SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers: (1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and (2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.” (b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02 (a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer. (c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Indenture (Western Digital Corp), Indenture (Western Digital Corp)
SEC Reports. (a) On The Partnership’s annual report on Form 10-K for the year ended September 30, 2004, and after the Escrow Release Datequarterly and current reports on Form 10-Q and 8-K, whether if any, filed by the partnership with the Securities and Exchange Commission (“SEC”) since September 30, 2004 (collectively, the “SEC Reports”) were timely filed with the SEC. Such documents, at the time they were filed with the SEC, complied in all material respects with the requirements of the Exchange Act and did not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not required by misleading. In addition, each of the statements made in such documents within the coverage of Rule 175(b) of the rules and regulations under the Securities Act of 1933, as amended (the “Securities Act”), was made by the Partnership with a reasonable basis and in good faith. Other than the SEC Reports, none of the SECPartnership Entities nor any of their respective subsidiaries is required to file any form, so long as any Notes are outstandingreport or other document with the SEC that has not been filed.
(b) The draft of the Partnership’s annual report of Form 10-K for the year ended September 30, the Issuer will furnish 2005, a copy of which has been delivered to the Trustee andBuyers (the “2005 Form 10-K”), upon written requestcomplies, and the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be version thereof actually filed with the SEC on Forms 10-Q shall comply, in all material respects with the requirements of the Exchange Act and does not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. In addition, each of the statements made in the 2005 Form 10-K if and the Issuer were required to file such reports; and
(2) all current reports that would be required to be version thereof actually filed with the SEC on Form 8-K if within the Issuer were required to file such reports; provided that the electronic filing coverage of Rule 175(b) of the foregoing reports rules and regulations under the Securities Act was made by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports Partnership with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, reasonable basis and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuergood faith.
(c) In additionThere are no agreements, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 contracts, indentures, leases or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information other instruments that are required to be delivered pursuant described in the SEC Reports and the 2005 Form 10-K or to Rule 144A(d)(4) under be filed as exhibits to the Securities SEC Reports and the 2005 Form 10-K that are not and, with respect to the version of the 2005 Form 10-K actually filed with the SEC will not be, described or filed as required by the Exchange Act.
(d) Delivery Since September 30, 2005, no transaction has occurred between or among the Partnership GP, the Partnership Entities and any of their respective officers, directors, stockholders or Affiliates or, to the best knowledge of the Partnership GP, any Affiliate of any reportssuch officer, information and documents director or stockholder, that is required to be described in the Trustee will be for informational purposes only SEC Reports and the Trustee’s receipt of such shall 2005 Form 10-K that is not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)so described.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Kestrel Energy Partners LLC), Unit Purchase Agreement (Star Gas Partners Lp)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (a) On and after or such shorter period as the Escrow Release Date, whether or not Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”). As of their respective dates, the SEC Reports (including the financial statements, exhibits and schedules thereto) complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SECSEC promulgated thereunder, so long as any Notes are outstanding, applicable and did not at the Issuer will furnish time they were filed (or if amended or superseded by a filing prior to the Trustee anddate of this Agreement, upon written requestthen on the date of such filing) contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to made the statements therein, in light of the Holderscircumstances they were made, within not misleading. Each of the time periods specified financial statements (including, in each case, any related notes thereto) contained in the SEC’s SEC Reports (the "Company Financials"), including any SEC Reports filed after the date hereof until the Closing, as of their respective dates, (i) complied as to form in all material respects with the published rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with of the SEC with respect thereto, (ii) was prepared in accordance with GAAP applied on Forms 10-Q and 10-K if a consistent basis throughout the Issuer were required to file such reports; and
periods involved (2) all current reports that would except as may be required to indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be filed with permitted by the SEC on Form 810-K if Q under the Issuer were required to file such reports; provided Exchange Act) and (iii) fairly presented the financial position of the Company at the respective dates thereof and the consolidated results of its operations and cash flows for the periods indicated, except that the electronic filing unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not, or are not expected to be, material in amount. The balance sheet of the foregoing reports by Company as of September 30, 2006 is hereinafter referred to as the Issuer on "Company Balance Sheet." Except as disclosed in the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoingCompany Financials, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 Company does not require the Issuer to comply with Rule 3-10 have any liabilities (absolute, accrued, contingent or Rule 3-16 otherwise) of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports a nature required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in disclosed on a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements balance sheet or in the footnotes theretorelated notes to the consolidated financial statements prepared in accordance with GAAP which are, and individually or in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant aggregate, material to this covenant of the financial condition and business, results of operations or financial condition of the Issuer and its Restricted Subsidiaries separate from Company, except liabilities (i) provided for in the financial condition and results of operations Company Balance Sheet, or (ii) incurred since the date of the Unrestricted Subsidiaries Company Balance Sheet in the ordinary course of the Issuerbusiness consistent with past practices and which would not reasonably be expected to have a Material Adverse Effect.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Janel World Trade LTD), Securities Purchase Agreement (Janel World Trade LTD)
SEC Reports. (a) On The Company has filed all required forms, reports and after documents with the Escrow Release DateSEC since December 31, whether or 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not required by be filed within the rules and regulations prescribed time period. Each of the SECSEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so long as filed. None of such forms, reports or documents, including, without limitation, any Notes are outstandingfinancial statements or schedules included or incorporated by reference therein, the Issuer will furnish contained, when filed, any untrue statement of a material fact or omitted to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be state a material fact required to be filed with stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC on Forms 10-Q and 10-K if Reports. None of the Issuer were Subsidiaries of the Company is required to file such any reports; and
(2) all current reports that would be required to be filed , statements, forms or other documents with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to The SEC Reports contain audited consolidated balance sheets of the contraryCompany and its Subsidiaries as of December 31 in each of the years 1995 through 1998, this Section 4.02 does not require and the Issuer to comply related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with Rule 3-10 or Rule 3-16 the respective reports thereon of Regulation S-X (or any successor provision), or to provide separate KPMG LLP. These audited financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided Company were included or incorporated by reference in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries SEC Reports (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountcollectively, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in including the footnotes thereto, and the "SEC Financial Statements"), were prepared in “Management’s Discussion and Analysis of accordance with GAAP (except as otherwise stated in the SEC Financial Condition and Results of Operations” Statements or elsewhere in the related reports provided by the Issuer pursuant to this covenant of the Company's independent accountants) and present fairly the consolidated financial condition position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted all Subsidiaries of the IssuerCompany.
(c) In additionNeither the Company nor any of its Subsidiaries has any material liability, at obligation or commitment of any time on and after nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) consolidated balance sheet of the Exchange ActCompany and its consolidated subsidiaries as of December 31, 1999 included in the Issuer shall furnish to Audited Financial Statements or reflected in the Holders notes thereto, (ii)(x) which arose in the ordinary course of business since such date and to prospective investors(y) which do not or would not individually or in the aggregate have a Material Adverse Effect, upon or (iii) which are of the requests of such Holders, any information type that would not be required to be delivered pursuant to Rule 144A(d)(4) under reflected on a consolidated balance sheet of the Securities ActCompany and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Delivery Except as set forth on Schedule 5.25(d), since the date of any reports, information and documents the Company's 1999 Proxy Statement to the Trustee will date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be for informational purposes only and distributed as of the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Thayer Blum Funding LLC), Securities Purchase Agreement (Eftc Corp/)
SEC Reports. (a) On Since April 29, 2015 (the “Reference Date”), the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, including any amendments or supplements thereto, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required, including any amendments or supplements thereto (all such forms, reports, schedules, statements and documents, as amended or supplemented, filed or furnished since the Reference Date, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q and 10-K if at or prior to the Issuer were required to file such reports; and
(2) all current reports Effective Time that would be are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report filed prior to the date hereof (or if amended prior to the date hereof, as of the date of the last such amendment) complied, or, in the case of SEC Reports filed after date hereof and prior to the Effective Time, will comply, as the case may be, as of its filing date, as to form with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act, the Issuer on Exchange Act, or the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system Act, as the case may be, and applicable rules and regulations promulgated thereunder, each as in effect on the filing date (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations if amended prior to the Trustee date hereof, as of the date of the last such amendment), in all material respects. True, correct and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the complete copies of all SEC will not accept such filings for any reason, the Issuer will post the reports specified Reports are publicly available in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contraryElectronic Data Gathering, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any Analysis and Retrieval database of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA SEC. As of such Unrestricted Subsidiaries its filing date (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes theretocase of a registration statement under the Securities Act, at the time it was declared effective), each SEC Report (or if amended prior to the date hereof, as of the date of the last such amendment) did not, and will not, in “Management’s Discussion the case of any SEC Report filed after the date hereof and Analysis prior to the Effective Time, contain any untrue statement of Financial Condition and Results of Operations” a material fact or elsewhere omit to state any material fact necessary in reports provided by order to make the Issuer pursuant to this covenant statements made therein, in the light of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuercircumstances under which they were made, not misleading.
(c) In additionSince the Reference Date, at neither the Company nor any time on and after of its Subsidiaries has received from the Escrow Release Date when SEC or any other Governmental Authority any written comments or questions with respect to any of the Issuer is not subject SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the reporting requirements of Section 13 or 15(d) knowledge of the Exchange ActCompany, there is not, as of the Issuer shall furnish to the Holders and to prospective investors, upon the requests date of such Holdersthis Agreement, any information required to be delivered pursuant to Rule 144A(d)(4) under investigation or review being conducted by the Securities ActSEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein), except in each case for such comments, questions, notices, investigations or reviews which have been fully resolved.
(d) Delivery None of the Company’s Subsidiaries is (or since the Reference Date has been) required to file any forms, reports, information schedules, statements or other documents with the SEC.
(e) Since the Reference Date, no executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, Table of Contents except as disclosed in certifications filed with the SEC Reports, and documents to at the Trustee will be for informational purposes only time of filing or submission of each such certification, such certification was true and accurate and complied with the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Since the Reference Date, including neither the Issuer’s compliance with Company nor any of its covenants hereunder executive officers has received notice from any Governmental Authority challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(as to which f) The Company is in compliance in all material respects with the Trustee will be entitled to rely exclusively on Officers’ Certificates)applicable listing and corporate governance rules and regulations of Nasdaq.
Appears in 2 contracts
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Act and the Securities Exchange Act of 1934, as amended (athe “Exchange Act”) On since November 14, 2007, including pursuant to Section 13(a), 13(c) or 15(d) thereof (the foregoing materials from and after November 14, 2007, including the Escrow Release Dateexhibits thereto and documents incorporated by reference therein, whether being collectively referred to herein as the “SEC Reports”) on a timely basis or not required by has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of the date of filing, in the case of SEC Reports filed pursuant to the Exchange Act (and to the extent such SEC Report was amended, then as of the date of filing of such amendment), and as of the date of effectiveness in the case of SEC Reports filed pursuant to the Act (and to the extent such SEC Report was amended, then as of the date of effectiveness of such amendment), the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act and the rules and regulations of the SECSecurities and Exchange Commission (the “Commission”) promulgated thereunder, so long as any Notes are outstandingapplicable, and none of the Issuer will furnish SEC Reports, as of the date of filing, in the case of SEC Reports filed pursuant to the Trustee andExchange Act (and to the extent such SEC Report was amended, upon written requestthen as to the date of filing of such amendment), and as of the Holders, within the time periods specified date of effectiveness in the SEC’s rules case of SEC Reports filed pursuant to the Act (and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be to the extent such SEC Report was amended, then as of the date of effectiveness of such amendment), contained any untrue statement of a material fact or omitted to state a material fact required to be filed with stated therein or necessary in order to make the SEC on Forms 10-Q and 10-K if statements therein, in the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing light of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holdercircumstances under which they were made, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filermisleading.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Securities Purchase Agreement (China Natural Gas, Inc.), Securities Purchase Agreement (China Natural Gas, Inc.)
SEC Reports. (a) On and The Company shall file with the Trustee, within 15 days after the Escrow Release DateCompany is required to file the same with the SEC, whether after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or not required copies of such portions of any of the foregoing as the SEC may from time to time by the rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then the Company shall file with the Trustee and the SEC, so long in accordance with rules and regulations prescribed from time to time by the SEC and within 15 days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b- 25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as any Notes are outstandingmay be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Issuer Company will furnish be deemed to have furnished such information, documents or reports referred to above to the Trustee andif the Company has filed such information, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual documents or reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if via the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ filing system (or any successor system) shall be deemed or, if at any time the Company is no longer subject to satisfy reporting under Section 13 or 15(d) of the Issuer’s delivery obligations to the Trustee Exchange Act and any Holder, it being understood that the Trustee shall is not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required permitted to file those such information, documents or reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to SEC, if the contraryCompany posts such information, this Section 4.02 does not require the Issuer to comply with Rule 3-10 documents or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, Company’s publicly available website and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(cii) In addition, if at any time on and after the Escrow Release Date when the Issuer Company is not no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish Company will not be deemed to have failed to comply with any of its obligations under this Section 6(a) until 30 days after the Holders and to prospective investorsdate any information, upon the requests of such Holders, any information document or report hereunder is required to be delivered pursuant to Rule 144A(d)(4) under filed with the Securities ActTrustee.
(db) Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder under the Indenture or this Supplemental Indenture (as to which the Trustee will be is entitled to rely exclusively on Officers’ Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the ▇▇▇▇▇ filing system (or its successor) or postings to any website have occurred.
Appears in 2 contracts
Sources: Supplemental Indenture (Sherwin Williams Co), Supplemental Indenture (Sherwin Williams Co)
SEC Reports. The Company has filed or furnished (aas applicable) On all forms, reports and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under applicable Law prior to the date hereof, and, after the Escrow Release Datedate of this Agreement and until the Acceptance Time, the Company will timely file or furnish (as applicable) all forms, reports and documents with the SEC that are required to be filed or furnished (as applicable) by it under applicable Law (all such forms, reports and documents, together with any other forms, reports or other documents filed or furnished (as applicable) by the Company with the SEC on or prior to the expiration date of the Offer that are not required to be so filed or furnished (the “SEC Reports”). Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form, in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (the “▇▇▇▇-▇▇▇▇▇ Act”), each as in effect on the date such SEC Report was, or will be, filed. True, correct and complete copies of all SEC Reports filed prior to the date hereof, whether or not required by under applicable Law, have been made available to Parent or are publicly available in the rules Electronic Data Gathering, Analysis and regulations Retrieval (▇▇▇▇▇) database of the SEC. As of its filing date, so long as any Notes are outstanding(or, the Issuer will furnish if revised, amended, modified or superseded by a filing prior to the Trustee anddate of this Agreement, upon written requeston the date of such amended or superseded filing), each SEC Report did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the Holdersstatements made therein, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with light of the circumstances under which they were made, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC on Forms 10-Q with respect to the SEC Reports. To the knowledge of the Company, none of the SEC Reports is the subject of ongoing SEC review and 10-K if there are no inquiries or investigations by the Issuer were SEC or any internal investigations pending or threatened, in each case regarding any accounting practices of the Company. None of the Company’s Subsidiaries is required to file such reports; and
(2) all current any forms, reports that would be required to be filed or other documents with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing SEC. No executive officer of the foregoing reports by Company has failed to make the Issuer on certifications required of him or her under Section 302 or 906 of the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or Act with respect to any successor system) shall be deemed to satisfy SEC Report. Neither the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Company nor any of its covenants hereunder (executive officers has received notice from any Governmental Authority challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. The Company qualifies as to which an “emerging growth company” as defined in the Trustee will be entitled to rely exclusively on Officers’ Certificates)Jumpstart Our Business Startups Act.
Appears in 2 contracts
Sources: Acquisition Agreement (Ca, Inc.), Acquisition Agreement (Rally Software Development Corp)
SEC Reports. (a) On and The Company shall file with the Trustee, within 15 days after the Escrow Release DateCompany is required to file the same with the SEC, whether after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or not required copies of such portions of any of the foregoing as the SEC may from time to time by the rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then the Company shall file with the Trustee and the SEC, so long in accordance with rules and regulations prescribed from time to time by the SEC and within 15 days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b- 25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as any Notes are outstandingmay be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Issuer Company will furnish be deemed to have furnished such information, documents or reports referred to above to the Trustee andif the Company has filed such information, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual documents or reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if via the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ filing system (or any successor system) shall be deemed or, if at any time the Company is no longer subject to satisfy reporting under Section 13 or 15(d) of the Issuer’s delivery obligations to the Trustee Exchange Act and any Holder, it being understood that the Trustee shall is not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required permitted to file those such information, documents or reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to SEC, if the contraryCompany posts such information, this Section 4.02 does not require the Issuer to comply with Rule 3-10 documents or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, Company’s publicly available website and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(cii) In addition, if at any time on and after the Escrow Release Date when the Issuer Company is not no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish Company will not be deemed to have failed to comply with any of its obligations under this Section 7(a) until 30 days after the Holders and to prospective investorsdate any information, upon the requests of such Holders, any information document or report hereunder is required to be delivered pursuant to Rule 144A(d)(4) under filed with the Securities ActTrustee.
(db) Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder under the Indenture or this Supplemental Indenture (as to which the Trustee will be is entitled to rely exclusively on Officers’ Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the ▇▇▇▇▇ filing system (or its successor) or postings to any website have occurred.
Appears in 2 contracts
Sources: Supplemental Indenture (Sherwin Williams Co), Supplemental Indenture (Sherwin Williams Co)
SEC Reports. The Company has filed on a timely basis with the SEC all SEC Reports. The SEC Reports constitute all of the documents required to be filed by the Company with the Commission under Section 13 or 14 of the Exchange Act since December 31, 2007. Each SEC Report other than the First Quarter Form 10-Q, as of the date of the filing thereof with the Commission (aor if amended or superseded by a filing prior to the date hereof, then on the date of such amending or superseding filing) On or as of the date hereof in the case of the First Quarter Form 10-Q, complied in all material respects with the requirements of the Securities Act or Exchange Act, as applicable, and the rules and regulations promulgated thereunder. The SEC Reports, at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such amending or superseding filing) and as of the date hereof, did not and do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates (or if amended or superseded by a filing prior to the date hereof, then on the date of such amending or superseding filing), the financial statements of the Company included in the SEC Reports (including, in each case, any related notes), including any SEC Reports filed after the Escrow Release Datedate of this Agreement until the Closing, whether complied or not required by will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SECCommission with respect thereto as in effect at the time of filing. Such financial statements have been or will be prepared in accordance with GAAP consistently applied at the times and during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, so long as any Notes are outstandingor (ii) in the case of unaudited interim statements, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would extent they may exclude footnotes or may be required to be filed with the SEC on Forms condensed or summary statements as permitted by Form 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by Commission) and fairly present in all material respects the Issuer on financial position of the SEC’s ▇▇▇▇▇ system Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holdersubject, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required case of unaudited statements, to file those reports with the SEC as a “nonnormal year-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificatesend adjustments).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Imax Corp), Securities Purchase Agreement (Imax Corp)
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes Securities are outstanding, the Issuer Company (and the Subsidiary Guarantors, if applicable) will furnish to the Trustee and, upon written request, and to the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
Holders of Securities (1i) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reports; forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" that describes the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis and
, with respect to the annual information only, a report thereon by the Company's certified independent accountants and (2ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company (and the Subsidiary Guarantors, if applicable) were required to file such reports; provided that , in each case within the electronic filing time periods specified therein. In addition, whether or not required by the rules and regulations of the foregoing reports by SEC, the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee Company will file a copy of all such information and reports, and any Holderother information required by Section 13 or 15(d) of the Exchange Act, it being understood that with the Trustee shall not be responsible SEC for determining whether such filings have been made. If, notwithstanding the foregoing, public availability (unless the SEC will not accept such filings for a filing) and make such information available to securities analysts and prospective investors upon request. If the Company has designated any reason, the Issuer will post the reports specified in the preceding sentence on of its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any Unrestricted Subsidiaries that, alone or taken together, represent 10% or more of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% Consolidated Cash Flow of the Issuer’s corresponding consolidated amountCompany for the most recent consecutive four-quarter period, then the quarterly and annual financial information required by Section 4.02
(a) will the preceding paragraph shall include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and to the financial statements or in “the "Management’s 's Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant " of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from Subsidiaries. Concurrently with the financial condition and results of operations delivery of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information reports required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reportspreceding paragraph, information and documents the Company shall deliver to the Trustee will be for informational purposes only and to each Holder annual and quarterly financial statements with appropriate footnotes of the Trustee’s receipt Company and its Restricted Subsidiaries, all prepared and presented in a manner substantially consistent with those of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of Company and its covenants hereunder (as to which Subsidiaries on a consolidated basis required by the Trustee will be entitled to rely exclusively on Officers’ Certificates)preceding paragraph.
Appears in 2 contracts
Sources: Indenture (Portola Packaging, Inc. Mexico, S.A. De C.V.), Indenture (Portola Packaging Inc)
SEC Reports. The Company has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twenty-four (a24) On months preceding the date hereof on a timely basis or has received a valid extension of such time of filing and after has filed any such SEC Reports prior to the Escrow Release Dateexpiration of any such extension and has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twenty-four months preceding the date hereof. Such reports required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, together with any materials filed or furnished by the Company under the Exchange Act, whether or not any such reports were required being collectively referred to herein as the “SEC Reports” and, together with this Agreement and the Schedules to this Agreement, the “Disclosure Materials”. As of their respective dates, the SEC Reports filed by the Company complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed by the Company, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance in all material respects with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements, the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP or may be condensed or summary statements, and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. All material agreements to which the Company or any Subsidiary is a party or to which the property or assets of the Company or any Subsidiary are subject are included as part of or identified in the SEC Reports, to the extent such agreements are required to be included or identified pursuant to the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Securities Purchase Agreement (CareDx, Inc.), Securities Purchase Agreement (CareDx, Inc.)
