Equipment and Other Tangible Property The Company or one of its Subsidiaries owns and has good title to, and has the legal and beneficial ownership of or a valid leasehold interest in or right to use by license or otherwise, all material machinery, equipment and other tangible property reflected on the books of the Company and its Subsidiaries as owned by the Company or one of its Subsidiaries, free and clear of all Liens other than Permitted Liens. All material personal property and leased personal property assets of the Company and its Subsidiaries are structurally sound and in good operating condition and repair (ordinary wear and tear expected) and are suitable for their present use.
FACILITIES, EQUIPMENT AND OTHER MATERIALS Except as otherwise specifically provided in this Agreement, CONTRACTOR shall, at its sole cost and expense, furnish all facilities, equipment, and other materials which may be required for performing services pursuant to this Agreement. At COUNTY’s discretion, COUNTY may make equipment or facilities available to CONTRACTOR for CONTRACTOR’s use in furtherance of this Agreement only where a COUNTY Facility or Equipment exhibit is attached to this Agreement identifying the equipment or facilities to be used by CONTRACTOR’s personnel. If COUNTY funds equipment as part of this contract, COUNTY will retain Equipment.
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.
Submission of Reports and Other Documents Service Provider shall submit all reports and other documents as and when specified in the Scope of Work. This information shall be subject to review by the City, and if found to be unacceptable, Service Provider shall correct and deliver to the City any deficient Work at Service Provider’s expense with all practical dispatch. Service Provider shall abide by the City’s determinations concerning acceptability of Work.
Certain Requirements as to Furniture, Equipment and Fixtures If the Assuming Institution purchases owned Bank Premises or accepts an assignment of the lease (or enters into a sublease or a new lease in lieu thereof) for leased Bank Premises as provided in Section 4.6(a) or 4.6(b), or if the Assuming Institution does not exercise such option but within twelve (12) months following Bank Closing obtains the right to occupy such premises (whether by assignment, lease, sublease, purchase or otherwise), other than in accordance with Section 4.6(a) or (b), the Assuming Institution shall (i) effective as of the date of Bank Closing, purchase from the Receiver all Furniture and Equipment and Fixtures owned by the Failed Bank at Fair Market Value and located thereon as of Bank Closing, (ii) accept an assignment or a sublease of the leases or negotiate new leases for all Furniture and Equipment and Fixtures leased by the Failed Bank and located thereon, and (iii) if applicable, accept an assignment or a sublease of any ground lease or negotiate a new ground lease with respect to any land on which such Bank Premises are located; provided, that the Receiver shall not have disposed of such Furniture and Equipment and Fixtures or repudiated the leases specified in clause (ii) or (iii).
Contracts and Other Collateral The Company shall perform all of its obligations under or with respect to each instrument, receivable, contract and other intangible included in the Pledged Property to which the Company is now or hereafter will be party on a timely basis and in the manner therein required, including, without limitation, this Agreement.
Payment of Taxes and Other Potential Liens Pay and discharge promptly all taxes, assessments and governmental charges or levies imposed upon any of them, upon their respective Property or any part thereof and upon their respective income or profits or any part thereof, except that Borrower and its Subsidiaries shall not be required to pay or cause to be paid (a) any tax, assessment, charge or levy that is not yet past due, or is being contested in good faith by appropriate proceedings so long as the relevant entity has established and maintains adequate reserves for the payment of the same or (b) any immaterial tax so long as no material Property of Borrower or any Subsidiary is at impending risk of being seized, levied upon or forfeited.
Notification to Account Debtors and Other Persons Obligated on Collateral If an Event of Default shall have occurred and be continuing:
(a) the Company shall, at the request and option of the Secured Party, notify account debtors and other persons obligated on any of the Collateral of the security interest of the Secured Party in any account, chattel paper, general intangible, instrument or other Collateral and that payment thereof is to be made directly to the Secured Party or to any financial institution designated by the Secured Party as the Secured Party’s agent therefor;
(b) the Secured Party may itself, without notice to or demand upon the Company, so notify account debtors and other persons obligated on Collateral;
(c) after the making of such a request or the giving of any such notification, the Company shall hold any proceeds of collection of accounts, chattel paper, general intangibles, instruments and other Collateral received by the Company as trustee for the Secured Party, for the benefit of the Secured Party, without commingling the same with other funds of the Company and shall turn the same over to the Secured Party in the identical form received, together with any necessary endorsements or assignments; and
(d) the Secured Party shall apply the proceeds of collection of accounts, chattel paper, general intangibles, instruments and other Collateral and received by the Secured Party to the payment of the Obligations, such proceeds to be immediately credited after final payment in cash or other immediately available funds of the items giving rise to them.
Award of Construction Contract and Other Future Contracts 6.2.1 A-E is hereby informed that provisions of the Public Contract Code, the Political Reform Act of 1974, other statutes, regulations, and COUNTY policy prohibit, as an impermissible conflict of interest, the award of a contract for the construction of the project(s) on which A-E performed architectural-engineering services under this A-E CONTRACT. A-E is hereby informed that these statutes and regulations could also prohibit the award to A-E of design or other contracts on future phases related to tasks performed by A-E under this CONTRACT. This prohibition applies also to a subcontractor of or parent company of the firm that performed architectural-engineering tasks under this CONTRACT.
Financing Statements and Other Filings; Maintenance of Perfected Security Interest The UCC financing statements (including fixture filings) prepared by the Collateral Agent based upon the information provided to the Collateral Agent in the Perfection Certificate for filing (and which UCC financing statements the Pledgors have been given an opportunity to review prior to filing) in each governmental, municipal or other office specified in Schedule 6 of this Agreement (or specified by notice from the applicable Pledgor to the Collateral Agent after the Closing Date in the case of filings, recordings or registrations required by Section 6.11 of the Credit Agreement), and the filings required to be made pursuant to the last sentence of this Section 3.3 in the United States Patent and Trademark Office or United States Copyright Office in order to perfect the security interest in Pledged Collateral consisting of Patents, Trademarks and Copyrights, are all the filings, recordings and registrations necessary to establish a legal, valid and perfected security interest in favor of the Collateral Agent in respect of all Pledged Collateral in which a security interest may be perfected by such filings, recordings or registrations. Each Pledgor represents and warrants that, as of the Closing Date, an appropriate Copyright Security Agreement, Trademark Security Agreement and Patent Security Agreement, as applicable, containing a description of all Intellectual Property Collateral consisting of Patents (and Patents for which applications are pending), registered Trademarks (and Trademarks for which registration applications are pending) or registered Copyrights (and Copyrights for which registration applications are pending), as applicable, have been delivered to the Collateral Agent for recording by the United States Patent and Trademark Office or United States Copyright Office. Each Pledgor agrees that at the sole cost and expense of the Pledgors, such Pledgor will maintain the security interest created by this Agreement in the Pledged Collateral as a perfected first priority security interest subject only to Permitted Liens.
