Base Certificate delivered as of such date;
(iii) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts and Eligible Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrowers’ and Eligible Subsidiaries’ Accounts and Inventory between the amounts shown in the Borrowers’ and Eligible Subsidiary’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;
(h) as soon as available but in any event within 30 days of the end of each calendar month (as of the month then ended), an accounts payable forecast or aging consisting of a break down of accounts by due date in a form substantially similar to the form of accounts payable forecast provided to the Administrative Agent on or prior to the Closing Date;
(i) within 30 days of the end of each calendar month, a report listing all outstanding Swap Obligations as of the month then ended;
(j) promptly upon any Administrative Agent’s request:
(i) copies of invoices in connection with the invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory purchased by any Loan Party;
(iii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(iv) copies of each Borrower’s and each Eligible Subsidiary’s sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; and
(v) a detailed listing of all advances of proceeds of Loans requested by the Borrower Representative for each Borrower during the immediately preceding calendar month and a detailed listing of all intercompany loans made by the Borrowers during such calendar month.
(k) as soon as possible and in any event within 30 days of filing thereof, copies of all tax returns filed by any Loan Party with the U.S. Internal Revenue Service or the relevant tax authority of any foreign jurisdiction;
(l) within 30 days of each March 31 and September 30, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number and shall be certified as true and correct in all material respects by a Financial Officer of the applicable Borrower;
(m) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by any Loan Party or its Subsidiaries to its public shareholders generally, as the case may be;
(n) promptly upon the request of the Administrative Agent (or the Singapore Administrative Agent or the UAE Administrative agent with respect to Account Debtors of the Singapore Borrower and the Dubai Borrower), but not more than two times in any twelve (12) month period, a summary specifying the name, address and balance due for each Account Debtor; and
(o) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as any Agent may reasonably request. Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default or during any period in which the aggregate US Availability and Canadian Availability is less than $25,000,000 or UK Availability is less than $10,000,000, the Administrative Agent, in its sole discretion, may require the delivery of the reports, certificates and other documents required by Sections 5.01(f), (g), and (h) (with respect to the US Borrowers, UK Borrower or Canadian Borrower) more frequently than monthly, including weekly or daily, in which event, in the case of Borrowing Base Certificates, the applicable Borrowing Base would be adjusted immediately upon receipt of such certificates.
AUDITS AND INVESTIGATIONS 27.1 Each invoice paid by UNDP shall be subject to a post-payment audit by auditors, whether internal or external, of UNDP or by other authorized and qualified agents of UNDP at any time during the term of the Contract and for a period of three (3) years following the expiration or prior termination of the Contract.
27.2 UNDP may conduct investigations relating to any aspect of the Contract or the award thereof, the obligations performed under the Contract, and the operations of the Contractor generally relating to performance of the Contract at any time during the term of the Contract and for a period of three
27.3 The Contractor shall provide its full and timely cooperation with any such inspections, post- payment audits or investigations. Such cooperation shall include, but shall not be limited to, the Contractor’s obligation to make available its personnel and any relevant documentation for such purposes at reasonable times and on reasonable conditions and to grant to UNDP access to the Contractor’s premises at reasonable times and on reasonable conditions in connection with such access to the Contractor’s personnel and relevant documentation. The Contractor shall require its agents, including, but not limited to, the Contractor’s attorneys, accountants or other advisers, to reasonably cooperate with any inspections, post-payment audits or investigations carried out by UNDP hereunder.
27.4 UNDP shall be entitled to a refund from the Contractor for any amounts shown by such audits or investigations to have been paid by UNDP other than in accordance with the terms and conditions of the Contract. The Contractor also agrees that, where applicable, donors to UNDP whose funding is the source of, in whole or in part, the funding for the procurement of Goods and/or Services which are the subject of this Contract, shall have direct recourse to the Contractor for the recovery of any funds determined by UNDP to have been used in violation of or inconsistent with this Contract.