SEC Reports. (aA) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish The Company shall deliver to the Trustee andTrustee, upon written request, the Holders, within no later than the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be such report is required to be filed with the SEC on Forms 10-Q and 10-K if Commission pursuant to the Issuer were Exchange Act (including, without limitation, to the extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), a copy of each report the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act; provided, however, that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the Commission; provided further, each such reports; and
(2) all current reports that would report will be deemed to be so delivered to the Trustee if the Company files such report with the Commission through the Commission’s E▇▇▇▇ database no later than the time such report is required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations Commission pursuant to the Trustee and any HolderExchange Act (including, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. Ifwithout limitation, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contraryextent applicable, this Section 4.02 does not require any extension permitted by Rule 12b-25 under the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provisionExchange Act), or to provide separate financial statements of any Guarantor; provided that . In the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with event the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, Company is at any time on and after the Escrow Release Date when the Issuer is not no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Issuer Company shall furnish continue to provide the Trustee and, upon request, any Holder, within the time period that the Company would have been required to file such reports with the Commission (including, without limitation, to the Holders extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), annual and quarterly consolidated financial statements substantially equivalent to prospective investorsfinancial statements that would have been included in reports filed with the Commission if the Company were subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, upon including, with respect to annual information only, a report thereon by the requests Company’s certified independent public accountants as such would be required in such reports filed with the Commission and, in each case, together with a management’s discussion and analysis of financial condition and results of operations which would be so required. The Company also shall comply with the other provisions of Trust Indenture Act § 314(a). Delivery of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be is for informational purposes only only, and the Trustee’s receipt of such thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on an Officers’ Certificates).
Appears in 2 contracts
Sources: Supplemental Indenture (Health Care Reit Inc /De/), Supplemental Indenture (Health Care Reit Inc /De/)
SEC Reports. The Company has timely filed or furnished, as applicable, all reports, proxy statements, schedules, forms, statements, certifications and other documents (aincluding exhibits and all other information incorporated by reference therein) On required to be filed or furnished by the Company under the Securities Exchange Act of 1934, as amended, and after the Escrow Release Date, whether or not required by the rules and regulations of promulgated thereunder (the SEC, so long as any Notes are outstanding“Exchange Act”) (the “SEC Reports”) since the Company was first required by Law or regulation to file such material. The Delivered Super 8-K complies, the Issuer Super 8-K when filed will furnish be substantially identical to the Trustee andDraft Super 8-K (as defined below) and will comply, upon written request, and the Holders, within SEC Reports at the time periods specified they were filed complied, in all material respects with the Securities Act or the Exchange Act, as applicable. There are no Contracts (or any material change or amendment thereto, or any waiver of any material right thereunder) that are required to be described in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would SEC Reports or will be required to be filed with described in the SEC on Forms 10-Q and 10Super 8-K if that were or are not described, in all material respects, therein or, in the Issuer were required to file such reports; and
case of Contracts (2or any material change or amendment thereto, or any waiver of any material right thereunder) all current reports that would will be required to be described in the Super 8-K, are not described in the Delivered Super 8-K. There are no Contracts (or any material change or amendment thereto, or any waiver of any material right thereunder) that are required to be filed with as exhibits to the SEC on Form Reports or the Super 8-K if that were not or will not have been filed as required in the Issuer were required SEC Reports or the Super 8-K. There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to file such reports; provided that the electronic filing SEC Reports. To the Company’s knowledge, none of the foregoing reports by SEC Reports is the Issuer on the SEC’s ▇▇▇▇▇ system subject of an ongoing SEC review. There are no SEC inquiries or investigations, other governmental inquiries or investigations or internal investigations pending or threatened in writing (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations or, to the Trustee and any HolderCompany’s knowledge, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provisionthreatened orally), or to provide separate financial statements of in each case regarding any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any accounting practice of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements Company or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as Subsidiaries or otherwise relating to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Subscription Agreement (Deep Fission, Inc.), Subscription Agreement (Deep Isolation Nuclear, Inc.)
SEC Reports. (a) On Except as set forth in Section 3.7 of the Company Disclosure Schedule, the Company has filed timely, or will file timely, all required forms, and after reports with the Escrow Release DateSEC since January 1, whether 2004 (including any forms or not required by reports filed with the SEC subsequent to the date of this Agreement) (collectively, the “Company SEC Reports”), all of which were prepared or will be prepared in all material respects in accordance with the applicable requirements of the Exchange Act, the Securities Act and the rules and regulations promulgated thereunder (the “Securities Laws”). As of their respective dates, the Company SEC Reports (a) complied, or with respect to those Company SEC Reports not yet filed will comply, as to form in all material respects with the applicable requirements of the SECSecurities Laws and (b) did not contain, so long as or with respect to those Company SEC Reports not yet filed will not contain, any Notes are outstanding, the Issuer will furnish untrue statement of a material fact or omit to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be state a material fact required to be filed stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each of the consolidated balance sheets included in or incorporated by reference into the Company SEC Reports (including the related notes and schedules) fairly presents, or will fairly present, in all material respects, the consolidated financial position of the Company and the Company Subsidiaries as of its date and each of the consolidated statements of income, retained earnings and cash flows of the Company included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) fairly presents, or will fairly present, in all material respects, the results of operations, retained earnings or cash flows, as the case may be, of the Company and the Company Subsidiaries for the periods set forth therein, in each case in accordance with GAAP consistently applied during the SEC on Forms periods involved, except as may be noted therein and except, in the case of the unaudited statements, as permitted by Form 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section Sections 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders Act and to prospective investors, upon the requests of such Holders, any information required to for normal year-end audit adjustments which would not be delivered pursuant to Rule 144A(d)(4) under the Securities Actmaterial in amount or effect.
(db) Delivery The records, systems, controls, data and information of the Company and the Company Subsidiaries are recorded, stored, maintained and operated under means that are under the exclusive ownership and direct control of the Company or the Company Subsidiaries, except for any reports, information non-exclusive ownership and documents non-direct control that would not have a Company Material Adverse Effect with respect to the Trustee will be for informational purposes only system of internal accounting controls described in the following sentence. Except as would not have a Company Material Adverse Effect, the Company and the TrusteeCompany Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including that: (1) transactions are executed only in accordance with management’s receipt authorization; (2) transactions are recorded as necessary to permit preparation of the financial statements of the Company and the Company Subsidiaries and to maintain accountability for the assets of the Company and the Company Subsidiaries; (3) access to such assets is permitted only in accordance with management’s authorization; (4) the reporting of such shall assets is compared with existing assets at regular intervals; and (5) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis (“Internal Controls”). Except as would not constitute constructive notice have a Company Material Adverse Effect, each of any the Company and the Company Subsidiaries (x) has designed disclosure controls and procedures (within the meaning of Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information contained therein or determinable from information contained thereinrelating to such entity and its subsidiaries is made known to the management of such entity by others within those entities as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Exchange Act with respect to the Company SEC Reports, including and (y) has disclosed, based on its most recent evaluation prior to the Issuer’s compliance with any date of this Agreement, to its auditors and the audit committee of its covenants hereunder board of trustees (as A) any significant deficiencies in the design or operation of Internal Controls which could adversely affect its ability to which the Trustee will be entitled record, process, summarize and report financial data and have disclosed to rely exclusively on Officers’ Certificates)its auditors any material weaknesses in Internal Controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in its Internal Controls.
Appears in 2 contracts
Sources: Merger Agreement (Geo Group Inc), Merger Agreement (CentraCore Properties Trust)
SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided Notwithstanding that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall Company may not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the extent permitted by the Exchange Act and the SEC, the Company will file or furnish with the SEC, and make available to the Trustee and the Holders of the Notes, the annual reports and to prospective investorsthe information, upon the requests documents and other reports (or copies of such Holdersportions of any of the foregoing as the SEC may by rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act within the time periods specified therein or in the relevant forms. In the event that the Company is not permitted to file such reports, documents and information with the SEC pursuant to the Exchange Act or any rule, regulation, interpretation or action of the SEC, the Company will nevertheless make available such Exchange Act information to the Trustee and the Holders of the Notes as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified therein. If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, or if the Company’s consolidated financial statements consolidate any Physician Groups that are not Restricted Subsidiaries, and if such Unrestricted Subsidiaries and Physician Groups that are not Restricted Subsidiaries would, in the aggregate and calculated as of the last day of the applicable fiscal quarter or fiscal year, as the case may be, constitute a Significant Subsidiary, then the quarterly report on Form 10-Q or annual report on Form 10-K (or any applicable successor forms) for such fiscal quarter or fiscal year, as the case may be, required by the preceding paragraph shall include a reasonably detailed presentation or, in the case of clause (b) below, a summary, (a) in the footnotes to the consolidated financial statements and (b) in Management’s Discussion and Analysis of Results of Operations and Financial Condition, of the consolidated financial condition and results of operations of the Company and its consolidated subsidiaries, excluding any such Unrestricted Subsidiaries and without consolidating any such Physician Groups that are not Restricted Subsidiaries (it being understood that information comparable to that appearing under the caption “Risk Factors—Risks Relating to Investment in the Notes–Our consolidated financial statements include the results of certain physician groups that are not owned by the Company and will not guarantee the notes” in the Company’s prospectus supplement dated June 10, 2014 relating to the original issuance of its 5.125% Senior Notes due 2024 on June 13, 2014 will be deemed to satisfy the requirements of this clause (b), provided that, for purposes of this clause (b), such information shall be provided for the three, six or nine month period of the then current fiscal year covered by such Form 10-Q (it being understood that no such information need be provided for any three month period within any such six or nine month period) or the most recent fiscal year covered by such Form 10-K, as the case may be). The quarterly and annual financial information required to be delivered pursuant to Rule 144A(d)(4by the preceding sentence shall reflect the adjustments necessary so that any Unrestricted Subsidiaries and any Physician Groups that are not Restricted Subsidiaries (and any Subsidiaries of such Unrestricted Subsidiaries and such Physician Groups) are not consolidated in the Company’s financial statements (it being understood that the Company’s direct or indirect equity interest in and share of the revenues, operating income, net income or similar operating results of any such Person that is accounted for under the Securities Act.
equity method, and any management fees or other amounts payable to the Company or any of its Restricted Subsidiaries by any such Physician Group that is not a Restricted Subsidiary, may be reflected in such consolidated financial information; and it being further understood that all such adjustments may appear in the notes to the financial statements and need not be made or reflected in the financial statements themselves). Anything in this paragraph to the contrary notwithstanding, the Company may, if it so elects, provide the information required by this paragraph in a current report on Form 8-K (dor any applicable successor form) filed or furnished substantially concurrently with the applicable Form 10-Q or 10-K, as the case may be. For purposes of this Section 4.18, the Company and the Subsidiary Guarantors will be deemed to have furnished the reports to the Trustee and the Holders of Notes as required by this Section 4.18 if they have filed or furnished such reports with the SEC via the ▇▇▇▇▇ (or successor or similar) filing system and such reports are publicly available. Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Indenture (Davita Healthcare Partners Inc.), Indenture (Physicians Choice Dialysis, LLC)
SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so So long as any Notes are outstanding, the Issuer Company will (i) furnish to the Holders or cause the Trustee and, upon written request, to furnish to the Holders, Holders in each case within the time periods specified in that such information would have otherwise been required to have been provided to the SEC’s SEC if the rules and regulations for non-accelerated filersapplicable to the filing of such information were applicable to the Company and (ii) post on its website within 10 Business Days thereafter:
(1) all quarterly and annual reports information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reportsForms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by the Company's certified independent accountants in accordance with the professional standards of the American Institute of Certified Public Accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required to file such reports; provided that the electronic filing . The availability of the foregoing reports by the Issuer materials on the SEC’s 's ▇▇▇▇▇ system (or any successor system) service shall be deemed to satisfy the Issuer’s Company's delivery obligations obligation. Following the consummation of the exchange offer or registration of the Notes contemplated by the Registration Rights Agreement, whether or not required by the SEC, the Company will file a copy of all the information and reports referred to in clauses (1) and (2) above with the Trustee SEC for public availability within the time periods specified in the SEC's rules and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, regulations (unless the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required a filing) and make such information available to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) abovesecurities analysts and prospective investors upon request. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at the Company has agreed that, for so long as any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActNotes remain outstanding, the Issuer shall it will furnish to the Holders and to securities analysts and prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4144A(d) (4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee . The Company will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance at all times comply with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ CertificatesTrust Indenture Act Section 314(a).
Appears in 2 contracts
Sources: Indenture (Leasehold Resource Group LLC), Indenture (SHG Holding Solutions Inc)
SEC Reports. (a) On and after Notwithstanding that the Escrow Release Date, whether or Company may not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Issuer shall furnish Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Company is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject to SEC reporting requirements as a non-accelerated filer. The Company will be deemed to have satisfied the requirements of this Section 404 if any Parent files reports, documents and information of the types otherwise so required, in each case within the applicable time periods. If such Parent has material operations separate and apart from its ownership of the Company, then the Company or such Parent will provide consolidating information, which need not be audited, that explains in reasonable detail the differences between the information relating to such Parent and its Subsidiaries, on the one hand, and the information relating to the Holders Company and to prospective investorsits Subsidiaries on a standalone basis, upon on the requests of such Holders, other hand. If any audited or reviewed financial statements or information required to be delivered included in any such filing are not reasonably available on a timely basis as a result of the Company’s or any such Parent’s accountants not being “independent” (as defined pursuant to Rule 144A(d)(4the Exchange Act and the rules and regulations of the SEC thereunder), the Company or such Parent may, in lieu of making such filing, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (a) under the Securities Act.
(d) Delivery Company or such Parent shall in any event be required to make such filing no later than the first anniversary of any reports, information and documents the date on which the same was otherwise required pursuant to the Trustee preceding provisions of this Section 404 (such initial date, the “Reporting Date”) and (b) if the Company or such Parent makes such an election and such filing has not been made, within 90 days after such Reporting Date, liquidated damages will be for informational purposes only accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made and (y) the Trustee’s receipt first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Trustee shall have no obligation to determine whether or not constitute constructive notice of such information, documents or reports have been filed pursuant to the SEC’s ▇▇▇▇▇ filing system (or its successor) or postings to any information contained therein website have occurred. The Trustee has no duty to participate in or determinable from information contained therein, including the Issuer’s compliance with monitor any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)conference calls.
Appears in 2 contracts
Sources: Indenture (Hertz Corp), Indenture (Hertz Corp)
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations Company is subject to Section 13(a) or 15(d) of the SECExchange Act, so long as or any Notes are outstandingsuccessor provision thereto, the Issuer will furnish Company shall file with the SEC the annual reports, quarterly reports and other documents which the Company would have been required to file with the Trustee andSEC pursuant to such Section 13(a) or 15(d) or any successor provision thereto if the Company were subject thereto, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required such documents to be filed with the SEC on Forms 10-Q and 10-K if or prior to the Issuer were respective dates (the "REQUIRED FILING DATES") by which the Company would have been required to file such reportsthem; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K PROVIDED, HOWEVER, if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Issuer Company shall not be required to file such reports and documents with the SEC under Section 13(a) or 15(d) of the Exchange Act (or any successor provisions thereto) so long as (i) Parent files the reports and documents with the SEC under Section 13(a) or 15(d) of the Exchange Act that it is required to file and (ii) the Company and Parent are in compliance with the requirements set forth in Rule 3-10 of Regulation S-X under the Exchange Act. The Company shall also (whether or not it is required to file reports with the SEC), within 30 days of 66 each Required Filing Date, (i) transmit by mail to all Securityholders, as their names and addresses appear in the applicable security register, without cost to such Holders, and (ii) file with the Trustee, copies of the annual reports, quarterly reports and other documents (without exhibits) which the Company has filed or would have filed, or which Parent has filed, with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act, any successor provisions thereto or this Section. The Company shall not be required to file any report with the SEC if the SEC does not permit such filing. In addition, the Company shall furnish to the Holders Trustee, to the Securityholders and to securities analysts and prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, Act and the exhibits omitted from the information and documents furnished pursuant to the Trustee will be preceding sentence, for informational purposes only and so long as the Trustee’s receipt Securities are not freely transferable under the Securities Act. The Company also shall comply with the other provisions of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ CertificatesTIA Section 314(a).
Appears in 2 contracts
Sources: Indenture (Medical Documenting Systems Inc), Indenture (United Surgical Partners International Inc)
SEC Reports. (aDisclosure Materials. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act, including pursuant to Section 13(a) On or 15(d) thereof, for the twelve months preceding the date hereof on a timely basis or has received a valid extension of such time of filing and after has filed any such SEC Reports prior to the Escrow Release Dateexpiration of any such extension and has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof. Such reports required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, together with any materials filed or furnished by the Company under the Exchange Act, whether or not any such reports were required being collectively referred to herein as the “SEC Reports” and, together with this Agreement and the Schedules to this Agreement, the “Disclosure Materials”. As of their respective dates (or, if amended or superseded by a filing prior to the Closing Date, then on the date of such filing), the SEC Reports filed by the Company complied in all material respects with the requirements of the Securities Act and the Exchange Act (as applicable) and the rules and regulations of the SECCommission promulgated thereunder, so long as any Notes are outstandingand none of the SEC Reports, the Issuer will furnish when filed (or, if amended or superseded by a filing prior to the Trustee andClosing Date, upon written requestthen on the date of such filing)by the Company, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the Holdersstatements therein, within the time periods specified in the SEC’s light of the circumstances under which they were made, not misleading. All material agreements to which the Company is a party or to which the property or assets of the Company are subject are included as part of or identified in the SEC Reports, to the extent such agreements are required to be included or identified pursuant to the rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filerCommission.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Bluefly Inc), Securities Purchase Agreement (RHO Ventures VI LP)
SEC Reports. (a) On and after Notwithstanding that the Escrow Release Date, whether or Company may not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Issuer Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC, in which case the Company shall make available the annual reports, documents, information and other reports described in this Section 405 to the Trustee and the Holders, in each case, within 5 days after the time the Company would otherwise be required to file such information with the SEC if it were subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act), so long as the Notes are Outstanding, the annual reports, documents, information and other reports that the Company is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. Notwithstanding the foregoing, if any audited or reviewed financial statements or information required to be included in any such filing or otherwise made available under this Section 405 are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or otherwise making available such audited or reviewed financial statements or information, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (a) the Company shall in any event be required to make such filing or transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this Section 405 (such initial date, the “Reporting Date”) and (b) if the Company makes such an election and such filing has not been made, or such documents, information and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such reports, documents and information have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Company will be deemed to have satisfied the requirements of this Section 405 if any parent files reports, documents and information of the types otherwise so required to be filed, in each case within the applicable time periods; provided that if such parent shall not own, directly or indirectly, 100% of the Capital Stock of the Company or if such parent shall hold material assets or have material operations other than through the Company and its Subsidiaries as of the last day of the relevant reporting period, such reports, documents and information shall be accompanied by consolidating information, which need not be audited or compliant with Regulation S-X under the Securities Act, that explains in reasonable detail (as determined in good faith by the Company, which determination shall be conclusive) the quantitative differences between the financial information relating to such parent and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand. In addition, to the extent not satisfied by the foregoing, the Company will furnish to the Holders thereof and to prospective investorsinvestors in such Notes, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) (as in effect on the Issue Date). In connection with this Section 405, it is understood that the Company shall not be required to (a) comply with Section 302, Section 404 and Section 906 of the Sarbanes Oxley Act of 2002, as amended, or related items 307 and 308 of Regulation S-K under the Securities Act or (b) comply with Articles 3-09, 3-10 and 3-16 of Regulation S-X under the Securities Act.
(d) . Delivery of any such reports, documents, and information and documents described in this Section 405 to the Trustee will shall be for informational purposes only only, and the Trustee’s receipt of such them shall not constitute constructive notice of any information contained therein or determinable from information contained therein, therein (including the IssuerCompany’s compliance with any of its covenants hereunder (under this Indenture as to which the Trustee will be is entitled to rely exclusively on Officers’ Certificatesan Officer’s Certificate). It is understood that the Trustee shall have no responsibility to determine if such reports, documents, or information have been filed with the SEC, posted on any website or otherwise furnished to the Holders.
Appears in 2 contracts
Sources: Indenture (Frontdoor, Inc.), Indenture (Servicemaster Global Holdings Inc)
SEC Reports. (a) On The Parent has filed on a timely basis all reports, registration statements, forms, schedules and after other documents required to be filed by it with the Escrow Release DateSEC, the OTC BB and any other Governmental Entity for the period from January 1, 2010 to the date hereof. No Governmental Entity has initiated or has pending any Proceeding or investigation into the business, disclosures or operations of the Parent or any of its subsidiaries. There is no unresolved or threatened comment, exception or stop order by any Governmental Entity with respect to any filing by the Parent or any of its subsidiaries, relating to any examinations or inspections of the Parent or any of its subsidiaries. There have been no formal inquiries by, or disagreements or disputes with, any Governmental Entity with respect to the business, operations, policies or procedures of the Parent or any of its subsidiaries. Except to the extent available in full without redaction on the SEC’s web site through the Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”) two days prior to the date of this Agreement, the Parent has made available to the Company copies in the form filed with the SEC (including the full text of any document filed subject to a request for confidential treatment or as an exhibit to such filing) all of the following that have been filed with the SEC prior to the date hereof: (i) the Parent’s Annual Reports on Forms 10-K, (ii) the Parent’s Quarterly Reports on Forms 10-Q, (iii) all proxy and information statements relating to the Parent’s meetings of stockholders (whether annual or special) held, or by stockholder consents, (iv) the Parent’s Current Reports on Form 8-K, and (v) all other forms, reports, registration statements and other documents filed by the Parent with the SEC (the forms, reports, registration statements and other documents referred to in clauses (i), (ii), (iii), (iv) and (v) above, whether or not required by available through ▇▇▇▇▇, together with the rules and regulations of the SECexhibits filed or furnished therewith, so long as any Notes are outstandingare, collectively, the Issuer will furnish “Parent Reports,” and, to the Trustee and, upon written request, the Holders, within the time periods specified extent available in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s full without redaction through ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations at least two business days prior to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoingdate of this Agreement, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filerFiled Parent Reports”).”
(b) Notwithstanding anything to No Parent Report or communication, at the contrarytime filed, this Section 4.02 does not require furnished or communicated (and, in the Issuer to comply with Rule 3-10 or Rule 3-16 case of Regulation S-X (or any successor provisionregistration statements and proxy and/or information statements, on the dates of effectiveness and the dates of the relevant meetings, respectively), contained any untrue statement of a material fact or omitted to provide separate financial statements of state any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports material fact required to be delivered pursuant stated therein or necessary in order to Section 4.02(a)(1) above. At any time that any make the statements made therein, in light of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA circumstances in which they were made, not misleading. As of such Unrestricted Subsidiaries (determined their respective dates, all Parent Reports complied as to form in a manner consistent all material respects with the definition of EBITDA in this Indenture) account collectively for more than 1.0% requirements of the Issuer’s corresponding consolidated amountSecurities Act or the Exchange Act, as the case may be, and, to the extent then applicable, the quarterly ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, including in each case, the rules and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerregulations thereunder.
(c) In additionFrom January 1, at any time on and after the Escrow Release Date when the Issuer is not subject 2010 to the reporting requirements date hereof, the Parent has been in compliance in all material respects with (i) the applicable rules and regulations of Section 13 or 15(dFINRA in respect of which the Parent Common Stock is qualified for quotation and trading on the OTCBB, and (ii) the applicable provisions of the Exchange ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, the Issuer shall furnish . The Parent has made available to the Holders Company true, correct and to prospective investors, upon complete copies of and Section 3.6 of the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4Parent Disclosure Schedule lists (A) under all correspondence between the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only Parent and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained thereinOTCBB since January 1, including 2010, and (B) all correspondence between the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)Parent and FINRA since January 1, 2010.
Appears in 2 contracts
Sources: Asset Purchase Agreement (REGAL ONE Corp), Asset Purchase Agreement (REGAL ONE Corp)
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will shall furnish to the Trustee and, upon written request, the HoldersHolders of Notes, within fifteen (15) days after the time periods specified in the SEC’s rules and regulations for non-accelerated filersa company that is subject to Section 13(a) or 15(d) of the Exchange Act:
(1) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reportsForms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that any such above information or reports filed with the electronic filing Electronic Data Gathering and Retrieval System of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system SEC (or any successor system) and available publicly on the Internet shall be deemed to satisfy be furnished to the Holders of Notes. The quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Issuer’s delivery obligations Unrestricted Subsidiaries. In addition, whether or not required by the SEC, the Issuer shall file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Trustee SEC for public availability within fifteen (15) days after the time periods specified in the SEC’s rules and any Holder, regulations (unless the SEC will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. The Issuer agrees that it being understood that the Trustee shall not be responsible take any action for determining whether the purpose of causing the SEC not to accept such filings have been madefilings. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will shall post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) aboveSEC. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of extent not satisfied by the Exchange Actforegoing, the Issuer shall agree that, for so long as any Notes remain outstanding, it shall furnish to the Holders of Notes and to securities analysts and prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Indenture (Horsehead Holding Corp), Indenture (Horsehead Holding Corp)
SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. reports; If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Sources: Indenture
SEC Reports. (a) On Except as set forth on Schedule 5.06(a), Licensee has filed with or furnished to the SEC on a timely basis true and after complete copies of all forms, reports, schedules, statements and other documents required to be filed with or furnished to the Escrow Release DateSEC by Licensee (all such documents, whether together with all exhibits and schedules to the foregoing materials and all information incorporated therein by reference, the “Licensee SEC Documents”). As of their respective filing dates (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), the Licensee SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, including, in each case, the rules and regulations promulgated thereunder, and none of the Licensee SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not required misleading. As of the date hereof, Licensee does not have any material non-public information that it has not shared with Licensor.
(b) The financial statements (including the related notes and schedules thereto) included (or incorporated by reference) in the Licensee SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SECSEC with respect thereto, so long as any Notes are outstandinghave been prepared in accordance with GAAP (except, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the case of unaudited statements, as permitted by Form 10-Q of the SEC’s ) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Licensee and its subsidiaries as of the dates thereof and their respective consolidated results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal and recurring year-end audit adjustments that were not, or are not expected to be, material in amount), all in accordance with GAAP and the applicable rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports promulgated by the Issuer on the SEC’s ▇▇▇▇▇ system (or . Since June 30, 2023, Licensee has not made any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified change in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 accounting practices or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided policies applied in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any preparation of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountits financial statements, then the quarterly and annual financial information except as required by Section 4.02
(a) will include a reasonably detailed quantitative presentationGAAP, either on the face of the financial statements SEC rule or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” policy or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerapplicable Law.
(c) In addition, at any time on Licensee is in compliance in all material respects with the applicable listing and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) corporate governance rules and regulations of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActNYSE American.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Neither Licensee nor any of its covenants hereunder subsidiaries has any liabilities or obligations of any nature, whether accrued, absolute, contingent or otherwise, known or unknown, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP, except (a) to the extent disclosed in the Licensee SEC Documents and (b) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2022 that are not material to Licensee and its subsidiaries, taken as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)a whole.
Appears in 1 contract
Sources: Intellectual Property License Agreement (Globalstar, Inc.)
SEC Reports. (aA) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish The Company shall deliver to the Trustee andTrustee, upon written request, the Holders, within no later than the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be such report is required to be filed with the SEC on Forms 10-Q and 10-K if Commission pursuant to the Issuer were Exchange Act (including, without limitation, to the extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), a copy of each report the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act; provided, however, that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the Commission; provided further, each such reports; and
(2) all current reports that would report will be deemed to be so delivered to the Trustee if the Company files such report with the Commission through the Commission’s ▇▇▇▇▇ database no later than the time such report is required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations Commission pursuant to the Trustee and any HolderExchange Act (including, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. Ifwithout limitation, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contraryextent applicable, this Section 4.02 does not require any extension permitted by Rule 12b-25 under the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provisionExchange Act), or to provide separate financial statements of any Guarantor; provided that . In the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with event the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, Company is at any time on and after the Escrow Release Date when the Issuer is not no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Issuer Company shall furnish continue to provide the Trustee and, upon request, any Holder, within the time period that the Company would have been required to file such reports with the Commission (including, without limitation, to the Holders extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), annual and quarterly consolidated financial statements substantially equivalent to prospective investorsfinancial statements that would have been included in reports filed with the Commission if the Company were subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, upon including, with respect to annual information only, a report thereon by the requests Company’s certified independent public accountants as such would be required in such reports filed with the Commission and, in each case, together with a management’s discussion and analysis of financial condition and results of operations which would be so required. The Company also shall comply with the other provisions of Trust Indenture Act § 314(a). Delivery of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be is for informational purposes only only, and the Trustee’s receipt of such thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on an Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On Each of the Company and the Partnership has filed all reports, schedules, forms, statements and other documents required to be filed with the SEC since January 1, 2002 through the date hereof (collectively, the “Company SEC Reports”), all of which, at the time of filing thereof, complied in all material respects with all applicable requirements of the Exchange Act, the Securities Act and the rules and regulations promulgated thereunder (the “Securities Laws”) applicable to such Company SEC Reports. None of the Company SEC Reports at the time of filing contained, nor will any report, schedule, form, statement or other document filed by the Company or the Partnership after the Escrow Release Datedate hereof and prior to the Effective Time contain, whether any untrue statement of a material fact or omitted, or will omit, to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not required misleading. Each of the consolidated financial statements of the Company included or incorporated by reference in the Company SEC Reports or of the Partnership included or incorporated by reference in the Company SEC Reports complied, or will comply if filed after the date hereof, in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been, or will be if filed after the date hereof, prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC and normal year end audit adjustments which would not be material in amount or effect) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented, or will fairly present if filed after the date hereof, in all material respects in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, so long the consolidated financial position of the Company and its Subsidiaries or of the Partnership and its Subsidiaries, as any Notes are outstandingthe case may be, in each case taken as a whole, as of the Issuer will furnish to dates thereof and the Trustee andconsolidated results of operations, upon written requestshareholders’ and partners’ equity and cash flows for the periods then ended (except, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms case of unaudited statements, as permitted by Form 10-Q under the Exchange Act). The Company has established and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed maintains disclosure controls and procedures and has otherwise operated in compliance with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing requirements under Rules 13a-15 and 15d-15 of the foregoing reports by Exchange Act. The Company has designed and maintains a system of “internal controls over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Issuer on Exchange Act) sufficient to provide reasonable assurances regarding the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy reliability of financial reporting for the Issuer’s delivery obligations to Company and the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filerPartnership.”
(b) Notwithstanding anything to Except as set forth in Sections 3.7(b) and 3.8 of the contraryCompany Disclosure Schedule, this Section 4.02 does not require there are no liabilities of the Issuer to comply with Rule 3-10 Company or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Company Subsidiaries of any kind whatsoever, whether or not accrued and whether or not contingent or absolute, that are Unrestricted Subsidiaries material to the Company and the EBITDA Company Subsidiaries, taken as a whole, other than (i) liabilities disclosed in the Company SEC Reports filed prior to the date hereof (the “Company Filed SEC Reports”), (ii) liabilities incurred on behalf of such Unrestricted Subsidiaries the Company or any Company Subsidiary in connection with this Agreement and the contemplated Mergers, and (determined iii) liabilities incurred in a manner the ordinary course of business consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountpast practice since March 31, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements 2005 as would not individually or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant aggregate reasonably be likely to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerhave a Company Material Adverse Effect.
(c) In additionThe Company has previously provided or made available to Parent a complete and correct copy of any amendments or modifications which have not yet been filed with the SEC to agreements, at any time on and after documents or other instruments which previously had been filed by the Escrow Release Date when Company with the Issuer is not subject SEC as exhibits to the reporting requirements of Section 13 Company SEC Reports pursuant to the Securities Act and the rules and regulations promulgated thereunder or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only Act and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)rules and regulations promulgated thereunder.
Appears in 1 contract
SEC Reports. (a) On The Company has furnished the Purchasers with true and after complete copies (including all amendments thereof) of its (i) Annual Reports on Form 20-F for the Escrow Release Datefiscal years ended December 31, whether 1997 and 1998 as filed with the SEC, (ii) all other documents filed with the SEC (pursuant to Section 13, 14(a) and 15(d) of the Exchange Act) and the Canadian securities regulatory authorities since January 1, 1996 and (iii) all registration statements filed with the SEC since January 1, 1996, which are all the documents (other than preliminary material) that the Company filed or not was required to file with the SEC or the Canadian securities regulatory authorities from that date through the date hereof (clauses (i) through (iii) being referred to herein collectively as the "SEC REPORTS"). Except to the extent they may have been subsequently amended or otherwise modified prior to the date hereof by subsequent reporting or filings, as of their respective dates, the SEC Reports (as the same may have been amended or otherwise modified) complied in all material respects with the requirements of the Securities Act or the Exchange Act and the rules and regulations of the SECSEC thereunder applicable to such reports and registration statements. Except to the extent they may have been subsequently amended or otherwise modified prior to the date hereof by subsequent reporting or filings, so long as any Notes are outstandingof their respective dates, the Issuer will furnish SEC Reports did not contain any untrue statement of a material fact or omit to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be state a material fact required to be filed with stated therein or necessary to make the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing statements therein, in light of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holdercircumstances under which they were made, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filermisleading.”
(b) Notwithstanding anything From the date hereof through the Closing Date, the Company will promptly furnish to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements Purchasers upon their being filed copies of any Guarantor; provided that documents filed by the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent Company with the information provided SEC or the Canadian securities regulatory authorities (the "INTERIM SEC REPORTS"). As of their respective dates, the Interim SEC Reports will comply in all material respects with the Offering Memorandum in requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such reports and registration statements. As of their respective dates, the Interim SEC Reports will not contain any untrue statement of a material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to Section 4.02(a)(1) above. At any time that any make the statements therein, in light of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountcircumstances under which they were made, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuernot misleading.
(c) In additionThe audited consolidated financial statements as at and for the period ended December 31, at any time on and after 1998 of the Escrow Release Date when Company included in the Issuer is not subject SEC Reports (the "1998 FINANCIAL STATEMENTS") comply as to the reporting form in all material respects with accounting requirements of Section 13 the Securities Act or 15(d) of the Exchange Act, as applicable, and with the Issuer shall furnish to published rules and regulations of the Holders SEC with respect thereto. The 1998 Financial Statements (i) have been prepared in accordance with generally accepted accounting principles in the United States of America ("GAAP") applied on a consistent basis (except as may be indicated therein or in the notes thereto), (ii) present fairly, in all material respects, the financial position of the Company and to prospective investors, upon its subsidiaries as of the requests dates thereof and the results of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4their operations and cash flows for the periods then ended and (iii) under are in all material respects in agreement with the Securities Actbooks and records of the Company and its subsidiaries.
(d) Delivery Except as otherwise disclosed in a Form 6-K filed by the Company on July 7, 1999, the unaudited interim financial statements of the Company as at and for all periods commencing on or after January 1, 1999 included in the SEC Reports or the Interim SEC Reports comply, or in the case of the Interim SEC Reports will comply, as to form in all material respects with accounting requirements of the Securities Act or the Exchange Act, as applicable, and with the published rules and regulations of the SEC with respect thereto. Except as otherwise disclosed in a Form 6-K filed by the Company on July 7, 1999, the condensed financial statements included in the SEC Reports or in the Interim SEC Reports: (i) have been, or in the case of the Interim SEC Reports will be, prepared in accordance with GAAP applied on a consistent basis (except as may be indicated therein or in the notes thereto), (ii) present or will present fairly, in all material respects, the financial position of the Company and its subsidiaries as of the dates thereof and the results of their operations and cash flows for the periods then ended subject to normal year-end audit adjustments and any reports, other adjustments described therein and the fact that certain information and documents to notes have been condensed or omitted in accordance with the Trustee will be for informational purposes only Exchange Act and the Trustee’s receipt rules and regulations promulgated thereunder, and (iii) are, and will be, in all material respects in agreement with the books and records of such shall not constitute constructive notice the Company and its subsidiaries.
(e) The Company and its subsidiaries keep proper accounting records in which all material assets and liabilities, and all material transactions, of any information contained therein the Company and its subsidiaries are recorded in conformity with applicable accounting principles. No part of the Company's or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder subsidiaries' accounting system or records, or access thereto, is under the control of a Person who is not an employee of the Company or such subsidiary.
(f) The Company, along with its subsidiaries, had less than $25,000,000 of aggregate sales in the United States in the most recently completed fiscal year, and as to which of March 31, 1999 owned, either directly or indirectly, assets in the Trustee will be entitled to rely exclusively on Officers’ Certificates)United States with an aggregate book value of less than $15,000,000.
Appears in 1 contract
Sources: Securities Purchase Agreement (Visible Genetics Inc)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act, including without limitation pursuant to Section 13 or 15(d) thereof, since the filing of the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2023 (athe “2023 Form 20-F”) On through the date hereof on a timely basis or has received a valid extension of such time of filing and after has filed any such SEC Reports (as defined below) prior to the Escrow Release Dateexpiration of any such extension. As of its respective filing date (or, whether if amended or superseded by a filing prior to the date hereof, on the date of such filing), the 2023 Form 20-F, and all other reports of the Company filed with the Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act from the filing date of the 2023 Form 20-F through the date of this Agreement (including the exhibits and schedules thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act. As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each SEC Report filed pursuant to the Exchange Act did not required by contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Reports complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed SEC with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings respect thereto. Such financial statements have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified prepared in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports accordance with the SEC as a “non-accelerated filer.International Financial Reporting Standards (”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provisionIFRS”), or to provide separate financial statements of any Guarantor; provided that consistently applied, during the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided periods involved (except (i) as may be otherwise indicated in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes thereto, or may be condensed or summary statements) and fairly present in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by all material respects the Issuer pursuant to this covenant consolidated financial position of the financial condition Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In additionunaudited statements, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificatesnormal year-end audit adjustments).
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release DateUnless otherwise provided for a particular Series of Securities in a Board Resolution, whether a supplemental indenture or not required by the rules and regulations of the SECan Officers’ Certificate, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided notwithstanding that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall Company may not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall furnish provide the Trustee and Holders within the time periods (including any extensions thereof) specified in the SEC’s rules and regulations copies of its annual report and certain information, documents and other reports that are specified in Sections 13 and 15(d) of the Exchange Act; provided that, with respect to current reports that would be required to be filed with the SEC on Form 8-K, only such reports that would be required to be filed pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement),
4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) or 5.01 (Changes in Control of Registrant) shall be provided to the Trustee and the Holders; provided, however, that no such report shall be required to be furnished if the Company determines in its good faith judgment that the event to be disclosed in such report is not material to the Holders or the business, assets, operations, financial position or prospects of the Company and to prospective investors, upon the requests its Significant Subsidiaries taken as a whole. Delivery of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ Certificates). The Company also shall comply with the other provisions of Trust Indenture Act Section 314(a).
Appears in 1 contract
Sources: Indenture (Roadrunner Transportation Systems, Inc.)
SEC Reports. Notwithstanding that the Company may not be ----------- required to be or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act applicable to a "foreign private issuer" (a) On as such term is defined in Rule 3b-4 under the Exchange Act), from and after the Escrow Release Datedate on which the Company first becomes subject to such reporting requirements, whether the Company shall file with the SEC (unless such filing is not permitted under the Exchange Act or not required by the rules and regulations of the SEC), so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing following reports by the Issuer dates indicated (or, in the case of the first such report, if later, the date that is 45 days after the effectiveness of a registration statement in respect of Initial Notes or Exchange Notes exchanged therefor, as the case may be): (i) within 120 days from the end of each fiscal year, an annual report on the SEC’s ▇▇▇▇▇ system Form 20-F (or any successor systemform) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with containing the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1contained therein for such fiscal year, and (ii) above. At any time that any within 60 days after the end of each of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined first three quarters in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amounteach fiscal year, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either reports on the face of the Form 6-K containing unaudited financial statements or (including a balance sheet and statement of income, changes in the footnotes thereto, stockholders' equity and in “cash flows) and Management’s 's Discussion and Analysis of Financial Condition and Results of Operations” Operations for and as of the end of such quarters (with comparable financial statements for such quarter of the immediately preceding fiscal year). The Company will also, within 15 days after the date on which the Company files such reports, transmit by mail to all Holders, as their names and addresses appear in the Note Register, and to the Trustee copies of any such information, documents and reports (without exhibits) (or, in lieu of one or elsewhere more of the quarterly reports for fiscal 1998, a registration statement filed with the SEC under the Securities Act or any amendment thereto, provided such registration statement or amendment contains the information that would have been included in reports provided each such report). The Company will be deemed to have satisfied such requirements if a Parent files and provides reports, documents and information of the types otherwise so required to be filed by the Issuer Company, or of the types required to be filed by a U.S. issuer with the SEC pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(cSection 13(a) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, in each case within the Issuer shall furnish applicable time periods, and the Company is not required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any exemptive relief) because of the filings by such Parent. The Company (and, to the Holders and to prospective investorsextent required under the TIA, any other obligor upon the requests Notes) also shall comply with the other provisions of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4TIA (S) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates314(a).
Appears in 1 contract
SEC Reports. (a) On Since December 31, 2012, the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required (all such forms, reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q and 10-K if at or prior to the Issuer were required to file such reports; and
(2) all current reports Effective Time that would be are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer on Exchange Act, as the SEC’s case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy Act, each as in effect on the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionNeither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Authority any written comments or questions with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, at any time on and after the Escrow Release Date when the Issuer is not subject and, to the reporting requirements of Section 13 or 15(d) knowledge of the Exchange ActCompany, there is not, any investigation or review being conducted by the Issuer shall furnish SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActSEC Reports.
(d) Delivery None of the Company’s Subsidiaries is required to file any forms, reports, information schedules, statements or other documents with the SEC.
(e) No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, except as disclosed in certifications filed with the SEC Reports, and documents to at the Trustee will be for informational purposes only time of filing or submission of each such certification, such certification was true and accurate and complied with the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Neither the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received notice from any Governmental Authority challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SECCommission, so long as any Notes are outstanding, the Issuer will Issuers shall furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
Holders of Notes (1i) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC Commission on Forms 10-Q and 10-K if the Issuer Issuers were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any HolderForms, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as including a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of that describes the financial condition position and results of operations of the Issuer Company and its Restricted Subsidiaries separate from and, with respect to the financial condition annual information only, a report thereon by the Issuers’ certified independent accountants and results of operations (ii) all information that would be required to be contained in a filing with the Commission on Form 8-K if the Issuers were required to file such reports. The information required to be delivered pursuant to clause (i) of the Unrestricted Subsidiaries of preceding sentence shall be delivered for each fiscal quarter and fiscal year in each case no later than the Issuer.
(c) In additiondate the Issuers would be required to file a Form 10-Q or Form 10-K, at any time on and after as the Escrow Release Date when case may be, if the Issuer is not subject Issuers were then required to the reporting requirements of make filings pursuant to Section 13 or 15(d) of the Exchange Act, and the Issuer information required to be delivered pursuant to clause (ii) of the preceding sentence shall be delivered in each case no later than the date the Issuers would be required to file a Form 10-Q or Form 10-K, as the case may be, covering the period during which the reportable information would be required to be reported on Form 8-K if the Issuers were then required to make filings pursuant to Section 15(d) of the Exchange Act, provided, however, that this Section 4.02(a) shall not be applicable to any period for which the Issuers are required to file reports with the Commission pursuant to Section 4.02(b).
(b) Whether or not required by the rules and regulations of the Commission, if the Issuers become obligated by the terms of the Registration Rights Agreement to register the Notes under the Securities Act, the Issuers shall file with the Commission for public availability such reports or other filings as are required of an entity which is subject to the reporting requirements under Section 15(d) of the Exchange Act, (unless the Commission will not accept such filings) and make such information available to securities analysts and prospective investors upon request, beginning on the date the Issuers become required to begin making filings with the Commission pursuant to Section 15(d) of the Exchange Act as a result of the registration of the Notes pursuant to Section 5 of the Securities Act and continuing for so long thereafter as any of the Notes continue to be outstanding.
(c) The Issuers agree that, for so long as any Notes remain outstanding, they will furnish to the Holders and to securities analysts and prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery The Issuers also shall comply with the other provisions of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ CertificatesTIA Section 314(a).