Documents and Information After the Closing Date, the Purchaser and the Company shall, and shall cause their respective Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the business of the Target Companies in existence on the Closing Date and make the same available for inspection and copying by the Purchaser Representative during normal business hours of the Company and its Subsidiaries, as applicable, upon reasonable request and upon reasonable notice. No such books, records or documents shall be destroyed after the seventh (7th) anniversary of the Closing Date by the Purchaser or its Subsidiaries (including any Target Company) without first advising the Purchaser Representative in writing and giving the Purchaser Representative a reasonable opportunity to obtain possession thereof.
Financial Statements and Other Information The Borrower shall furnish to the Administrative Agent, on behalf of each Lender:
(a) within 120 days after the end of each fiscal year of the Borrower ending after the Closing Date (or, in the case of the first fiscal year ending after the Closing Date or after the occurrence of an Accounting Change, 150 days), the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of the end of, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for, such fiscal year, and related notes and related explanations thereto, setting forth in each case in comparative form the figures for the previous fiscal year (or, in the case of the first such consolidated balance sheet and related consolidated statement of operations, changes in stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries delivered hereunder after an Accounting Change, a management-prepared comparison against a management-prepared reconciliation of the financial statements for the previous year from GAAP to IFRS), in the case of such consolidated financial statements, all reported on by independent public accountants of recognized national standing (or another accounting firm reasonably acceptable to the Administrative Agent) without qualifications as to “going concern” (other than a “going concern” or “emphasis of matter” explanatory paragraph or like statement) or the scope of the audit (other than any exception, explanatory paragraph or qualification that is with respect to, or resulting from, (i) an upcoming maturity date of any Indebtedness occurring within one year from the time such opinion is delivered, (ii) any actual or prospective breach of a financial maintenance covenant or potential inability to satisfy a financial maintenance covenant on a future date or in a future period or (iii) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary) to the effect that such consolidated financial statements present fairly in all material respects the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of the end of and for such year on a consolidated basis in accordance with GAAP consistently applied, which financial statements shall be accompanied by a management discussion and analysis of the financial performance of the Borrower and its consolidated Subsidiaries for such period;
(b) within 60 days after the end of each fiscal quarter of the Borrower ending after the Closing Date (other than the fourth fiscal quarter of any fiscal year) (or, in the case of the first three fiscal quarters ending after the Closing Date or after an Accounting Change, 90 days), the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of the end of, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for, such fiscal quarter (except in the case of cash flows) and for the then-elapsed portion of the then-current fiscal year, setting forth in each case, in comparative form, the figures for the corresponding time or period of the previous fiscal year (or, in the case of such consolidated balance sheets and related consolidated statements of operations, changes in stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries delivered hereunder in the first fiscal year following an Accounting Change, a management-prepared comparison against a management-prepared reconciliation of the financial statements for the corresponding period of the previous year from GAAP to IFRS), all certified by a Financial Officer as presenting fairly in all material respects the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of the end of or for, as applicable, such fiscal quarter (except in the case of cash flows) and the then-elapsed portion of the then-current fiscal year on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, which financial statements shall be accompanied by a management discussion and analysis of the financial performance of the Borrower and its consolidated Subsidiaries for such period; provided that, except to the extent otherwise specifically required by GAAP, such financial statements shall only be required to reflect the Borrower’s good faith estimate of any purchase accounting adjustments;
(c) for any period during which any Subsidiary is, was or becomes an Unrestricted Subsidiary, simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (a) and (b) above, reasonable supplemental financial information reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements (which may be in footnote form);
(d) not later than five Business Days after any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate of a Financial Officer (i) certifying as to whether an Event of Default has occurred and, if an Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with the relevant provisions of Section 6.10 for such Test Period (which shall, to the extent applicable, include any average relevant currency exchange rates and calculations thereof over such Test Period used to translate any Indebtedness that is denominated in a currency other than in Dollars into Dollars in accordance with Section 1.06(b)) but only to the extent the Financial Maintenance Covenant is then in effect, (iii) in the case of financial statements delivered under clause (a) above, beginning with the financial statements for the first full fiscal year of the Borrower ending after the Closing Date, setting forth reasonably detailed calculations of Excess Cash Flow for such fiscal year and (iv) in the case of financial statements delivered under clause (a) above, setting forth a reasonably detailed calculation of the Net Proceeds received during the applicable period by or on behalf of the Borrower or any Restricted Subsidiary in respect of any event described in clause (a) of the definition of “Prepayment Event” and the portion of such Net Proceeds that has been invested or is intended to be reinvested in accordance with the first proviso in Section 2.11(c);