Appears in 1 contract
Sources: Indenture (Eldorado Resorts LLC)
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) On and after of the Escrow Release DateExchange Act, whether or not required to the extent permitted by the rules and regulations of Exchange Act, the Company will file with the SEC, so long as any Notes are outstanding, the Issuer will furnish and make available to the Trustee and, upon written request, and the Holders, within registered Holders of the time periods specified in the SEC’s rules and regulations for non-accelerated filersSecurities:
(1) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reportsForms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required to file such reports. In the event that the Company is not permitted to file such reports, documents and information with the SEC pursuant to the Exchange Act, the Company will nevertheless make available such Exchange Act information to the Trustee and the Holders of the Securities as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within 15 days of the time periods specified therein or in the relevant Forms; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee Company shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those furnish any information, certifications or reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 required by Items 307 or Rule 3-16 308 of Regulation S-X (K prior to the commencement of the Exchange Offer or any successor provision), or to provide separate financial statements the effectiveness of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with Shelf Registration Statement. If the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that Company has designated any of the Issuer’s its Subsidiaries are as Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSubsidiaries, then the quarterly and annual financial information required by Section 4.02
(a) will the preceding paragraph shall include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, to the financial statements and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant , of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Subsidiaries. In addition, at any time on the Company and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish Guarantors have agreed that they will make available to the Holders and to prospective investors, upon the requests request of such Holders, any the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable under the Securities Act.
(d) Delivery . For purposes of any reportsthis Section 3.12, information the Company and documents the Note Guarantors will be deemed to have furnished the reports to the Trustee will be for informational purposes only and the Trustee’s receipt Holders of Securities as required by this Section 3.12 if it has filed such reports with the SEC via the E▇▇▇▇ filing system and such reports are publicly available. The filing requirements set forth above for the applicable period shall be deemed satisfied by the Company prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by the filing with the SEC of the exchange offer registration statement and/or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act; provided that this paragraph shall not constitute constructive notice supersede or in any manner suspend or delay the Company’s reporting obligations set forth in the first three paragraphs of this Section 3.12. The Parent may satisfy the obligations of the Company set forth above; provided that (x) the financial information filed with the SEC or delivered to Holders pursuant to this covenant should include consolidating financial statements for the Parent, the Company, the Subsidiary Guarantors and the Subsidiaries that are not Subsidiary Guarantors in the form prescribed by the SEC and (y) the Parent is not engaged in any information contained therein business in any material respect other than incidental to its ownership, directly or determinable from information contained thereinindirectly, including of the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)Company.
Appears in 1 contract
Sources: Indenture (Libbey Inc)
SEC Reports. (a) On Since December 31, 2016 (the “Reference Date”), the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required (all such forms, reports, schedules, statements and documents filed, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q and 10-K if at or prior to the Issuer were required to file such reports; andEffective Time, the “SEC Reports”).
(2b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all current reports that would be required to be filed material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer on Exchange Act, as the SEC’s case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy Act, each as in effect on the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionSince the Reference Date, at neither the Company nor any time on and after of its Subsidiaries has received from the Escrow Release Date when SEC or any other Governmental Authority any written comments or questions with respect to any of the Issuer is not subject SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the reporting requirements of Section 13 or 15(d) knowledge of the Exchange ActCompany, there is not, any investigation or review being conducted by the Issuer shall furnish SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActSEC Reports.
(d) Delivery None of the Company’s Subsidiaries is required to file any forms, reports, information schedules, statements or other documents with the SEC.
(e) No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, except as disclosed in certifications filed with the SEC Reports, and documents to at the Trustee will be for informational purposes only time of filing or submission of each such certification, such certification was true and accurate and complied with the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Neither the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received notice from any Governmental Authority challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
Sources: Merger Agreement (Imperva Inc)
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SECExchange Act, so long as if not filed electronically with the SEC through ▇▇▇▇▇ (or any Notes are outstandingsuccessor system), the Issuer will furnish Company shall provide to the Trustee and, upon written request, and the Holdersregistered Holders of the Securities, within 15 days of the time periods specified in the SEC’s rules and regulations for non-accelerated filersrelevant forms:
(1) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reportsForms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required to file such reports; provided that . The requirement for the electronic filing of the foregoing reports Company to provide information may be satisfied by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee posting such reports, documents and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence information on its website within the time periods specified by this Section 3.2; provided, however, that would apply if the Issuer were required to file those reports with Company shall (upon request) provide one copy of the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything exhibits of the foregoing to the contrary, this Section 4.02 does not require Trustee and shall (upon request) provide additional copies of such exhibits to any Holder or prospective Holder. If the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that Company has designated any of the Issuer’s its Subsidiaries are as Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in Subsidiaries, either individually or collectively, would otherwise have been a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSignificant Subsidiary, then the quarterly and annual financial information required by the first paragraph of this Section 4.02
(a) will 3.2 shall include a reasonably detailed quantitative presentationpresentation of the financial condition and results of operations of the Company and its Restricted Subsidiaries, either on the face of the financial statements or in the footnotes thereto, to the financial statements and in the “Management’s Discussion and Analysis of Financial Condition and Results of OperationsOperations and Financial Condition” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) section. In addition, at any time on the Company and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Subsidiary Guarantors shall furnish make available to the Holders and to prospective investors, upon the requests request of such Holders, any the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable under the Securities Act.
. For purposes of this Section 3.2, the Company and the Subsidiary Guarantors shall be deemed to have furnished the reports to the Trustee and the Holders of Securities as required by this Section 3.2 if (di) it has filed such reports with the SEC via the ▇▇▇▇▇ filing system (or any successor system) and such reports are publicly available or (ii) it has posted such reports on its website. Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s 's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s Company's compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ ' Certificates). The Trustee shall have no duty to search for or obtain any electronic or other filings that the Company makes with the SEC or posts on any website, regardless of whether such filings are periodic, supplemental or otherwise.
Appears in 1 contract
Sources: Indenture (Brunswick Corp)
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall file with the SEC (subject to the next sentence) and provide the Trustee and Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided at the times specified for the filings of such reports under such Sections (after giving effect to all applicable extensions and cure periods) and containing all the information, audit reports and exhibits required for such reports. If, at any time, the Company is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall provide the Trustee and Holders with such reports within the time periods specified in such Exchange Act sections for a registrant that is not an accelerated filer or a large accelerated filer; provided, however, that
(i) no certifications or attestations concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required (provided further, however, that nothing contained in the terms herein shall otherwise require the Company to comply with the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 at any time when it would not otherwise be subject to such statute);
(ii) the financial statements required of acquired businesses shall be limited to the financial statements (in whatever form) that the Company receives in connection with the applicable acquisition, whether or not audited;
(iii) no financial statements of unconsolidated entities shall be required;
(iv) no financial schedules specified in Regulation S-X under the Securities Act shall be required;
(v) the Company may limit the information disclosed in such reports in respect of Item 402 of Regulation S-K under the Securities Act to the information identified in Item 402 that is included other than through incorporation by reference in the Offering Memorandum (which disclosure regarding such types of information shall be presented in a manner consistent in all material respects with the disclosure so contained in the Offering Memorandum);
(vi) compliance with the requirements of Item 10(e) of Regulation S-K and Regulation G under the Securities Act shall not be required (but the Company shall provide a reconciliation to any non-GAAP financial measures as defined in Regulation G under the Securities Act);
(vii) information specified in Rules 3-10 and 3-16 of Regulation S-X under the Securities Act with respect to Subsidiaries and affiliates shall not be required; and
(viii) no exhibits pursuant to Item 601 of Regulation S-K under the Securities Act (other than in respect of instruments defining the rights of security holders to the extent such instruments would be required to be filed by paragraph (b)(4) of such Item 601 and material contracts to the extent such contracts would be required to be filed by paragraph (b)(10) of such Item 601) shall be required; provided, however, that contracts required to be filed only by either or both of paragraph (b)(10)(ii)(A) and paragraph (b)(10)(iii) of such Item 601 shall not be required. References in the immediately-preceding clauses (i) through (viii) to statutory or regulatory provisions include any successor provisions. Notwithstanding anything to the contrary, so long as the Company is a consolidated Subsidiary of a direct or indirect parent company for financial reporting purposes, the reports and other information required to be filed, provided or furnished pursuant to the first paragraph of this Section 4.02(a) may, at the option of the Company, be those of such parent company, rather than those of the Company, and, if the Company so elects in any such case, may be filed, provided or furnished by such parent company; provided that financial information of such parent company so filed, provided or furnished include a reasonable explanation of the material differences (if any) between the information relating to such parent company, on the one hand, and the information relating to the Company and its consolidated Subsidiaries on a standalone basis, on the other hand.
(b) For so long as any Notes remain outstanding and constitute “restricted securities” as defined in Rule 144 under the Securities Act, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors shall furnish to the Holders and to prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) For so long as the Company (or parent company, as applicable) files the foregoing reports and other information with the SEC, the Company shall be deemed to have provided to the Trustee and Holders all of the foregoing reports and other information if the Company (or parent company, as applicable) has filed or furnished such reports and other information with the SEC via the ▇▇▇▇▇ filing system or any successor electronic filing system and such reports are publicly available. For the administrative convenience of the Trustee, the Company shall send an electronic copy of each such filing to the Trustee at such e-mail address as the Trustee may specify from time to time in accordance with the notice provisions of this Indenture; provided, however, that failure to send any such electronic copies will not constitute a Default or Event of Default.
(d) To the extent that any report or other information is not filed, provided or furnished within the time periods specified in this Section 4.02 and such report or other information is subsequently filed, provided or furnished, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto will be deemed to have been cured.
(e) Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only only, and the Trustee’s receipt of such thereof shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder under this Indenture (as to which the Trustee will be is entitled to rely exclusively certificates). The Trustee shall not be obligated to monitor or confirm, on Officers’ Certificates)a continuing basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other documents filed with the SEC or ▇▇▇▇▇ or any website under this Indenture, or participate in any conference calls.
Appears in 1 contract
Sources: Indenture (Pra Group Inc)
SEC Reports. (a) On and after Notwithstanding that the Escrow Release Date, whether or Company may not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Issuer shall furnish Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Company is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. The Company will also, within 15 days after the date on which the Company was so required to file or would be so required to file if the Company were so subject, transmit by mail to all Holders, as their names and addresses appear in the Note Register, and to the Holders Trustee (or make available on a Company website) copies of any such information, documents and reports (without exhibits) so required to prospective investorsbe filed. Notwithstanding the foregoing, upon the requests of such Holders, if any audited or reviewed financial statements or information required to be delivered included in any such filing are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to Rule 144A(d)(4the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information, provided that (a) the Company shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the “Reporting Date”) and (b) if the Company makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Company will be deemed to have satisfied the requirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company is not required to file such reports, documents and information separately under the Securities Act.
applicable rules and regulations of the SEC (dafter giving effect to any exemptive relief) because of the filings by such Parent. The Trustee shall have no responsibility or liability whatsoever for determining whether or not such filings have occurred. Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ Officer’s Certificates). So long as any Notes are outstanding, the Company or Parent will (1) not later than ten Business Days after filing or furnishing a copy of the Company’s or Parent’s annual or quarterly report with the SEC or the Trustee, hold a conference call to discuss the results of operations for the relevant reporting period, with the opportunity to ask questions of management (the Company may satisfy the requirements of this clause (1) by holding the required conference call within the time period required by this clause (1) as part of any earnings call of the Company or Parent) and (2) issue a press release to an internationally recognized wire service prior to the date of the conference call required to be held in accordance with this paragraph, announcing the time and date of such conference call and either including all information necessary to access the call or directing Holders, prospective investors, broker-dealers and securities analysts to contact the appropriate person at the Company or Parent.
Appears in 1 contract
SEC Reports. (a) On Since January 1, 2013 (the “Reference Date”), the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, including any amendments or supplements thereto, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required, including any amendments or supplements thereto (all such forms, reports, schedules, statements and documents, as amended or supplemented, filed or furnished since the Reference Date, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q and 10-K if at or prior to the Issuer were required to file such reports; and
(2) all current reports Effective Time that would be are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, in all material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer on Exchange Act, as the SEC’s case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy Act, each as in effect on the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionSince the Reference Date, at neither the Company nor any time on and after of its Subsidiaries has received from the Escrow Release Date when SEC or any other Governmental Authority any written comments or questions with respect to any of the Issuer is not subject SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the reporting requirements of Section 13 or 15(d) knowledge of the Exchange ActCompany, there is not, as of the Issuer shall furnish to the Holders and to prospective investors, upon the requests date of such Holdersthis Agreement, any information required to be delivered pursuant to Rule 144A(d)(4) under investigation or review being conducted by the Securities ActSEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein), except in each case for such comments, questions, notices, investigations or reviews which have been fully resolved.
(d) Delivery None of the Company’s Subsidiaries is required to file any forms, reports, information schedules, statements or other documents with the SEC.
(e) Since the Reference Date, no executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, except as disclosed in certifications filed with the SEC Reports, and documents to at the Trustee will be for informational purposes only time of filing or submission of each such certification, such certification was true and accurate and complied with the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Since the Reference Date, including neither the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received notice from any Governmental Authority challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
SEC Reports. (a) On News Corporation, which has Securities registered under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), shall file with the SEC and with the Trustee, within 15 days after it files the Escrow Release Datesame with the SEC, whether copies of its annual and quarterly reports, information, documents and other reports, (or not required copies of such portions of any of the foregoing as the SEC may by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1prescribe) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were which News Corporation is required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if SEC. Such information shall include annual and quarterly financial statements and notes thereto, in each case presented in all material respects in accordance with GAAP as applied in the Issuer were required to file such reports; provided that the electronic filing United States, together with a management's discussion and analysis of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) financial condition and results of operations. Such financial statements shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified prepared substantially in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports accordance with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)under the Act, or as applied to provide separate financial statements U.S. Persons with respect to annual and quarterly statements, as applicable, provided however, that supplemental information for the Guarantor need not be provided. The management's discussion and analysis of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations shall be prepared substantially in accordance with Regulation S-K and the financial information contained therein shall be substantially in accordance with GAAP as applied in the United States. In the event that News Corporation is at any time no longer subject to the reporting requirements of the Issuer Exchange Act, it shall provide to the Trustee, in accordance with the rules and its Restricted Subsidiaries separate regulations prescribed from time to time by the SEC, such reports which may be required pursuant to Section 13 of the Exchange Act. In such event, such reports shall be provided at the times that News Corporation would have been required to provide reports had it continued to have been subject to such reporting requirements. Such information shall include annual and quarterly financial statements and notes thereto, presented substantially in accordance with GAAP as applied in the United States, together with a management's discussion and analysis of financial condition and results of operations. Such financial statements shall be prepared substantially in accordance with Regulation S-X under the Act, as applied to U.S. Persons with respect to annual and quarterly statements, as applicable, provided, however, that supplemental information for the Guarantor need not be provided. The management's discussion and analysis of financial condition and results of operations shall be prepared substantially in accordance with Regulation S-K and the financial information contained therein shall be substantially in accordance with GAAP as applied in the United States. NAI and the Guarantor also shall comply with the other provisions of TIA Section 314(a) to the Unrestricted Subsidiaries extent applicable.
(b) NAI shall, at its expense, transmit to Holders of Securities within 30 days after the Issuerfiling thereof with the Trustee such summaries of any information, documents and reports required to be filed by News Corporation pursuant to subsection (a) as may be required to be transmitted to such Holders by the rules and regulations prescribed from time to time by the SEC.
(c) In additionNews Corporation intends to file the reports referred to in Section 9.02(a) and (b) hereof with the SEC in electronic form pursuant to Regulation S-T of the SEC using the SEC's Electronic Data Gathering, at Analysis and Retrieval system. Compliance with the foregoing, or any time on and after successor electronic system approved by the Escrow Release Date when the Issuer is not subject SEC, shall constitute delivery by NAI of such reports to the reporting requirements Trustee and Holders in compliance with the provision of Section 13 9.02 and TIA Section 314(a). Notwithstanding anything to the contrary herein, the Trustee shall have no duty to search for or 15(d) obtain any electronic or other filings that News Corporation makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will pursuant to this Section 9.02(c) shall be solely for informational the purposes only of compliance with this Section 9.02 and the with TIA Section 314(a). The Trustee’s 's receipt of such reports, information and documents shall not constitute constructive notice to it of the content thereof or of any information contained therein or matter determinable from information contained thereinthe content thereof (and the Trustee shall not have any duty to ascertain or inquire as to such content or matter), including the Issuer’s NAI's compliance with any of its covenants hereunder (hereunder, as to which the Trustee will be is conclusively entitled to rely exclusively on Officers’ upon Officer's Certificates).
Appears in 1 contract
Sources: Indenture (News Corp)
SEC Reports. (a) On SyntheMed has on a timely basis filed all forms, reports and after documents required to be filed by it with the Escrow Release DateSEC since January 1, whether 2009 (such documents, as supplemented or amended since the time of filing, the “SyntheMed SEC Reports”). The SyntheMed SEC Reports (i) were or will be prepared in accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and, to the extent then applicable, SOX, including in each case, the rules and regulations thereunder and (ii) except to the extent that information contained in any SyntheMed SEC Reports has been revised, modified or superseded (prior to the date of this Agreement) by a later filed SyntheMed SEC Report, did not at the time they were filed with the SEC, or will not at the time they are filed with the SEC, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No Subsidiary of SyntheMed is or has been required to file any form, report, registration statement or other document with the SEC. SyntheMed maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act; and such controls and procedures are designed to ensure that all material information concerning SyntheMed and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of SyntheMed’s filings with the SEC and other public disclosure documents. As used in this Section 2.4, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. With respect to SyntheMed’s Annual Report on Form 10-K for each fiscal year of SyntheMed beginning on or after January 1, 2009 and SyntheMed’s Quarterly Reports on Form 10-Q for each of the first three fiscal quarters in each of such fiscal years of SyntheMed, all certifications and statements with respect thereto and required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of SOX, and the rules and regulations of the SECSEC promulgated thereunder, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s complied with such rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q statements contained in such certifications statements were true and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing correct as of the foregoing reports by date of the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filerfiling thereof.”
(b) Notwithstanding anything Since January 1, 2009, neither SyntheMed nor any of its Subsidiaries or, to the contrarySyntheMed’s Knowledge, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 any Representative of Regulation S-X (SyntheMed or any successor provision), of its Subsidiaries has received or to provide separate financial statements has otherwise had or obtained knowledge of any Guarantor; provided that complaint, allegation, assertion or claim, whether written or oral, regarding the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that accounting or auditing practices, procedures, methodologies or methods of SyntheMed or any of the Issuer’s its Subsidiaries are Unrestricted or their internal control over financial reporting, including any complaint, allegation, assertion or claim that SyntheMed or any of its Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined has engaged in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements questionable accounting or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerauditing practices.
(c) In addition, at any time on The SyntheMed Corporations have implemented and after the Escrow Release Date when the Issuer is not subject to the maintain a system of internal control over financial reporting requirements of Section 13 or 15(d(as defined in Rules 13a-15(f) of and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including, without limitation, that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since January 1, 2009, (A) there have not been any changes in the SyntheMed Corporations’ internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, the Issuer shall furnish SyntheMed Corporations’ internal control over financial reporting; (B) all significant deficiencies and material weaknesses in the design or operation of the SyntheMed Corporations’ internal control over financial reporting which are reasonably likely to adversely affect the Holders SyntheMed Corporations’ ability to record, process, summarize and report financial information have been disclosed to prospective investorsSyntheMed’s outside auditors and the audit committee of SyntheMed’s board of directors, upon and (C) there has not been any fraud, whether or not material, that involves management or other employees who have a significant role in the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActSyntheMed Corporations’ internal control over financial reporting.
(d) Delivery of any reportsSyntheMed is, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained thereinsince January 1, including the Issuer’s 2009 has been, in compliance with any the applicable provisions of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)SOX.
Appears in 1 contract
Sources: Merger Agreement (SyntheMed, Inc.)
SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided Notwithstanding that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall Company may not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the extent permitted by the Exchange Act and the SEC, the Company will file or furnish with the SEC, and make available to the Trustee and the Holders of the Notes, the annual reports and to prospective investorsthe information, upon the requests documents and other reports (or copies of such Holdersportions of any of the foregoing as the SEC may by rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act within the time periods specified therein or in the relevant forms. In the event that the Company is not permitted to file such reports, documents and information with the SEC pursuant to the Exchange Act or any rule, regulation, interpretation or action of the SEC, the Company will nevertheless make available such Exchange Act information to the Trustee and Holders of Notes as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified therein. If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, or if the Company’s consolidated financial statements consolidate any Physician Groups that are not Restricted Subsidiaries, and if such Unrestricted Subsidiaries and Physician Groups that are not Restricted Subsidiaries would, in the aggregate and calculated as of the last day of the applicable fiscal quarter or fiscal year, as the case may be, constitute a Significant Subsidiary, then the quarterly report on Form 10-Q or annual report on Form 10-K (or any applicable successor forms) for such fiscal quarter or fiscal year, as the case may be, required by the preceding paragraph shall include a reasonably detailed presentation or, in the case of clause (b) below, a summary, (a) in the footnotes to the consolidated financial statements and (b) in Management’s Discussion and Analysis of Results of Operations and Financial Condition, of the consolidated financial condition and results of operations of the Company and its consolidated subsidiaries, excluding any such Unrestricted Subsidiaries and without consolidating any such Physician Groups that are not Restricted Subsidiaries (it being understood that information comparable to that appearing under the caption “Risk Factors—Risks Relating to Investment in the Notes–Our consolidated financial statements include the results of certain physician groups that are not owned by the Company and will not guarantee the notes” in the Company’s prospectus supplement dated June [ ], 2014 relating to the original issuance of the Notes on the Issue Date will be deemed to satisfy the requirements of this clause (b), provided that, for purposes of this clause (b), such information shall be provided for the three, six or nine month period of the then current fiscal year covered by such Form 10-Q (it being understood that no such information need be provided for any three month period within any such six or nine month period) or the most recent fiscal year covered by such Form 10-K, as the case may be). The quarterly and annual financial information required to be delivered pursuant to Rule 144A(d)(4by the preceding sentence shall reflect the adjustments necessary so that any Unrestricted Subsidiaries and any Physician Groups that are not Restricted Subsidiaries (and any Subsidiaries of such Unrestricted Subsidiaries and such Physician Groups) are not consolidated in the Company’s financial statements (it being understood that the Company’s direct or indirect equity interest in and share of the revenues, operating income, net income or similar operating results of any such Person that is accounted for under the Securities Act.
equity method, and any management fees or other amounts payable to the Company or any of its Restricted Subsidiaries by any such Physician Group that is not a Restricted Subsidiary, may be reflected in such consolidated financial information; and it being further understood that all such adjustments may appear in the notes to the financial statements and need not be made or reflected in the financial statements themselves). Anything in this paragraph to the contrary notwithstanding, the Company may, if it so elects, provide the information required by this paragraph in a current report on Form 8-K (dor any applicable successor form) filed substantially concurrently with the applicable Form 10-Q or 10-K, as the case may be. For purposes of this Section 4.18, the Company and the Subsidiary Guarantors will be deemed to have furnished the reports to the Trustee and the Holders of Notes as required by this Section 4.18 if they have filed or furnished such reports with the SEC via the ▇▇▇▇▇ (or successor or similar) filing system and such reports are publicly available. Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Sources: Indenture (Southwest Atlanta Dialysis Centers, LLC)
SEC Reports. The Company and its Subsidiaries have timely filed with the SEC (a) On and after including following any extensions of time for filing provided by Rule 12b-25 promulgated under the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1Exchange Act) all quarterly forms, reports, schedules, statements and annual reports that would be other documents required to be filed by the Company or its Subsidiaries with the SEC on Forms 10-Q (collectively, the “Company SEC Reports”) since September 30, 2009. Except to the extent corrected by subsequent Company SEC Reports filed prior to the date hereof, such Company SEC Reports (a) complied, and 10-K each of the Company SEC Reports filed subsequent to the date of this Agreement will comply, in all material respects with the applicable requirements of the Securities Act of 1933 (the “Securities Act”), the Exchange Act and other applicable Laws, including the applicable rules and regulations promulgated thereunder and (b) did not, at the time they were filed, or if amended or restated, at the Issuer time of such later amendment or restatement, and each of the Company SEC Reports filed subsequent to the date of this Agreement will not, contain any untrue statement of any material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which such statements were made, not misleading. Other than WMG Holdings Corp. and WMG Acquisition Corp., no Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file such any periodic forms, reports; and
(2) all current reports that would be required to be filed , schedules, statements or other documents with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing SEC. As of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (date hereof, there are no outstanding or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, unresolved comments in comment letters from the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required staff with respect to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and Company SEC Reports. To the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% Knowledge of the Issuer’s corresponding consolidated amountCompany, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face as of the financial statements or in the footnotes theretodate hereof, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant none of the financial condition and results Company SEC Reports is the subject of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerongoing SEC review, outstanding SEC comment or outstanding SEC investigation.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On The Company has timely filed with the U.S. Securities and after Exchange Commission (the Escrow Release Date, whether or not required by "SEC") under the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) Exchange Act all quarterly and annual reports that would be documents required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holderunder Sections 13, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 14 or 15(d) of the Exchange ActAct since December 31, 1997. Prior to each Closing Date, the Issuer Company shall furnish have previously delivered to the Holders Purchaser (a) each Annual Report on Form 10-K of the Company filed with the SEC since December 31, 1998 (the Annual Report on Form 10-K most recently filed prior to a given Closing Date is referred to herein as the "COMPANY 10-K" relating to such Closing Date), (b) all proxy statements relating to the Company's meetings of stockholders held since December 31, 1998 and (c) all other documents filed by the Company with the SEC since December 31, 1998, in each case as filed with the SEC (collectively, the "COMPANY SEC REPORTS"). As of their respective dates, such documents complied in all material respects with applicable SEC requirements and did not contain any untrue statement of a material fact or omit to prospective investors, upon the requests of such Holders, any information state a material fact required to be delivered pursuant stated therein or necessary to Rule 144A(d)(4) make the statements therein, in light of the circumstances under the Securities Actwhich they were made, not misleading.
(db) Delivery Neither the Company nor any Subsidiary of the Company, if any, is a party to or bound by, and neither they nor their properties are subject to, any reportscontract or other agreement, information or any amendment thereto, required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the Company which is not disclosed in the Company SEC Reports. Except as disclosed in the Company SEC Reports or as disclosed on Schedule 3.5(b) attached hereto, all of such contracts and documents other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable subsidiary of the Company, if any, and, to the Trustee will be for informational purposes only best knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Trustee’s receipt Company or the applicable subsidiary of such shall the Company, if any, have paid in full or accrued all amounts now due from them thereunder, and have satisfied in full or provided for their liabilities and obligations thereunder which are presently required to be satisfied or provided for and are not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with in default under any of its covenants hereunder (as them, nor, to the best knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, other than any such breaches or defaults which would not, either individually or in the Trustee will be entitled aggregate, have a Material Adverse Effect. True and complete copies of all of the contracts and other agreements referred to rely exclusively on Officers’ Certificates)in this Section 3.5 have been provided previously to the Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Focal Inc)
SEC Reports. The Company’s Form 10-K for the fiscal year ended March 31, 2015 was due to the U.S. Securities and Exchange Commission on June 29, 2015 and was not filed. As a result, there is limited information about the Company available about the financial results of operations, or otherwise, for periods subsequent to the filing and periods presented in its Form 10-Q for the period ended December 31, 2014. Other than as described herein or in the Memorandum, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act of 1933, as amended (athe “Securities Act”) On and after the Escrow Release DateSecurities Exchange Act of 1934, whether or not required by as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) and when filed, each SEC Report was in compliance in all material respects with the requirements of the SEC, so long as any Notes are outstandingits report form, the Issuer will furnish to Exchange Act and the Trustee andSecurities Act. All proxy statements, upon written requestreports, the Holdersregistration statements, within the time periods specified in the SEC’s rules schedules, forms and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be other documents required to be filed with the SEC on Forms 10-Q by the Company under the Exchange Act and 10-K the Securities Act after the date hereof through the relevant Closing Date will, if and when filed, be in compliance in all material respects with the Issuer were required requirements of its respective report form, the Exchange Act and the Securities Act and will not, at the time they are filed or declared effective, contain any untrue statement of a material fact or omit to file such reports; and
(2) all current reports that would be state a material fact required to be filed with stated therein or necessary to make the SEC on Form 8-K if statements therein, in light of the Issuer were required circumstances under which they are made, not misleading; provided, however, that any failure by the Company to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee proxy statement, report, registration statement, schedule, form and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and other documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice a breach of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)this Section 7.
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall furnish file with the SEC (subject to the next sentence) and provide the Trustee and Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to prospective investorsa U.S. corporation subject to such Sections, upon such reports to be so filed and provided at the requests times specified for the filings of such Holdersreports under such Sections (after giving effect to all applicable extensions and cure periods) and containing all the information, audit reports and exhibits required for such reports. If, at any time, the Company is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall provide the Trustee and Holders with such reports within the time periods specified in such Exchange Act sections for a registrant that is not an accelerated filer or a large accelerated filer; provided, however, that
(i) no certifications or attestations concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required (provided further, however, that nothing contained in the terms herein shall otherwise require the Company to comply with the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 at any time when it would not otherwise be subject to such statute);
(ii) the financial statements required of acquired businesses shall be limited to the financial statements (in whatever form) that the Company receives in connection with the applicable acquisition, whether or not audited;
(iii) no financial statements of unconsolidated entities shall be required;
(iv) no financial schedules specified in Regulation S-X under the Securities Act shall be required;
(v) the Company may limit the information disclosed in such reports in respect of Item 402 of Regulation S-K under the Securities Act to the information identified in Item 402 that is included other than through incorporation by reference in the Offering Memorandum (which disclosure regarding such types of information shall be presented in a manner consistent in all material respects with the disclosure so contained in the Offering Memorandum);
(vi) compliance with the requirements of Item 10(e) of Regulation S-K and Regulation G under the Securities Act shall not be required (but the Company shall provide a reconciliation to any non-GAAP financial measures as defined in Regulation G under the Securities Act);
(vii) information specified in Rules 3-10 and 3-16 of Regulation S-X under the Securities Act with respect to Subsidiaries and affiliates shall not be required; and
(viii) no exhibits pursuant to Item 601 of Regulation S-K under the Securities Act (other than in respect of instruments defining the rights of security holders to the extent such instruments would be required to be filed by paragraph (b)(4) of such Item 601 and material contracts to the extent such contracts would be required to be filed by paragraph (b)(10) of such Item 601) shall be required; provided, however, that contracts required to be filed only by either or both of paragraph (b)(10)(ii)(A) and paragraph (b)(10)(iii) of such Item 601 shall not be required. References in the immediately-preceding clauses (i) through (viii) to statutory or regulatory provisions include any successor provisions. Notwithstanding anything to the contrary, so long as the Company is a consolidated Subsidiary of a direct or indirect parent company for financial reporting purposes, the reports and other information required to be delivered filed, provided or furnished pursuant to Rule 144A(d)(4the first paragraph of this Section 4.02(a) under may, at the Securities Act.
option of the Company, be those of such parent company, rather than those of the Company, and, if the Company so elects in any such case, may be filed, provided or furnished by such parent company; provided that financial information of such parent company so filed, provided or furnished include a reasonable explanation of the material differences (dif any) Delivery of any reportsbetween the information relating to such parent company, on the one hand, and the information and documents relating to the Trustee will be for informational purposes only Company and its consolidated Subsidiaries on a standalone basis, on the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)other hand.
Appears in 1 contract
Sources: Indenture (Pra Group Inc)
SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the The Issuer will furnish to file with the Trustee andSEC all information, upon written request, the Holders, within the time periods specified in the SEC’s rules documents and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, whether or not the Issuer is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act; provided, however, that the Issuer shall furnish not be required to make any such filings prior to the Holders and to prospective investorsdate on which the Issuer's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, upon the requests of such Holders, any information 1999 would have been required to be filed, if, at the time such filings would have been required to be made with the SEC, either (i) the Issuer shall have provided to each Holder of the Notes the information that would have been required to be filed or (ii) the Exchange Registration Statement (as such term is defined in the Registration Rights Agreement) has been filed with the SEC but has not yet been declared effective and copies of the Exchange Offer Registration Statement and any amendments thereto (to the extent such Registration Statement and/or amendments contain additional information not disclosed in the Offering Memorandum that would have been the subject of a filing required to be made under Section 13 or 15(d) of the Exchange Act) have been provided to each Holder of the Notes, provided that any exhibits to the Exchange Registration Statement (or any amendments thereto) need not be delivered to any Holder of the Notes, but sufficient copies thereof shall be furnished to the Trustee as reasonably requested to permit the Trustee to deliver any such exhibits to any Holder of the Notes upon request. The Issuer (at its own expense) will file with the Trustee within 15 days after the Issuer files them with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Issuer files with the SEC pursuant to Rule 144A(d)(4Section 13 or 15(d) of the Exchange Act. Upon qualification of this Indenture under the Securities Act.
(d) TIA, the Issuer shall also comply with the provisions of TIA ss. 314(a). Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s 's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s 's compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ ' Certificates).
(b) At the Issuer's expense, regardless of whether the Issuer is required to furnish such reports and other information referred to in paragraph (a) above to its equityholders pursuant to the Exchange Act, the Issuer shall cause such reports and other information to be mailed to the Holders at their addresses appearing in the register of Notes maintained by the Registrar within 15 days after they file them with the SEC.
(c) The Issuer shall, upon request, provide to any Holder of Notes or any prospective transferee of any such Holder any information concerning the Issuer (including financial statements) necessary in order to permit such Holder to sell or transfer Notes in compliance with Rule 144A under the Securities Act; provided, however, that the Issuer shall not be required to furnish such information in connection with any request made on or after the date which is two years from the later of (i) the date such Note (or any predecessor Note) was acquired from the Issuer or (ii) the date such Note (or any predecessor Note) was last acquired from an "affiliate" of the Issuer within the meaning of Rule 144 under the Securities Act.
Appears in 1 contract
Sources: Indenture (United Industries Corp)
SEC Reports. Since January 1, 2010, the Company has timely filed or furnished (aas applicable) On all forms, reports and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under applicable Law prior to the date hereof, and, after the Escrow Release Datedate of this Agreement and until the Acceptance Time, the Company will timely file or furnish (as applicable) all forms, reports and documents with the SEC that are required to be filed or furnished (as applicable) by it under applicable Law (all such forms, reports and documents, together with any other forms, reports or other documents filed or furnished (as applicable) by the Company with the SEC on or prior to the Expiration Date that are not required to be so filed or furnished, the “SEC Reports”). Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (the “▇▇▇▇-▇▇▇▇▇ Act”), each as in effect on the date such SEC Report was, or will be, filed. True, correct and complete copies of all SEC Reports filed prior to the date hereof, whether or not required by under applicable Law, have been made available to Parent or are publicly available in the rules Electronic Data Gathering, Analysis and regulations Retrieval (▇▇▇▇▇) database of the SEC. As of its filing date (or, so long as any Notes are outstanding, the Issuer will furnish if amended or superseded by a filing prior to the Trustee anddate of this Agreement, upon written requeston the date of such amended or superseded filing), each SEC Report did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the Holdersstatements made therein, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
light of the circumstances under which they were made, not misleading. Neither the Company nor any Subsidiary has received from the SEC or any other Governmental Authority any unresolved written comments or questions with respect to any of the SEC Reports (1including the financial statements included therein) all quarterly and annual reports that would be required to be or any registration statement filed by any of them with the SEC on Forms 10-Q and 10-K if or any notice from the Issuer were SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the Company, there is not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein), the Company, the Company’s executive officers or the Company’s Board of Directors. None of the Company’s Subsidiaries are required to file such reports; and
(2) all current any forms, reports that would be required to be filed or other documents with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing SEC. No executive officer of the foregoing reports by Company has failed to make the Issuer on certifications required of him or her under Section 302 or 906 of the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or Act with respect to any successor system) shall be deemed to satisfy SEC Report. Neither the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received notice from any Governmental Authority challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations Company is subject to the reporting requirements of Section 13 or 15(d) of the SEC, so long as any Notes are outstandingExchange Act, the Issuer Company will furnish file with the SEC (subject to the next sentence) and provide the Trustee andand Noteholders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, upon written requestsuch reports to be so filed and provided at the times specified for the filings of such reports under such Sections and containing all the information, audit reports and exhibits required for such reports. If at any time, the HoldersCompany is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in the preceding sentence with the SEC within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with unless the SEC on Forms 10-Q and 10-K if will not accept such a filing. The Company agrees that it will not take any action for the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with purpose of causing the SEC on Form 8-K if the Issuer were required not to file accept any such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been madefilings. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer Company will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer Company were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) aboveSEC. At any time that any of the Issuer’s Company's Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSubsidiaries, then the quarterly and annual financial information required by Section 4.02
(a) the preceding paragraph will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “"Management’s 's Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant ," of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Company. In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall Company will furnish to the Holders of the Notes and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(d) . Delivery of any such reports, information information, and documents to the Trustee will be pursuant to the provisions of this Section 4.02 is for informational purposes only and the Trustee’s 's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s Company's compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ ' Certificates).
Appears in 1 contract
Sources: Indenture (Glatfelter P H Co)
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) On and after of the Escrow Release DateExchange Act, whether or not required to the extent permitted by the rules and regulations of Exchange Act, the Company will file with the SEC, so long as any Notes are outstanding, the Issuer will furnish and make available to the Trustee and, upon written request, and the Holders, within registered Holders of the time periods specified in the SEC’s rules and regulations for non-accelerated filersSecurities:
(1) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reportsForms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required to file such reports. In the event that the Company is not permitted to file such reports, documents and information with the SEC pursuant to the Exchange Act, the Company will nevertheless make available such Exchange Act information to the Trustee and the Holders of the Securities as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a) in the case of quarterly reports, within 15 days after the time period specified in the SEC’s rules and regulations and (b) in the case of annual reports, within 30 days after the time period specified in the SEC’s rules and regulations; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee Company shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those furnish any information, certifications or reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 required by Items 307 or Rule 3-16 308 of Regulation S-X (K prior to the commencement of the Exchange Offer or any successor provision), or to provide separate financial statements the effectiveness of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with Shelf Registration Statement. If the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that Company has designated any of the Issuer’s its Subsidiaries are as Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSubsidiaries, then the quarterly and annual financial information required by Section 4.02
(a) will the preceding paragraph shall include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, to the financial statements and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant , of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Subsidiaries. In addition, at any time on the Company and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish Guarantors have agreed that they will make available to the Holders and to prospective investors, upon the requests request of such Holders, any the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable under the Securities Act.
(d) Delivery . For purposes of any reportsthis Section 3.12, information the Company and documents the Note Guarantors will be deemed to have furnished the reports to the Trustee will be for informational purposes only and the Trustee’s receipt Holders of Securities as required by this Section 3.12 if it has filed such reports with the SEC via the ▇▇▇▇▇ filing system and such reports are publicly available. The filing requirements set forth above for the applicable period shall be deemed satisfied by the Company prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by the filing with the SEC of the exchange offer registration statement and/or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act; provided that this paragraph shall not constitute constructive notice supersede or in any manner suspend or delay the Company’s reporting obligations set forth in the first three paragraphs of this Section 3.12. The Parent may satisfy the obligations of the Company set forth above; provided that (x) the financial information filed with the SEC or delivered to Holders pursuant to this covenant should include consolidating financial statements for the Parent, the Company, the Subsidiary Guarantors and the Subsidiaries that are not Subsidiary Guarantors in the form prescribed by the SEC and (y) the Parent is not engaged in any information contained therein business in any material respect other than incidental to its ownership, directly or determinable from information contained thereinindirectly, including of the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)Company.
Appears in 1 contract
Sources: Indenture (Libbey Inc)
SEC Reports. (a) On Since December 31, 2015, Acquiror has filed all forms, reports and after documents with the Escrow Release DateSEC that have been required to be filed by it under Applicable Law prior to the date hereof (all such forms, whether reports and documents, together with all exhibits and schedules 45
(b) As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of the last such amendment or superseding filing) or submission date, as the case may be (i) each SEC Report complied as to form, in all material respects, with the applicable requirements of the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, or any successor statute, rules or regulations thereto (“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and the ▇▇▇▇-▇▇▇▇▇ Act of 2010, as the case may be, and the applicable rules and regulations promulgated thereunder, each as in effect on the date such SEC Report was filed, and (ii) each SEC Report did not contain any untrue statement of a material fact or omit to state any material fact required by to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, to the knowledge of Acquiror, none of the SEC Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. No executive officer of Acquiror has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report. Neither Acquiror nor, to the knowledge of Acquiror, any of its Representatives, has received notice from any Governmental Body challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. Except as previously disclosed in the SEC Reports since the enactment of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, Acquiror and, to the Knowledge of Acquiror, each of its officers and directors, have been and are in compliance, in all material respects, with (A) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations promulgated thereunder and (B) the applicable listing and corporate governance rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the IssuerNASDAQ Global Select Market.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) As of the Exchange Actdate of this Agreement, Acquiror is a “well known seasoned issuer” as defined in Rule 405 promulgated by the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered SEC pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery . 5.11 Sufficiency of any reportsFunds. Acquiror has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Closing Cash Payment and consummate the Contemplated Transactions. Acquiror’s willingness to consummate the Contemplated Transactions is not conditioned, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall implicitly or otherwise, on financing not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).yet obtained. 46
Appears in 1 contract
Sources: Purchase Agreement (Kratos Defense & Security Solutions, Inc.)
SEC Reports. (a) On and after Notwithstanding that the Escrow Release Date, whether or Company may not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Issuer shall furnish Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Company is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. The Company will also, within 15 days after the date on which the Company was so required to file or would be so required to file if the Company were so subject, transmit by mail to all Holders, as their names and addresses appear in the Note Register, and to the Holders Trustee (or make available on a Company website) copies of any such information, documents and reports (without exhibits) so required to prospective investorsbe filed. Notwithstanding the foregoing, upon the requests of such Holders, if any audited or reviewed financial statements or information required to be delivered included in any such filing are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to Rule 144A(d)(4the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information, provided that (a) the Company shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the “Reporting Date”) and (b) if the Company makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Company will be deemed to have satisfied the requirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company is not required to file such reports, documents and information separately under the Securities Act.
applicable rules and regulations of the SEC (dafter giving effect to any exemptive relief) because of the filings by such Parent. The Company also will comply with the other provisions of TIA § 314(a). The Trustee shall have no responsibility or liability whatsoever for determining whether or not such filings have occurred. Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ Officer’s Certificates).
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall furnish file with the SEC (subject to the next sentence) and provide the Trustee and Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to prospective investorsa U.S. corporation subject to such Sections, upon such reports to be so filed and provided at the requests times specified for the filings of such Holdersreports under such Sections and containing all the information, audit reports and exhibits required for such reports. If, at any information time, the Company is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall provide the Trustee and Holders with such reports within the time periods specified in such Exchange Act sections for a registrant that is not an accelerated filer or a large accelerated filer; provided, however, that
(i) no certifications or attestations concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required to be delivered pursuant to Rule 144A(d)(4the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required (provided further, however, that nothing contained in the terms herein shall otherwise require the Company to comply with the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 at any time when it would not otherwise be subject to such statute);
(ii) the financial statements required of acquired businesses shall be limited to the financial statements (in whatever form) that the Company receives in connection with the applicable acquisition, whether or not audited;
(iii) no financial statements of unconsolidated entities shall be required;
(iv) no financial schedules specified in Regulation S-X under the Securities Act shall be required;
(v) the Company may limit the information disclosed in such reports in respect of Item 402 of Regulation S-K under the Securities Act to the information identified in Item 402 that is included other than through incorporation by reference in the Offering Memorandum (which disclosure regarding such types of information shall be presented in a manner consistent in all material respects with the disclosure so contained in the Offering Memorandum);
(vi) compliance with the requirements of Item 10(e) of Regulation S-K and Regulation G under the Securities Act shall not be required (but the Company shall provide a reconciliation to any non-GAAP financial measures as defined in Regulation G under the Securities Act.);
(dvii) Delivery information specified in Rules 3-10 and 3-16 of any reports, information Regulation S-X under the Securities Act with respect to Subsidiaries and documents affiliates shall not be required; and
(viii) no exhibits pursuant to Item 601 of Regulation S-K under the Securities Act (other than in respect of instruments defining the rights of security holders to the Trustee will extent such instruments would be for informational purposes only and the Trustee’s receipt required to be filed by paragraph (b)(4) of such Item 601 and material contracts to the extent such contracts would be required to be filed by paragraph (b)(10) of such Item 601) shall be required; provided, however, that contracts required to be filed only by either or both of paragraph (b)(10)(ii)(A) and paragraph (b)(10)(iii) of such Item 601 shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)required.
Appears in 1 contract
Sources: Indenture (Credit Acceptance Corp)
SEC Reports. Since December 31, 2012, the Company has filed or furnished (aas applicable) On all forms, reports and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under applicable Law, together with all certifications required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) prior to the date hereof, and, after the Escrow Release Datedate of this Agreement and until the Acceptance Time, the Company will timely file or furnish (as applicable) all forms, reports and documents with the SEC that are required to be filed or furnished (as applicable) by it under applicable Law (all such forms, reports and documents, together with any other forms, reports or other documents filed or furnished (as applicable) by the Company with the SEC on or prior to the Acceptance Time that are not required to be so filed or furnished (the “SEC Reports”)). Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form, in all material respects with the applicable requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, the Securities Act or the Exchange Act and the applicable rules and regulations of the SEC thereunder, as the case may be, each as in effect on the date such SEC Report was, or will be, filed. True, correct and complete copies of all SEC Reports filed prior to the date hereof, whether or not required by under applicable Law, have been made available to Parent or are publicly available in the rules Electronic Data Gathering, Analysis and regulations Retrieval (▇▇▇▇▇) database of the SEC. As of its filing date, so long as each SEC Report did not and will not contain any Notes untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of the date of this Agreement, there are outstanding, no outstanding or unresolved comments in comment letters received from the Issuer will furnish SEC with respect to the Trustee andSEC Reports. To the Knowledge of the Company, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with none of the SEC on Forms 10-Q Reports is the subject of ongoing SEC review and 10-K if there are no inquiries or investigations by the Issuer were SEC or any internal investigations pending or threatened, in each case regarding any accounting practices of the Company. None of the Company’s Subsidiaries is required to file such reports; and
(2) all current any forms, reports that would be required to be filed or other documents with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing SEC. No executive officer of the foregoing reports by Company has failed to make the Issuer on certifications required of him or her under Section 302 or 906 of the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or Act with respect to any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filerReport.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Sources: Merger Agreement (Fx Energy Inc)
SEC Reports. (a) On Parent has filed or furnished all forms, reports and after documents with the Escrow Release DateSEC that have been required to be filed or furnished by it under applicable Laws since January 1, 2007 (all such forms, reports and documents, the “SEC Reports”). Each SEC Report (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseding filing) complied as of its filing date, in all material respects to the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”) or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the case may be, each as in effect on the date such SEC Report was filed. True and correct copies of all SEC Reports filed prior to the date hereof, whether or not required under applicable Legal Requirements, have been furnished to the Company or are publicly available in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the SEC. As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseding filing), each SEC Report did not, and in the case of such SEC Report filed by Parent with the SEC after the date of this Agreement and prior to the Effective Time, will not as of the time they are filed, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of the Subsidiaries of Parent is required to file any forms, reports, schedules, statements or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in the SEC Reports, including any SEC Reports filed after the date of this Agreement and prior to the Effective Time, complied or will comply, as of their respective dates, in all material respects with all applicable accounting requirements and the published rules and regulations of the SECSEC with respect thereto, so long was or will be prepared in accordance with GAAP (except as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified may be indicated in the SEC’s rules notes thereto) applied on a consistent basis throughout the periods involved and regulations fairly presented in all material respects or will fairly present in all material respects the consolidated financial position of Parent and its Subsidiaries as of the respective dates thereof and the consolidated results of its operations and cash flows for nonthe periods indicated, except that any unaudited interim financial statements are subject to normal and recurring year-accelerated filers:end adjustments which have not been and are not expected to be material in amount, individually or in the aggregate.
(1c) The chief executive officer and chief financial officer of Parent have made all quarterly certifications required by Sections 302 and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing 906 of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or Act, and the statements contained in any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee such certifications are complete and any Holdercorrect, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified and Parent is otherwise in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports material compliance with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any all applicable effective provisions of the Issuer’s Subsidiaries are Unrestricted Subsidiaries ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% applicable listing and corporate governance rules of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the IssuerNasdaq.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (Issuers or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant are subject to Section 4.02(a)(113(a) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or any successor provision thereto, the Issuer shall furnish Issuers and any Guarantors will, to the Holders extent accepted by the SEC and not prohibited under the Exchange Act, file with the SEC the annual reports, quarterly reports and other documents which the Issuers and any Guarantors would have been required to prospective investorsfile with the SEC pursuant to such Section 13(a) or 15(d) or any successor provision thereto if the Issuers or any Guarantor were subject thereto, upon such documents to be filed with the requests SEC on or prior to the respective dates (the "Required Filing Dates") by which the Issuers or any Guarantor would have been required to file them. The Issuers and any Guarantors will also, in any event, (i) within 15 days of each Required Filing Date (A) transmit by mail to all Holders, as their names and addresses appear in the security register, without cost to such Holders, and (B) file with the Trustee copies of the annual reports, quarterly reports and other documents which the Issuers and any Guarantors would have been required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act or any successor provisions thereto if the Issuers or any Guarantor were subject thereto and (ii) if filing such documents by the Issuers or any Guarantor with the SEC is not accepted by the SEC or is prohibited under the Exchange Act, promptly upon written request, supply copies of such documents to any prospective Holder.
(b) The Issuers will, upon request, provide to any Holder of Notes or any prospective transferee of any such Holder any information concerning the Issuers (including financial statements) necessary in order to permit such Holder to sell or transfer Notes in compliance with Rule 144A under the Securities Act; provided, however, that the Issuers shall not be required to be delivered pursuant to furnish such information in connection with any request made on or after the date which is three years from the later of (i) the date such Note (or any predecessor Note) was acquired from the Issuers or (ii) the date such Note (or any predecessor Note) was last acquired from an "affiliate" of the Issuers within the meaning of Rule 144A(d)(4) 144 under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On Since January 1, 2010, the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required (all such forms, reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q after January 1, 2010 and 10-K if at or prior to the Issuer were required to file such reports; and
(2) all current reports Effective Time that would be are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer on Exchange Act, as the SEC’s case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy Act, each as in effect on the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionAs of its filing date (or, at if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), each SEC Report did not, or will not, as the case may be, contain any time on and after untrue statement of a material fact or omit to state any material fact necessary in order to make the Escrow Release Date when statements made therein, in the Issuer light of the circumstances under which they were made, not misleading.
(d) Since January 1, 2010 through the date hereof, neither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Entity (i) any written comments that have not been resolved with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or (ii) any written notice that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the Company, there is not not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Entity of any SEC Reports (including the financial statements included therein).
(e) No Subsidiary of the Company is subject to the reporting requirements of Section 13 13(a) or Section 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(df) Delivery No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any reportsSEC Report, information and documents to except as disclosed in certifications filed with the Trustee will be for informational purposes only and SEC Reports. Since January 1, 2010, neither the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received any written notice from any Governmental Entity challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act, including without limitation pursuant to Section 13(a) or 15(d) thereof, since July 24, 2023 through the date hereof on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports (aas defined below) On prior to the expiration of any such extension. As of its respective filing date, (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), the reports of the Company filed with the Securities and after Exchange Commission (the Escrow Release Date“SEC”) pursuant to the Exchange Act from July 24, whether 2023 through the date of this Agreement (including the exhibits and schedules thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”) and the Exchange Act. As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each SEC Report filed pursuant to the Exchange Act did not required by contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Reports complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed SEC with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings respect thereto. Such financial statements have been made. Ifprepared in accordance with United States generally accepted accounting principles, notwithstanding consistently applied, during the foregoing, the SEC will not accept periods involved (except (i) as may be otherwise indicated in such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes thereto, or may be condensed or summary statements) and fairly present in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by all material respects the Issuer pursuant to this covenant consolidated financial position of the financial condition Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In additionunaudited statements, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificatesnormal year-end audit adjustments).
Appears in 1 contract
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SECExchange Act, so long as any Notes Securities are outstanding, the Issuer will Company shall furnish to the Trustee and, upon written request, for delivery to the Holders, within the time periods specified in the SEC’s 's rules and regulations for non-accelerated filers:(including any grace periods or extensions permitted by the SEC):
(1) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reportsthese forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" (which will include a statement as to the amount of Consolidated Cash Flow for the applicable periods) and, with respect to the annual information only, a report on the annual financial statements by the Company's certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required to file such these reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any Unrestricted Subsidiaries represent 5% or more of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% total assets of the Issuer’s corresponding consolidated amountCompany, then the quarterly and annual financial information required by Section 4.02
(a) the preceding sentence will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Company. In addition, at any time on whether or not required by the SEC, the Company shall file a copy of all of the information and after the Escrow Release Date when the Issuer is not subject reports referred to the reporting requirements of Section 13 or 15(din clauses (1) and (2) of the Exchange Actfirst sentence of this Section 4.02 with the SEC for public availability within the time periods specified in the SEC's rules and regulations (unless the SEC will not accept the filing) and make the information available to securities analysts and prospective investors upon request. The Company and the Subsidiary Guarantors agree that, for so long as any Securities remain outstanding, the Issuer Company shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the 42 Securities Act.
(d) Delivery . The Company also shall comply with the other provisions of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ CertificatesTIA ss. 314(a).
Appears in 1 contract
Sources: Indenture (Pathmark Stores Inc)
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SECExchange Act, the Company shall file with the SEC (to the extent the SEC will accept such filings) and provide the Trustee and Noteholders with such annual reports and such information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents and other reports to be so filed and provided at the times specified for the filings of such information, documents and reports under such Sections; provided, however, that so long as Parent is a Guarantor of the Notes and complies with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any Notes are outstandingsuccessor provision), the Issuer will furnish to the Trustee andreports, upon written request, the Holders, within the time periods specified in the SEC’s rules information and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be other documents required to be filed with and provided as described hereunder may, at the Company’s option, be filed by and be those of Parent rather than the Company. Additionally, the Company agrees that it shall not take any action for the purpose of causing the SEC on Forms 10-Q and 10-K if the Issuer were required not to file accept any such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been madefilings. If, notwithstanding the foregoing, the SEC will not accept such the Company’s filings for any reason, the Issuer will Company shall post the reports specified reports, information and documents referred to in the preceding sentence this paragraph on its website within the time periods that would apply if the Issuer Company were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) aboveSEC. At any time that any of the IssuerCompany’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSubsidiaries, then the quarterly and annual financial information required by Section 4.02
(a) will the preceding paragraphs shall include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Company. In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall furnish to the Holders of the Notes and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Sources: Indenture (Reddy Ice Holdings Inc)
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall file with the SEC (subject to the next sentence) and provide the Trustee and Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided at the times specified for the filings of such reports under such Sections and containing all the information, audit reports and exhibits required for such reports. If, at any time, the Company is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall provide the Trustee and Holders with such reports within the time periods specified in such Exchange Act sections for a registrant that is not an accelerated filer or a large accelerated filer; provided, however, that
(i) no certifications or attestations concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required (provided further, however, that nothing contained in the terms herein shall otherwise require the Company to comply with the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 at any time when it would not otherwise be subject to such statute);
(ii) the financial statements required of acquired businesses shall be limited to the financial statements (in whatever form) that the Company receives in connection with the applicable acquisition, whether or not audited;
(iii) no financial statements of unconsolidated entities shall be required;
(iv) no financial schedules specified in Regulation S-X under the Securities Act shall be required;
(v) the Company may limit the information disclosed in such reports in respect of Item 402 of Regulation S-K under the Securities Act to the information identified in Item 402 that is included other than through incorporation by reference in this offering circular (which disclosure regarding such types of information shall be presented in a manner consistent in all material respects with the disclosure so contained in this offering circular);
(vi) compliance with the requirements of Item 10(e) of Regulation S-K and Regulation G under the Securities Act shall not be required (but the Company shall provide a reconciliation to any non-GAAP financial measures as defined in Regulation G under the Securities Act);
(vii) information specified in Rules 3-10 and 3-16 of Regulation S-X under the Securities Act with respect to Subsidiaries and affiliates shall not be required; and
(viii) no exhibits pursuant to Item 601 of Regulation S-K under the Securities Act (other than in respect of instruments defining the rights of security holders to the extent such instruments would be required to be filed by paragraph (b)(4) of such Item 601 and material contracts to the extent such contracts would be required to be filed by paragraph (b)(10) of such Item 601) shall be required; provided, however, that contracts required to be filed only by either or both of paragraph (b)(10)(ii)(A) and paragraph (b)(10)(iii) of such Item 601 shall not be required.
(b) For so long as any Notes remain outstanding, the Company and the Guarantors shall furnish to the Holders and to prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(dc) Delivery of any reportsFor so long as the Company files the foregoing reports and other information with the SEC, information and documents the Company shall be deemed to have provided to the Trustee will be for informational purposes only and Holders all of the foregoing reports and other information if the Company has filed or furnished such reports and other information with the SEC via the ▇▇▇▇▇ filing system or any successor electronic filing system and such reports are publicly available. For the administrative convenience of the Trustee’s receipt , the Company shall send an electronic copy of each such shall filing to the Trustee at such e-mail address as the Trustee may specify from time to time in accordance with the notice provisions of the Indenture; provided, however, that failure to send any such electronic copies will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)a Default.
Appears in 1 contract
Sources: Indenture (Credit Acceptance Corp)
SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided Notwithstanding that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall Issuers may not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, to the Issuer extent permitted by the Exchange Act, the Issuers will file with the SEC, and make available to the Trustee and the registered holders of the Securities, the annual reports and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act within the time periods specified therein. In the event that the Issuers are not permitted to file such reports, documents and information with the SEC pursuant to the Exchange Act, the Issuers will nevertheless make available such Exchange Act information to the Trustee and the holders of the Securities as if the Issuers were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified therein or in the relevant forms. If the Issuers have designated any of their Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph shall furnish include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes to the financial statements and in Management’s Discussion and Analysis of Results of Operations and Financial Condition, of the financial condition and results of operations of the Issuers and their Restricted Subsidiaries. In addition, the Issuers and the Subsidiary Guarantors have agreed that they will make available to the Holders and to prospective investors, upon the requests request of such Holders, any the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable under the Securities Act.
(d) Delivery . For purposes of any reportsthis Section 3.12, information the Issuers and documents the Subsidiary Guarantors will be deemed to have furnished the reports to the Trustee will be for informational purposes only and the Trustee’s receipt Holders of Securities as required by this Section 3.12 if the Issuers have filed such reports with the SEC via the ▇▇▇▇▇ filing system and such reports are publicly available. The filing requirements set forth above for the applicable period shall be deemed satisfied by the Issuers prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by the filing with the SEC of the exchange offer registration statement and/or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act; provided that this paragraph shall not constitute constructive notice supersede or in any manner suspend or delay the Issuers’ reporting obligations set forth in the first three paragraphs of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)this Section 3.12.
Appears in 1 contract
Sources: Indenture (Mirant Corp)
SEC Reports. (a) On Since January 1, 2013, the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required (all such forms, reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q after January 1, 2013 and 10-K if at or prior to the Issuer were required to file such reports; and
(2) all current reports Effective Time that would be are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer on Exchange Act, as the SEC’s case may be, and with all applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy Act, each as in effect on the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionAs of its filing date (or, at if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), each SEC Report did not, or will not, as the case may be, contain any time on and after untrue statement of a material fact or omit to state any material fact necessary in order to make the Escrow Release Date when statements made therein, in the Issuer light of the circumstances under which they were made, not misleading.
(d) Since January 1, 2013, neither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Entity (i) any written comments that have not been resolved with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or (ii) any written notice that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the Company, there is not not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Entity of any SEC Reports (including the financial statements included therein).
(e) No Subsidiary of the Company is subject to the reporting requirements of Section 13 13(a) or Section 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(df) Delivery No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any reportsSEC Report, information and documents to except as disclosed in certifications filed with the Trustee will be for informational purposes only and SEC Reports. Since January 1, 2013, neither the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received any written notice from any Governmental Entity challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
Sources: Merger Agreement (Micrel Inc)
SEC Reports. Except as set forth in the SEC Reports, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (a2) On and after years preceding the Escrow Release Date, whether date hereof (or not such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC, so long Commission with respect thereto as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within in effect at the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be of filing. No other financial statements or supporting schedules are required to be filed with included in the SEC on Forms 10-Q and 10-K if Registration Statement, the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with Base Prospectus, any Prospectus Supplement or the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings Prospectus. Such financial statements have been made. Ifprepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports except as may be otherwise specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the notes thereto and except that unaudited financial statements may not contain all footnotes theretorequired by GAAP, and fairly present in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by all material respects the Issuer pursuant to this covenant financial position of the financial condition Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerunaudited statements, to normal, immaterial, year-end audit adjustments.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. The Company has filed all forms, reports and documents with the SEC that have been required to be filed by it under applicable laws prior to the date hereof, and the Company will file prior to the Effective Time all forms, reports and documents with the SEC that are required to be filed by it under applicable laws prior to such time (a) On all such forms, reports and after documents, together with any other forms, reports or other documents filed by the Escrow Release DateCompany with the SEC on or prior to the Effective Time that are not required to be so filed, the “SEC Reports”). Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, each as in effect on the date such SEC Report was, or will be, filed. True and correct copies of all Company SEC Reports filed prior to the date hereof, whether or not required by under applicable laws, have been furnished or made available to Parent or are publicly available in the rules Electronic Data Gathering, Analysis and regulations Retrieval (▇▇▇▇▇) database of the SEC. As of its filing date (or, so long as any Notes are outstanding, the Issuer will furnish if amended or superseded by a filing prior to the Trustee anddate of this Agreement, upon written requeston the date of such amended or superseded filing), each SEC Report did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the Holdersstatements made therein, within the time periods specified in the SEClight of the circumstances under which they were made, not misleading. None of the Company’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were Subsidiaries is required to file such reports; and
(2) all current any forms, reports that would be required to be filed or other documents with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing SEC. No executive officer of the foregoing reports by Company has failed to make the Issuer on certifications required of him or her under Section 302 or 906 of the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or Act with respect to any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any HolderSEC Report, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified except as disclosed in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports certifications filed with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to Reports. Neither the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received notice from any Governmental Entity challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
SEC Reports. (a) On Except as set forth in Section 3.7 of the Company Disclosure Schedule, each of the Company and after the Escrow Release DatePartnership has filed all required forms, whether or not required by and reports with the SEC since January 1, 2001 (collectively, the “Company SEC Reports”), all of which were prepared in all material respects in accordance with the applicable requirements of the Exchange Act, the Securities Act and the rules and regulations promulgated thereunder (the “Securities Laws”). As of their respective dates, the Company SEC Reports (a) complied as to form in all material respects with the applicable requirements of the SEC, so long as Securities Laws and (b) did not contain any Notes are outstanding, the Issuer will furnish untrue statement of a material fact or omit to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be state a material fact required to be filed stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each of the consolidated balance sheets included in or incorporated by reference into the Company SEC Reports (including the related notes and schedules) fairly presents in all material respects the consolidated financial position of the Company and the Company Subsidiaries, or the Partnership, as the case may be, as of its date and each of the consolidated statements of income, retained earnings and cash flows of the Company or the Partnership, as the case may be, included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) fairly presents in all material respects the results of operations, retained earnings or cash flows, as the case may be, of the Company and the Company Subsidiaries, or the Partnership, as the case may be, for the periods set forth therein, in each case in accordance with GAAP consistently applied during the SEC on Forms periods involved, except as may be noted therein and except, in the case of the unaudited statements, as permitted by Form 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section Sections 13 or 15(d) of the Exchange ActAct and normal year-end audit adjustments which would not be material in amount or effect. Except for the Partnership, no Company Subsidiary is required to file any form or report with the Issuer shall furnish SEC. The certificates of the Chief Executive Officer and Chief Financial Officer of the Company or the Partnership, as the case may be, required by Rules 13a-14 and 15d-14 of the Exchange Act with respect to the Holders Company SEC Reports, as applicable, are true and correct as of the date of this Agreement as they relate to prospective investorsa particular Company SEC Report, upon as though made as of the requests date of such Holdersthis Agreement. The Company has established and maintains disclosure controls and procedures, any information required to be delivered pursuant to Rule 144A(d)(4) has conducted the procedures in accordance with their terms and has otherwise operated in compliance with the requirements under Rules 13a-15 and 15d-15 of the Securities Exchange Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On and after Notwithstanding that the Escrow Release Date, whether or Company may not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Issuer shall furnish Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Company is required to file with the Holders and SEC pursuant to prospective investorssuch Section 13(a) or 15(d) or would be so required to file if the Company were so subject. If, upon the requests of such Holdersat any time, any audited or reviewed financial statements or information required to be delivered included in any such filing are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to Rule 144A(d)(4the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (a) under the Securities Act.
Company shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this paragraph (dsuch initial date, the “Reporting Date”) Delivery and (b) if the Company makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Trustee shall have no independent responsibility to determine if liquidated damages are due or the amount of any such liquidated damages. The Company will be deemed to have furnished the reports referred to above to the Trustee and the Holders if any direct or indirect Parent is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act and has filed reports required under Section 13(a) or 15(d) of the Exchange Act with the SEC via the ▇▇▇▇▇ (or successor) filing system and such reports are publicly available. Subject to Article VII, delivery of reports, information and documents to the Trustee will be under this Section 405 is for informational purposes only and the Trustee’s receipt (or constructive receipt) of such the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ Certificatesan Officer’s Certificate). Subject to Article VII, the Trustee is not obligated to confirm that the Company has complied with its obligations contained in this Section 405 to file such reports with the SEC or post such reports and information on its website.