(e) not later than 120 days after the commencement of each fiscal year of the Borrower commencing after the Closing Date (or, in the case of the budget for the first fiscal year commencing after the Closing Date, 150 days), a detailed consolidated budget for the Borrower and the Group Members for such fiscal year in a form customarily prepared by the Borrower; provided that no such budget shall be required from and after the date on which the Borrower has notified the Administrative Agent that an IPO has been consummated;
(f) promptly after becoming publicly available, copies of all material periodic and other reports, proxy statements and registration statements (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) filed by Holdings or any Group Member (or, if Holdings is a subsidiary of the IPO Entity, the IPO Entity) with the SEC or with any national securities exchange; provided that no delivery shall be required hereunder with respect to any of the foregoing to the extent that such are publicly available via XXXXX or another publicly available reporting service; and
(g) promptly upon request, such other information (i) regarding the operations, business affairs and financial condition of any Group Member as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing and (ii) reasonably requested by the Administrative Agent or any Lender through the Administrative Agent for purposes of compliance with applicable “know your customer” and Anti-Money Laundering Laws (including, for the avoidance of doubt, any information that would result in a change to the list of beneficial owners identified in parts (c) or (d) of the Beneficial Ownership Certification). Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its consolidated Subsidiaries by furnishing (A) the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or a Parent Entity) filed with the SEC or (B) the applicable financial statements of any Parent Entity; provided that to the extent such information relates to a Parent Entity of Holdings with independent assets or operations, such information is accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to such Parent Entity and its consolidated subsidiaries, on the one hand, and the information relating to Holdings and its consolidated Subsidiaries on a stand-alone basis, on the other hand, and to the extent such information is in lieu of information required to be provided under Section 5.01(a), in the case of such consolidated financial statements, such materials are accompanied by a report of independent public accounts of nationally recognized standing (or another accounting firm reasonably satisfactory to the Administrative Agent) without qualifications as to “going concern” (other than a “going concern” or “emphasis of matter” explanatory paragraph or like statement) or the scope of the audit (other than any exception, explanatory paragraph or qualification that is with respect to, or resulting from, (A) an upcoming maturity date of any Indebtedness occurring within one year from the time such opinion is delivered, (B) any actual or prospective breach of a financial maintenance covenant or potential inability to satisfy a financial maintenance covenant on a future date or in a future period or (C) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary). Documents required to be delivered pursuant to this Section 5.01 may be delivered electronically and if so delivered shall be deemed to have been delivered on the earlier of the date (I) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s or any Affiliate’s website on the Internet or (II) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering such documents is given by the Administrative Agent and (y) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and, upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (1) the Administrative Agent and/or Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (2) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will, upon the Administrative Agent’s reasonable request, identify that portion of the Company Materials that may be distributed to the Public Lenders and that (w) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat such Company Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its respective Affiliates or Subsidiaries or its or their respective securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Company Materials constitute Information, they shall be treated as set forth in Section 9.12); (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding anything to the contrary in this Article V, none of Holdings, the Borrower or any other Group Member will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter pursuant to this Article V that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Requirements of Law or any binding confidentiality agreement, (iii) is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which Holdings, the Borrower or any other Group Member owes confidentiality obligations to any third party; provided that if Holdings, the Borrower or any Group Member does not provide information that is otherwise required to be delivered pursuant to this Article V as a result of any of the foregoing exceptions, Holdings, the Borrower or such Group Member, as applicable, shall use commercially reasonable efforts to (A) notify the Administrative Agent that such information is being withheld and (B) describe the applicable information in reasonable detail, in each case with respect to the foregoing clauses (A) and (B), solely to the extent Holdings, the Borrower or such Group Member, as applicable, determines in good faith that such notification and description (x) are feasible, (y) are permitted under Requirements of Law and such binding agreements and (z) would not result in the waiver or deemed waiver of any such privilege, as applicable. For the avoidance of doubt, anything disclosed, examined inspected or otherwise made available pursuant to this Article V shall be subject to the provisions of Section 9.12 to the extent applicable.