Appears in 1 contract
Sources: Indenture (Hd Supply, Inc.)
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company must provide the Trustee and, upon request, to any Holder of the Notes within 15 days after filing the same with the SEC, or in the event no such filing is required, within 15 days after the end of the applicable time periods specified in the SEC’s rules and regulations (excluding any such information, documents or reports, or portions thereof, subject to confidential treatment and any correspondence with the SEC):
(i) all financial statements that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(ii) all financial statements that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed with the SEC,
EX 4.1 including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations;”
(iii) all current reports containing financial statements that would be required to be filed with the SEC on Form 8-K, or any successor or comparable form; provided that the foregoing shall not obligate the Company to make available any trade secrets, privileged or confidential information obtained from another Person and competitively sensitive information; and
(iv) any other information, documents and other reports necessary to comprise “current public information” for purposes of Rule 144 under the Securities Act. In addition, to the extent not satisfied by the foregoing, the Company shall furnish to the Holders and to prospective investors, upon the requests of such Holderstheir request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act; provided that the foregoing delivery requirements shall be deemed satisfied if the foregoing materials are available on the SEC’s ▇▇▇▇▇ system or on the Company’s website within the applicable time period, it being agreed that the Trustee shall have no obligation to determine whether such reports have been made available.
(db) Delivery of any reportsTo the extent such information is not available on the SEC’s ▇▇▇▇▇ system, the Company will make the above information and documents reports available to securities analysts and prospective investors upon request by posting it on the Company’s website.
(c) The Trustee will be for informational purposes only shall have no duty to review or analyze any reports furnished or made available to it and the Trustee’s receipt of such reports shall not constitute actual or constructive notice knowledge of any the information contained therein or determinable from information contained thereintherefrom, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to conclusively rely exclusively on Officers’ Certificatesan Officer’s Certificate). The Trustee shall have no liability whatsoever to determine whether any financial information has been filed or posted on the SEC’s ▇▇▇▇▇ system (or any successor electronic delivery procedure) or have any duty to monitor or determine whether the Company has delivered the reports described under this Section 4.03 or otherwise complied with its obligation under this Section 4.03.
Appears in 1 contract
Sources: Indenture (Moog Inc.)
SEC Reports. (a) On The Company has timely filed with the U.S. Securities and after Exchange Commission (the Escrow Release Date, whether or not required by "SEC") under the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) Exchange Act all quarterly and annual reports that would be documents required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holderunder Sections 13, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 14 or 15(d) of the Exchange ActAct since December 31, 1997. Prior to each Closing Date, the Issuer Company shall furnish have previously delivered to the Holders Purchaser (a) each Annual Report on Form 10-K of the Company filed with the SEC since December 31, 1998 (the Annual Report on Form 10-K most recently filed prior to a given Closing Date is referred to herein as the "COMPANY 10-K" relating to such Closing Date), (b) all proxy statements relating to the Company's meetings of stockholders held since December 31, 1998 and (c) all other documents filed by the Company with the SEC since December 31, 1998, in each case as filed with the SEC (collectively, the "COMPANY SEC REPORTS"). As of their respective dates, such documents complied in all material respects with applicable SEC requirements and did not contain any untrue statement of a material fact or omit to prospective investors, upon the requests of such Holders, any information state a material fact required to be delivered pursuant stated therein or necessary to Rule 144A(d)(4) make the statements therein, in light of the circumstances under the Securities Actwhich they were made, not misleading.
(db) Delivery Neither the Company nor any Subsidiary of the Company, if any, is a party to or bound by, and neither they nor their properties are subject to, any reportscontract or other agreement, information or any amendment thereto, required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the Company which is not disclosed in the Company SEC Reports. Except as disclosed in the Company SEC Reports or as disclosed on Schedule 3.5(b) attached hereto, all of such contracts and documents other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable subsidiary of the Company, if any, and, to the Trustee will be for informational purposes only best knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Trustee’s receipt Company or the applicable subsidiary of such shall not constitute constructive notice of any information contained therein the Company, if any, have paid in full or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).accrued all
Appears in 1 contract
SEC Reports. (a) On Except as set forth on Schedule 6.13, the Acquiror Company has timely filed or furnished all statements, prospectuses, registration statements, forms, reports and after documents required to be filed or furnished by it prior to the Escrow Release Datedate of this Agreement with the SEC pursuant to the applicable requirements of the Exchange Act, whether or not required by the Securities Act and the other U.S. federal securities laws and the rules and regulations of the SEC, so long as any Notes are outstandingSEC promulgated thereunder or otherwise (collectively, the Issuer “Federal Securities Laws”) since its incorporation (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “SEC Reports”), and, as of the Closing, will furnish have filed or furnished all other statements, prospectuses, registration statements, forms, reports and other documents required to be filed or furnished by it subsequent to the Trustee anddate of this Agreement with the SEC pursuant to Federal Securities Laws through the Closing (collectively, upon written requestand together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the Holders“Additional SEC Reports”). Each of the SEC Reports, within as of their respective dates of filing, and as of the time periods specified date of any amendment or filing that superseded the initial filing, complied, and each of the Additional SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, will comply, in all material respects with the SEC’s applicable requirements of the Federal Securities Laws (including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and any rules and regulations for non-accelerated filers:
promulgated thereunder) applicable to the SEC Reports or the Additional SEC Reports. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the SEC Reports. None of the SEC Reports filed on or prior to the date of this Agreement is subject to any ongoing SEC investigation or review. The SEC Reports did not at the time they were filed with the SEC, or if amended, as of the date of such amendment with respect to those disclosures that were amended (1except to the extent that information contained in any SEC Report has been superseded by a subsequently filed SEC Report) all quarterly and annual reports that would be contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Each director and executive officer of the Acquiror Company has filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) a timely basis all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d16(a) of the Exchange ActAct and the rules and regulations promulgated thereunder. As of the date hereof, the Issuer shall furnish Acquiror Company is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of a Person subject to registration or regulation as an “investment company”, in each case, within the Holders and to prospective investors, upon meaning of the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Investment Company Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. Parent’s Registration Statement on Form S-1 in connection with Parent’s initial public offering (athe “Parent Registration Statement”) On and after the Escrow Release Date, whether or not required was declared effective by the rules SEC on May 10, 2011. Thereafter, Parent has timely filed all forms, reports, schedules, statements and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be other documents required to be filed by Parent with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed together with the Parent Registration Statement, the “Parent SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing Documents”). Each of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the Parent SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
Documents: (a) will include a reasonably detailed quantitative presentation, either on was prepared in accordance and complied in all material respects with the face requirements of the financial statements or in the footnotes theretoSecurities Act, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish Sarbanes Oxley Act of 2002 (“SOX”) (to the Holders extent applicable to Parent), other applicable Law and the applicable rules and regulations thereunder, except to prospective investorsthe extent updated, upon amended or corrected by a subsequent Parent SEC Document, and (b) did not at the requests time it was filed (and if amended or superseded by a filing prior to the date of this Agreement then on the date of such Holders, filing and as so amended or superseded) contain any information untrue statement of a material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary in order to Rule 144A(d)(4make the statements therein, in light of the circumstances under which they were made, not misleading. Since the filing of each of the Parent SEC Documents, to the Knowledge of Parent, no event has occurred, other than the SEC notifying the Parent that it will review the Parent’s Registration Statement on Form S-4 filed on August 1, 2011, that would require an amendment or supplement to such Parent SEC Document and as to which such an amendment has not been filed and made publicly available. Other than the SEC notifying the Parent that it will review the Parent’s Registration Statement on Form S-4 filed on August 1, 2011, there are no outstanding unresolved comments with respect to Parent or the Parent SEC Documents noted in comment letters or other correspondence received by Parent or its attorneys from the SEC, and, to the knowledge of Parent, there are no pending (i) under formal or informal investigations of Parent by the SEC or (ii) inspection of an audit of Parent’s financial statements by the Public Company Accounting Oversight Board. Parent is in compliance in all material respects with the Securities Act.
, the Exchange Act, SOX (d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only extent applicable to Parent) and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)applicable rules and regulations thereunder.
Appears in 1 contract
SEC Reports. Except for the Company’s Annual Report on Form 20-F for the year ended December 31, 2019, which was filed late on July 29, 2020 and amended on August 6, 2020, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (a) On and after or such shorter period as the Escrow Release Date, whether or not Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC, so long Commission with respect thereto as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the notes thereto and except that unaudited financial statements may not contain all footnotes theretorequired by GAAP, and fairly present in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by all material respects the Issuer pursuant to this covenant financial position of the financial condition Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerunaudited statements, to normal, immaterial, year-end audit adjustments.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Sources: At the Market Offering Agreement (Bit Digital, Inc)
SEC Reports. (a) On Since January 1, 2010, the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required (all such forms, reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q after January 1, 2010 and 10-K if at or prior to the Issuer were required to file such reports; and
(2) all current reports Effective Time that would be are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer on Exchange Act, as the SEC’s case may be, and with all applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy Act, each as in effect on the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionAs of its filing date (or, at if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), each SEC Report did not, or will not, as the case may be, contain any time on and after untrue statement of a material fact or omit to state any material fact necessary in order to make the Escrow Release Date when statements made therein, in the Issuer light of the circumstances under which they were made, not misleading.
(d) Since January 1, 2010 through the date hereof, neither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Entity (i) any written comments that have not been resolved with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or (ii) any written notice that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the Company, there is not not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Entity of any SEC Reports (including the financial statements included therein).
(e) No Subsidiary of the Company is subject to the reporting requirements of Section 13 13(a) or Section 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(df) Delivery No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any reportsSEC Report, information and documents to except as disclosed in certifications filed with the Trustee will be for informational purposes only and SEC Reports. Since January 1, 2010, neither the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received any written notice from any Governmental Entity challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
SEC Reports. Notwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the Company shall file with the SEC (a) On and after unless such filing is not permitted under the Escrow Release Date, whether Exchange Act or not required by the rules and regulations of the SEC), so long as any Notes are outstanding, the Issuer will furnish to the Trustee andannual reports, upon written requestinformation, the Holders, within the time periods specified in the SEC’s rules documents and regulations for non-accelerated filers:
(1) all quarterly and annual other reports that would be the Company is required to be filed file with the SEC on Forms 10-Q and 10-K if the Issuer were pursuant to such Section 13(a) or 15(d) or would be so required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required so subject to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC reporting requirements as a “non-accelerated filer.”
(b) Notwithstanding anything . The Company will be deemed to have satisfied the contrary, requirements of this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or 404 if any successor provision)Parent files reports, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative documents and information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries types otherwise so required, in each case within the applicable time periods. If such Parent has material operations separate and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% apart from its ownership of the Issuer’s corresponding consolidated amountCompany, then the quarterly Company or such Parent will provide consolidating information, which need not be audited, that explains in reasonable detail the differences between the information relating to such Parent and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentationits Subsidiaries, either on the face of one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand. If any audited or reviewed financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered included in any such filing are not reasonably available on a timely basis as a result of the Company’s or any such Parent’s accountants not being “independent” (as defined pursuant to Rule 144A(d)(4the Exchange Act and the rules and regulations of the SEC thereunder), the Company or such Parent may, in lieu of making such filing, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (a) under the Securities Act.
Company or such Parent shall in any event be required to make such filing no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this Section 404 (dsuch initial date, the “Reporting Date”) Delivery and (b) if the Company or such Parent makes such an election and such filing has not been made, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any reports, information and documents period regardless of the number of such elections by the Company). Reports by the Company or Guarantors delivered to the Trustee will be are for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder or the Notes (as to which the Trustee will be is entitled to rely exclusively on Officers’ Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, its compliance with the covenants or with respect to any reports or other documents filed with the SEC or E▇▇▇▇ or any website under this Indenture, or participate in any conference calls. The Trustee shall have no obligation to determine whether or not such information, documents or reports have been filed pursuant to the SEC’s E▇▇▇▇ filing system (or its successor) or postings to any website have occurred. The Trustee shall have no liability or responsibility for the filing, timeliness, or content of such reports.
Appears in 1 contract
Sources: Indenture (Hertz Corp)
SEC Reports. (a) On and after Notwithstanding that the Escrow Release DateCompany may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, whether or not required to the extent permitted by the rules and regulations of the SEC, so long as any Notes are outstandingExchange Act, the Issuer Company will furnish (i) file with the SEC or (ii) make publicly available to the Trustee and, upon written request, and the Holders, within registered Holders of the time periods specified in the SEC’s rules and regulations for non-accelerated filersNotes:
(1) all quarterly and annual reports information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reportsForms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent registered accounting firm; and
(2) all current reports information that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required to file such reports; provided .
(b) In the event that the electronic filing of Company is not permitted to file such reports, documents and information with the foregoing reports by SEC pursuant to the Issuer on Exchange Act, the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations Company will nevertheless make publicly available such Exchange Act information to the Trustee and any Holderthe Holders of the Notes as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a) in the case of quarterly reports, it being understood that within 15 days after the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports time period specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
SEC’s rules and regulations and (b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum case of annual reports, within 30 days after the time period specified in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the IssuerSEC’s Subsidiaries are Unrestricted Subsidiaries rules and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerregulations.
(c) In addition, at the Company and the Guarantors have agreed that they will make available to the Holders and to prospective investors, upon the request of such Holders, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act. For purposes of this Section 4.03(c), the Company and the Guarantors will be deemed to have furnished the reports to the Trustee and the Holders of Notes as required by this Section 4.03 if it has filed such reports with the SEC via the ▇▇▇▇▇ filing system or such reports are publicly available. Delivery of reports information, notifications and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any time information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely on Officer’s Certificates). The Trustee shall not have any liability or responsibility for the filing, posting, timeliness or content of any such reports or information.
(d) The Parent Guarantor or any successor parent may satisfy the obligations of the Company set forth in Section 4.03(a) through (c) provided that if the Parent Guarantor or any successor parent does not conduct substantially all of its business through the Company then the Parent Guarantor or any successor parent shall identify any material differences in the net income and after revenues of the Escrow Release Date when Parent Guarantor on a consolidated basis vs. those of the Issuer Company on a consolidated basis.
(e) Notwithstanding anything contained in this Indenture, if not filed with the SEC but made publicly available to the Trustee and the registered Holders of the Notes in the event that the Company or the Parent Guarantor or any successor parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of (a) such Holders, any information will not be required to comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, or related Items 307 and 308 of Regulation S- K promulgated by the SEC and (b) such information will not be delivered pursuant required to contain the separate financial information for Guarantors as contemplated by Rule 144A(d)(4) under 3-10 of Regulation S-X or Subsidiaries whose securities are pledged to secure the Securities ActNotes as contemplated by Rule 3-16 of Regulation S-X or any financial statements of unconsolidated Subsidiaries or 50% or less owned Persons as contemplated by Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X, or in each case any successor provisions.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations Company is subject to the reporting requirements of Section 13 or 15(d) of the SEC, so long as any Notes are outstandingExchange Act, the Issuer will furnish Company shall file with the SEC (subject to the next sentence) and provide the Trustee andand Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, upon written requestsuch reports to be so filed and provided at the times specified for the filings of such reports under such Sections and containing all the information, audit reports and exhibits required for such reports. If at any time, the HoldersCompany is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall nevertheless continue filing the reports specified in the preceding sentence with the SEC within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with unless the SEC on Forms 10-Q and 10-K if will not accept such a filing. The Company shall not take any action for the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with purpose of causing the SEC on Form 8-K if the Issuer were required not to file accept any such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been madefilings. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will Company shall post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer Company were required to file those reports with the SEC as a “non-accelerated filer.”
(b) SEC. Notwithstanding anything the foregoing, the Company shall be entitled to satisfy such requirements prior to the contrary, this Section 4.02 does not require effectiveness of the Issuer to comply with Rule 3-10 Exchange Offer Registration Statement or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent Shelf Registration Statement by filing with the SEC the Exchange Offer Registration Statement or Shelf Registration Statement, to the extent that any such Registration Statement contains substantially the same information provided in the Offering Memorandum in the reports as would be required to be delivered pursuant filed by the Company if it were subject to the reporting requirements of Section 4.02(a)(113 or 15(d) aboveof the Exchange Act, and by providing the Trustee and Holders with such Registration Statement (and any amendments thereto) promptly following the filing thereof. At any time that any of the Issuer’s Company's Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSubsidiaries, then the quarterly and annual financial information required by Section 4.02
(a) will the preceding paragraph shall include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “"Management’s 's Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant ," of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Company. In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall furnish to the Holders of the Securities and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable under the Securities Act.
(d) Delivery . The Company also shall comply with the other provisions of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ CertificatesTIA Section 314(a).
Appears in 1 contract
Sources: Indenture (PrimeWood, Inc.)
SEC Reports. (a) On The Company has filed all reports, schedules, forms, statements and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be other documents required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on Company under the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee Securities Act and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, since January 1, 2012 (the Issuer shall furnish foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the "SEC Reports") on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the Holders expiration of any such extension. As of their respective dates, the SEC Reports (i) were complete and accurate in all material respects and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to prospective investors, upon the requests of such Holders, any information state a material fact required to be delivered stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable. Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any material liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to Rule 144A(d)(4GAAP or disclosed in filings made with the SEC, (iii) under the Securities Act.
Company has not altered its method of accounting, (div) Delivery the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any reports, information and documents agreements to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of purchase or redeem any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any shares of its covenants hereunder capital stock and except for this Agreement and for dividends made in respect of the Company's Series A Convertible Preferred Stock, and (as v) the Company has not issued any equity securities to which the Trustee will be entitled any officer, director or Affiliate, except pursuant to rely exclusively on Officers’ Certificates)existing Company stock option plans.
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether The Company has timely filed or not required by the rules and regulations of the SEC, so long furnished (as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1applicable) all quarterly and annual reports SEC Reports that would be have been required to be so filed or furnished (as applicable) by it under the Securities Act or the Exchange Act, as the case may be.
(b) Each SEC Report filed prior to the date hereof complied, and each SEC Report filed with the SEC on Forms 10-Q and 10-K after the date hereof, will comply, as the case may be, as of its filing date (or, if amended, as of the Issuer were required amendment date) as to file such reports; and
(2) form in all current reports that would be required to be filed material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer Exchange Act, as the case may be, each as in effect on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionExcept as disclosed in the SEC Reports, at since the Reference Date, the Company has not received from the SEC or any time on and after other Governmental Authority any written comments or questions with respect to any of the Escrow Release Date when SEC Reports (including the Issuer financial statements included therein) or any written notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) are being reviewed or investigated, and, to the knowledge of the Company, there is not subject any investigation or review being conducted by the SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the reporting requirements of SEC Reports.
(d) No Subsidiary is required to file any periodic reports, or other documents under Section 13 or Section 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(de) Delivery Each of any reportsthe principal executive officer and the principal financial officer of the Company (or each former principal executive officer and each former principal financial officer of the Company, information as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and documents Sections 302 and 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to the Trustee will be for informational purposes only SEC Reports, and the Trustee’s receipt statements contained in such certifications are true and accurate and were true and accurate when made. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including terms in the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)S▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
Appears in 1 contract
SEC Reports. Since January 1, 2013, the Company has timely filed or furnished (aas applicable) On all forms, reports and after documents with the Escrow Release DateSEC that have been required to be so filed or furnished (as applicable) by it under applicable Law (all such forms, reports and documents, together with any other forms, reports or other documents filed or furnished (as applicable) by the Company with the SEC (the “SEC Reports”). Each SEC Report complied as of its filing date as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (the “▇▇▇▇-▇▇▇▇▇ Act”), each as in effect on the date such SEC Report was filed. True and complete copies of all SEC Reports filed prior to the date hereof, whether or not required by the rules and regulations of the SECunder applicable Law, so long as any Notes have been made available to Parent or are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified publicly available in the SEC’s rules Electronic Data Gathering, Analysis and regulations for non-accelerated filers:
Retrieval (1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system ▇) database of the SEC. As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), each SEC Report did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Neither the Company nor any Subsidiary of the Company has received from the SEC or any successor system) shall be deemed other Governmental Authority any written comments or questions with respect to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, of the SEC will not accept such filings for Reports (including the financial statements included therein) or any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports registration statement filed by any of them with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), notice from the SEC or to provide separate financial statements of any Guarantor; provided other Governmental Authority that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries SEC Reports (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of including the financial statements included therein) or in registration statements are being reviewed or investigated, and, to the footnotes theretoCompany’s Knowledge, and in “Management’s Discussion and Analysis there is not, as of Financial Condition and Results the date of Operations” this Agreement, any investigation or elsewhere in reports provided review being conducted by the Issuer pursuant to this covenant SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein). None of the financial condition and results of operations of the Issuer and its Restricted Company’s Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, . No executive officer of the Issuer shall furnish Company has failed to make the Holders and certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to prospective investors, upon any SEC Report. Neither the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received notice from any Governmental Authority challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so So long as any the Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were Company is required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (annual or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those quarterly reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of under Section 13 or 15(d) of the Exchange Act, the Issuer Company (at its own expense) shall furnish file with the SEC and shall mail to the Holders, promptly after it files them with the SEC, copies of the quarterly and annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) required to be filed pursuant to Section 13 or 15(d) of the Exchange Act.
(b) At the Company's expense, the Company shall cause an annual report, if furnished by it to its stockholders generally, and each quarterly or other financial report if furnished by it to its stockholders generally, to be mailed to the Holders.