Audits and Inspections At any time during normal business hours and as often as the City may deem necessary, Service Provider shall make available to the City for the City’s examination all of Service Provider’s records and documents with respect to all matters covered by this Agreement and, furthermore, Service Provider will permit the City to audit, examine and make copies, excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement.
Documents and Records Seller shall deliver to Servicer, and Servicer shall hold in trust for Seller and the Purchasers in accordance with their respective interests, all documents, instruments and records (including, without limitation, computer tapes or disks) that evidence or relate to Pool Receivables.
Financial Statements and Other Reports Company will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company will deliver to Administrative Agent and Lenders:
(i) Quarterly Financial: as soon as available and in any event within 45 days after the end of each Fiscal Quarter, the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of operations, changes in stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail and certified by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(ii) Year-End Financial: as soon as available and in any event within 90 days after the end of each Fiscal Year, the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of operations, changes in stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, with a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by Company and satisfactory to Administrative Agent, which report shall be un-qualified, shall express no doubts about the ability of Company and its Subsidiaries to continue as a going concern, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iii) Officer’s and Compliance Certificates: together with each delivery of the consolidated financial statements of Company and its Subsidiaries pursuant to subdivisions (i) and (ii) above, (a) an Officer’s Certificate of Company stating that the signer has reviewed the terms of this Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signer does not have knowledge of the existence as at the date of such Officer’s Certificate, of any condition or event that constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7;
Other Information and Inspections In each case subject to the last sentence of this Section 6.3, each Restricted Person will furnish to each Lender any information which Administrative Agent or any Lender may from time to time request concerning any covenant, provision or condition of the Loan Documents or any matter in connection with Restricted Persons' businesses and operations. In each case subject to the last sentence of this Section 6.3, each Restricted Person will permit representatives appointed by Administrative Agent (including independent accountants, auditors, agents, attorneys, appraisers and any other Persons) to visit and inspect during normal business hours any of such Restricted Person's property, including its books of account, other books and records, and any facilities or other business assets, and to make extra copies therefrom and photocopies and photographs thereof, and to write down and record any information such representatives obtain, and each Restricted Person shall permit Administrative Agent or its representatives to investigate and verify the accuracy of the information furnished to Administrative Agent or any Lender in connection with the Loan Documents and to discuss all such matters with its officers, employees and, upon prior notice to Borrower, its representatives. Each of the foregoing inspections shall be made subject to compliance with applicable safety standards and the same conditions applicable to any Restricted Person in respect of property of that Restricted Person on the premises of Persons other than a Restricted Person or an Affiliate of a Restricted Person, and all information, books and records furnished or requested to be furnished, or of which copies, photocopies or photographs are made or requested to be made, all information to be investigated or verified and all discussions conducted with any officer, employee or representative of any Restricted Person shall be subject to any applicable attorney-client privilege exceptions which the Restricted Person determines is reasonably necessary and compliance with conditions to disclosures under non-disclosure agreements between any Restricted Person and Persons other than a Restricted Person or an Affiliate of a Restricted Person and the express undertaking of each Person acting at the direction of or on behalf of any Lender Party to be bound by the confidentiality provisions of Section 10.6 of this Agreement.