(c) For so long as any Senior Debt is outstanding and the Company is required to provide annual and quarterly financial statements to the holders of the Senior Debt, the Company shall cause such financial statements including notes thereto and each related auditor's report and compliance certificates pursuant to the Credit Agreement to be so mailed to the Holders within 90 days after the end of each fiscal year and to prospective investorswithin 45 days after the end of each of the Company's first three fiscal Quarters in each fiscal year. If no Senior Debt is outstanding, upon or the requests of such Holders, any information Company is not required to provide such financial statements to the holders of Senior Debt, and the Company is not required to file annual or quarterly reports with the SEC under Section 13 or 15(d) of the Exchange Act for any fiscal period ending after the Initial Issue Date, the Company shall cause its consolidated financial statements, including any notes thereto (and, in the case of a fiscal year end, an auditor's report by an accounting firm of nationally established reputation), and a "Management's Discussion and Analysis of Financial Condition and Results of Operations" comparable to that which would have been required to appear in annual or quarterly reports filed under Section 13 or 15(d) of the Exchange Act if the Company had a class of securities listed on a national securities exchange, to be delivered pursuant so mailed to Rule 144A(d)(4) under the Securities ActHolders within 90 days after the end of each fiscal year and within 45 days after the end of each of the Company's first three fiscal Quarters in each fiscal year.
(d) Delivery of The Company shall provide to any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of Holder any information contained therein reasonably requested by such Holder concerning the Company (including financial statements) necessary in order to permit such Holder to sell or determinable from information contained therein, including the Issuer’s transfer Notes in compliance with any of its covenants hereunder (as to which Rule 144A under the Trustee will be entitled to rely exclusively on Officers’ Certificates)Securities Act; provided that such information is in the possession of, or reasonably available to, the Company.
Appears in 1 contract
SEC Reports. (a) On The Company has filed or furnished, as applicable, all reports, schedules, forms, statements and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be other documents required to be filed with or furnished, as applicable by the SEC on Forms 10-Q Company under the Securities Act and 10-K if the Issuer were Exchange Act, for the one (1) year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such reports; and
material) (2the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension. The SEC Reports at the time they were filed complied, in all current reports material respects with the Securities Act or the Exchange Act, as applicable. There are no Contracts, or any material changes or amendments thereto, or any waivers of any material right thereunder, that would are required to be described in the SEC Reports that were not described, in all material respects, as required in the SEC Reports. There are no Contracts, or any material changes or amendments thereto, or any waivers of any material right thereunder, that are required to be filed with as exhibits to the SEC on Form 8-K if Reports will not have been filed as required therein. There are no outstanding or unresolved comments in comment letters received from the Issuer were required SEC staff with respect to file such reports; provided that the electronic filing SEC Reports. None of the foregoing reports by SEC Reports is the Issuer on the SEC’s ▇▇▇▇▇ system subject of an ongoing SEC review. There are no SEC inquiries or investigations, other governmental inquiries or investigations or internal investigations pending or threatened in writing (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations or, to the Trustee and any HolderCompany’s knowledge, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provisionthreatened orally), or to provide separate financial statements of in each case regarding any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any accounting practice of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the IssuerCompany.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On The Company will file with the SEC all information, documents and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, whether or not the Issuer Company is subject to such filing requirements, so long as the SEC will accept such filings; provided, however, that the Company shall not be required to make any such filings prior to the date on which the Company's Annual Report on Form 10-K for the fiscal year ended June 29, 1997 would have been required to be filed if, at the time such filings would have been required to be made with the SEC, either (i) the Company shall have provided to each Holder of the Notes the information that would have been required to be filed or (ii) the Exchange Registration Statement (as such term is defined in the Registration Rights Agreement) has been filed with the SEC but has not yet been declared effective and copies of the Exchange Offer Registration Statement and any amendments thereto (to the extent such Registration Statement and/or amendments contain additional information not disclosed in the Offering Memorandum that would have been the subject of a filing required to be made under Section 13 or 15(d) of the Exchange Act) have been provided to each Holder of the Notes, provided that any exhibits to the Exchange Registration Statement (or any amendments thereto) need not be delivered to any Holder of the Notes, but sufficient copies thereof shall be furnished to the Trustee as reasonably requested to permit the Trustee to deliver any such exhibits to any Holder of the Notes upon request. The Company (at its own expense) shall file with the Trustee within 100 days after the end of each fiscal year of the Company, or within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, as the case may be, copies of the annual reports or unaudited quarterly consolidated financial statements, as the case may be, and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may be rules and regulations prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Upon qualification of this Indenture under the TIA, the Company shall also comply with the provisions of TIA Section 314(a).
(b) At the Company's expense, regardless of whether the Company is required to furnish such reports and other information referred to in paragraph (a) above to its stockholders pursuant to the Exchange Act, the Company shall cause such reports and other information to be mailed to the Holders at their addresses appearing in the register of Notes maintained by the Registrar within 100 days after the end of each fiscal year of the Company, or within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, as the case may be. Such reports shall be delivered to the Registrar and the Registrar will mail them, at the Company's expense, to prospective investorsthe Holders at their addresses appearing in the register of Notes maintained by the Registrar.
(c) The Company shall, upon the requests request, provide to any Holder of Notes or any prospective transferee of any such Holders, Holder any information concerning the Company (including financial statements) necessary in order to permit such Holder to sell or transfer Notes in compliance with Rule 144A under the Securities Act; provided, however, that the Company shall not be required to furnish such information in connection with any request made on or after the date which is three years (or such other date as the Notes shall be delivered freely transferable pursuant to Rule 144A(d)(4144) from the later of (i) the date such Note (or any predecessor Note) was acquired from the Company or (ii) the date such Note (or any predecessor Note) was last acquired from an "affiliate" of the Company within the meaning of Rule 144 under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On The Issuers will file with the SEC all information, documents and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, in the Issuer shall furnish case of the Company, whether or not the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and in the case of Capital, only to the Holders and extent subject to prospective investorssuch filing requirements; provided, upon however, that the requests of Company shall not be required to make any such Holders50 filings prior to the date on which the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended January 31, any information 1998 would have been required to be filed, if, at the time such filings would have been required to be made with the SEC, either (i) the Company shall have provided to each Holder of the Notes the information that would have been required to be filed or (ii) the Exchange Registration Statement (as such term is defined in the Registration Rights Agreement) has been filed with the SEC but has not yet been declared effective and copies of the Exchange Offer Registration Statement and any amendments thereto (to the extent such Registration Statement and/or amendments contain additional information not disclosed in the Offering Memorandum that would have been the subject of a filing required to be made under Section 13 or 15(d) of the Exchange Act) have been provided to each Holder of the Notes, provided that any exhibits to the Exchange Registration Statement (or any amendments thereto) need not be delivered to any Holder of the Notes, but sufficient copies thereof shall be furnished to the Trustee as reasonably requested to permit the Trustee to deliver any such exhibits to any Holder of the Notes upon request. The Issuers (at their own expense) will file with the Trustee within 15 days after they file them with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Issuers file with the SEC pursuant to Rule 144A(d)(4Section 13 or 15(d) of the Exchange Act. Upon qualification of this Indenture under the Securities Act.
(d) TIA, the Issuers shall also comply with the provisions of TIA Section 314(a). Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only and the Trustee’s 's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s Issuers' compliance with any of its their covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ ' Certificates).
(b) At the Issuers' expense, regardless of whether the Issuers are required to furnish such reports and other information referred to in paragraph (a) above to their equityholders pursuant to the Exchange Act, the Company shall cause such reports and other information to be mailed to the Holders at their addresses appearing in the register of Notes maintained by the Registrar within 15 days after they file them with the SEC.
(c) The Issuers shall, upon request, provide to any Holder of Notes or any prospective transferee of any such Holder any information concerning the Issuers (including financial statements) necessary in order to permit such Holder to sell or transfer Notes in compliance with Rule 144A under the Securities Act; provided, however, that the Issuers shall not be required to furnish such information in connection with any request made on or after the date which is two years from the later of (i) the date such Note (or any predecessor Note) was acquired from the Issuers or (ii) the date such Note (or any predecessor Note) was last acquired from an "affiliate" of the Issuers within the meaning of Rule 144 under the Securities Act.
Appears in 1 contract
Sources: Indenture (TWP Capital Corp Ii)
SEC Reports. (a) On The Company has furnished Purchasers with true and after complete copies (including all amendments thereof) of its (i) Annual Reports on Form 10-K for the Escrow Release fiscal years ended August 3, 1997 and August 2, 1998 as filed with the SEC, (ii) Quarterly Report on Form 10-Q for the quarter ended November 1, 1998, as filed with the SEC, (iii) proxy statements related to all meetings of its stockholders (whether annual or special) held since February 7, 1997 and (iv) all other reports filed with, or registration statements declared effective by, the SEC since February 7, 1997, which are all the documents (other than preliminary material) that the Company filed or was required to file with the SEC from that date through the date hereof (clauses (i) through (iv) being referred to herein collectively as the "SEC Reports"). ----------- From the date hereof through the Closing Date, whether the Company will furnish to Purchasers copies of any reports and registration statements to be filed with the SEC (the "Interim SEC Reports") within a reasonable amount of time prior to filing thereof. As of their respective dates, the SEC Reports (or not required by the Interim ------- SEC Reports, as the case may be) complied or will comply, as the case may be, in ----------- all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC, so long as any Notes are outstandingSEC thereunder applicable to such reports and registration statements. As of their respective dates, the Issuer SEC Reports (or the Interim SEC Reports, as the case may be) did not and will furnish not, as the case may be, contain any untrue statement of a material fact or omit to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be state a material fact required to be filed with stated therein or necessary to make the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing statements therein, in light of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (circumstances under which they were, or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holderwill be, it being understood that the Trustee shall made, not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filermisleading.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate The audited consolidated financial statements and unaudited interim financial statements of any Guarantor; provided that the Issuer will continue Company included in the SEC Reports (or to provide qualitative information on non-Guarantor Subsidiaries substantially consistent be included in the Interim SEC Reports, as the case may be) comply as to form in all material respects with applicable accounting requirements of the Securities Act or the Exchange Act, as applicable, and with the information provided published rules and regulations of the SEC with respect thereto. The financial statements and the condensed financial statements, as applicable, included in the Offering Memorandum SEC Reports (or to be included in the reports required to Interim SEC Reports, as the case may be) (i) have been prepared in accordance with generally accepted accounting principles ("GAAP") ---- applied on a consistent basis (except as may be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements indicated therein or in the footnotes notes thereto), (ii) present fairly, in all material respects, the financial position of the Company and its subsidiaries as of the dates thereof and the results of their operations and cash flows for the periods then ended subject, in the case of the unaudited interim financial statements, to normal year-end audit adjustments and any other adjustments described therein and the fact that certain information and notes have been condensed or omitted in accordance with the Exchange Act and the rules and regulations promulgated thereunder, and (iii) are in “Management’s Discussion all material respects in agreement with the books and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant records of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuersubsidiaries.
(c) In additionThe Company and its subsidiaries keep proper accounting records in which all material assets and liabilities, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) all material transactions, of the Exchange Act, Company and its subsidiaries are recorded in conformity with applicable accounting principles. No part of the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein Company's or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder subsidiaries' accounting system or records, or access thereto, is under the control of a Person who is not an employee of the Company or such subsidiary (as to which other than the Trustee will be entitled to rely exclusively on Officers’ CertificatesCompany's independent auditors and outside legal counsel).
Appears in 1 contract
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (a) On and after or such shorter period as the Escrow Release Date, whether or not Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the "SEC Reports"). As of their respective dates, the SEC Reports (including the financial statements, exhibits and schedules thereto) complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SECCommission promulgated thereunder, so long as any Notes are outstanding, applicable and did not at the Issuer will furnish time they were filed (or if amended or superseded by a filing prior to the Trustee anddate of this Agreement, upon written requestthen on the date of such filing) contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to made the statements therein, in light of the Holderscircumstances they were made, within not misleading. Each of the time periods specified financial statements (including, in each case, any related notes thereto) contained in the SEC’s SEC Reports (the "Company Financials"), including any SEC Reports filed after the date hereof until the Closing, as of their respective dates, (i) complied as to form in all material respects with the published rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with of the SEC with respect thereto, (ii) was prepared in accordance with GAAP applied on Forms 10-Q and 10-K if a consistent basis throughout the Issuer were required to file such reports; and
periods involved (2) all current reports that would except as may be required to indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be filed with permitted by the SEC on Form 810-K if Q under the Issuer were required to file such reports; provided Exchange Act) and (iii) fairly presented the financial position of the Company at the respective dates thereof and the consolidated results of its operations and cash flows for the periods indicated, except that the electronic filing unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not, or are not expected to be, material in amount. The balance sheet of the foregoing reports by Company as of December 31, 2005 is hereinafter referred to as the Issuer on "Company Balance Sheet." Except as disclosed in the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoingCompany Financials, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 Company does not require the Issuer to comply with Rule 3-10 have any liabilities (absolute, accrued, contingent or Rule 3-16 otherwise) of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports a nature required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in disclosed on a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements balance sheet or in the footnotes theretorelated notes to the consolidated financial statements prepared in accordance with GAAP which are, and individually or in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant aggregate, material to this covenant of the financial condition and business, results of operations or financial condition of the Issuer and its Restricted Subsidiaries separate from Company, except liabilities (i) provided for in the financial condition and results of operations Company Balance Sheet, or (ii) incurred since the date of the Unrestricted Subsidiaries Company Balance Sheet in the ordinary course of the Issuerbusiness consistent with past practices and which would not reasonably be expected to have a Material Adverse Effect.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Sources: Securities Purchase Agreement (Phase Iii Medical Inc/De)
SEC Reports. This Section 4.03 shall apply to the Securities in lieu of Section 7.4 of the Base Indenture, which shall be deemed to be replaced in its entirety by this Section 4.03 for purposes of the Securities.
(aA) On and The Company shall deliver to the Trustee, no later than fifteen (15) days after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be date such report is required to be filed with the SEC on Forms 10-Q pursuant to the Exchange Act (after giving effect, to the extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), a copy of each report (or copies of such portions of such report as the SEC may from time to time by rules and 10-K if regulations prescribe) the Issuer were Company is required to file such reportswith the SEC pursuant to Section 13 or 15(d) of the Exchange Act; and
(2) all current reports provided, however, that would the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the SEC; provided further, each such report will be deemed to be so delivered to the Trustee at the time such report is filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on through the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerdatabase.
(cB) In additionIf the Company is, at any time on and after the Escrow Release Date when the Issuer is not while any Securities are outstanding, no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, then the Issuer Company shall furnish continue to provide to the Holders Trustee (and, unless the SEC will not accept such filing, file with the SEC in accordance with rules and regulations prescribed from time to prospective investorstime by the SEC) and, upon request, to each Holder, no later than the requests date the Company would have been required to file the same with the SEC, the reports the Company would have been required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (after giving effect, to the extent it would have been applicable, any extension permitted by Rule 12b-25 under the Exchange Act) if the Company had securities listed and registered on a national securities exchange and were subject to the reporting requirements of such Holderssections. The Company shall also deliver to the Trustee copies of the Company’s annual report to stockholders, containing audited financial statements, and any information required other financial reports which the Company furnishes to be delivered pursuant to Rule 144A(d)(4) under its stockholders. The Company also shall comply with the Securities Act.
(d) other provisions of TIA § 314(a). Delivery of any such reports, information and documents to the Trustee will be is for informational purposes only only, and the Trustee’s receipt of such thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder (as to which the Trustee will be is entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) On Since March 1, 2015 (the “Reference Date”), the Company has filed or furnished (as applicable) all forms, reports, schedules, statements and documents with the SEC that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, and, after the Escrow Release Date, whether or not required by date of this Agreement and until the rules and regulations of the SEC, so long as any Notes are outstandingEffective Time, the Issuer Company will furnish to file all forms, reports, schedules, statements and documents with the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports SEC that would be are required to be filed by it under Applicable Law at or prior to the time so required (all such forms, reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC on Forms 10-Q and 10-K if at or prior to the Issuer were required to file such reports; and
(2) all current reports Effective Time that would be are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable requirements of the foregoing reports by Securities Act or the Issuer on Exchange Act, as the SEC’s case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy Act, each as in effect on the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether date such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision)Report was, or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountbe, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerfiled.
(c) In additionSince the Reference Date, at neither the Company nor any time on and after of its Subsidiaries has received from the Escrow Release Date when SEC or any other Governmental Authority any written comments or questions with respect to any of the Issuer is not subject SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the reporting requirements of Section 13 or 15(d) knowledge of the Exchange ActCompany, there is not, any investigation or review being conducted by the Issuer shall furnish SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActSEC Reports.
(d) Delivery None of the Company’s Subsidiaries is required to file any forms, reports, information schedules, statements or other documents with the SEC.
(e) No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, except as disclosed in certifications filed with the SEC Reports, and documents to at the Trustee will be for informational purposes only time of filing or submission of each such certification, such certification was true and accurate and complied with the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Neither the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received notice from any Governmental Authority challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
SEC Reports. The Company has timely filed or furnished, as applicable, all reports, proxy statements, schedules, forms, statements, certifications and other documents (aincluding exhibits and all other information incorporated by reference therein) On required to be filed or furnished by the Company under the Securities Exchange Act of 1934, as amended, and after the Escrow Release Date, whether or not required by the rules and regulations of promulgated thereunder (the SEC, so long as any Notes are outstanding“Exchange Act”) (the “SEC Reports”) since the Company was first required by Law or regulation to file such material. The Draft Super 8-K complies, the Issuer Super 8-K when filed will furnish be substantially identical to the Trustee Draft Super 8-K and will comply, and the SEC Reports at the time they were filed complied, in all material respects with the Securities Act or the Exchange Act, as applicable. There are no Contracts (or any material change or amendment thereto, or any waiver of any material right thereunder) that are required to be described in the SEC Reports or will be required to be described in the Super 8-K that were or are not described, in all material respects, therein or, in the case of Contracts (or any material change or amendment thereto, or any waiver of any material right thereunder) that will be required to be described in the Super 8-K, are not described in the Draft Super 8-K. There are no Contracts (or any material change or amendment thereto, or any waiver of any material right thereunder) that are required to be filed as exhibits to the SEC Reports or the Super 8-K that were not or will not have been filed as required in the SEC Reports or the Super 8-K and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
case of no Contracts (1or any material change or amendment thereto, or any waiver of any material right thereunder) all quarterly and annual reports that would will be required to be filed with as exhibits to the Super 8-K, are not included as exhibits to the Draft Super 8-K. There are no outstanding or unresolved comments in comment letters received from the SEC on Forms 10-Q and 10-K if the Issuer were required staff with respect to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if Reports. To the Issuer were required to file such reports; provided that the electronic filing Company’s knowledge, none of the foregoing reports by SEC Reports is the Issuer on the SEC’s ▇▇▇▇▇ system subject of an ongoing SEC review. There are no SEC inquiries or investigations, other governmental inquiries or investigations or internal investigations pending or threatened in writing (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations or, to the Trustee and any HolderCompany’s knowledge, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provisionthreatened orally), or to provide separate financial statements of in each case regarding any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any accounting practice of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements Company or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as Subsidiaries or otherwise relating to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Subscription Agreement (Lomond Therapeutics Holdings, Inc.)
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall file with the SEC (subject to the next sentence) and provide the Trustee and Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided at the times specified for the filings of such reports under such Sections and containing all the information, audit reports and exhibits required for such reports. If, at any time, the Company is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall provide the Trustee and Holders with such reports within the time periods specified in such Exchange Act sections for a registrant that is not an accelerated filer or a large accelerated filer; provided, however, that
(i) no certifications or attestations concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required (provided further, however, that nothing contained in the terms herein shall otherwise require the Company to comply with the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 at any time when it would not otherwise be subject to such statute);
(ii) the financial statements required of acquired businesses shall be limited to the financial statements (in whatever form) that the Company receives in connection with the applicable acquisition, whether or not audited;
(iii) no financial statements of unconsolidated entities shall be required;
(iv) no financial schedules specified in Regulation S-X under the Securities Act shall be required;
(v) the Company may limit the information disclosed in such reports in respect of Item 402 of Regulation S-K under the Securities Act to the information identified in Item 402 that is included other than through incorporation by reference in the Offering Memorandum (which disclosure regarding such types of information shall be presented in a manner consistent in all material respects with the disclosure so contained in the Offering Memorandum);
(vi) compliance with the requirements of Item 10(e) of Regulation S-K and Regulation G under the Securities Act shall not be required (but the Company shall provide a reconciliation to any non‑GAAP financial measures as defined in Regulation G under the Securities Act);
(vii) information specified in Rules 3-10 and 3-16 of Regulation S-X under the Securities Act with respect to Subsidiaries and affiliates shall not be required; and
(viii) no exhibits pursuant to Item 601 of Regulation S-K under the Securities Act (other than in respect of instruments defining the rights of security holders to the extent such instruments would be required to be filed by paragraph (b)(4) of such Item 601 and material contracts to the extent such contracts would be required to be filed by paragraph (b)(10) of such Item 601) shall be required; provided, however, that contracts required to be filed only by either or both of paragraph (b)(10)(ii)(A) and paragraph (b)(10)(iii) of such Item 601 shall not be required. References in the immediately-preceding clauses (i) through (viii) to statutory or regulatory provisions include any successor provisions. Notwithstanding anything to the contrary, so long as the Company is a consolidated Subsidiary of a direct or indirect parent company for financial reporting purposes, the reports and other information required to be filed, provided or furnished pursuant to the first paragraph of this Section 4.02(a) may, at the option of the Company, be those of such parent company, rather than those of the Company, and, if the Company so elects in any such case, may be filed, provided or furnished by such parent company; provided that financial information of such parent company so filed, provided or furnished include a reasonable explanation of the material differences (if any) between the information relating to such parent company, on the one hand, and the information relating to the Company and its consolidated Subsidiaries on a standalone basis, on the other hand.
(b) For so long as any Notes remain outstanding and constitute “restricted securities” (as defined in Rule 144 under the Securities Act), at any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company and the Guarantors shall furnish to the Holders and to prospective investors, upon their request, the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(dc) Delivery of any reportsFor so long as the Company (or parent company, as applicable) files the foregoing reports and other information and documents with the SEC, the Company shall be deemed to have provided to the Trustee and Holders all of the foregoing reports and other information if the Company (or parent company, as applicable) has filed or furnished such reports and other information with the SEC via the ▇▇▇▇▇ filing system or any successor electronic filing system and such reports are publicly available. For the administrative convenience of the Trustee, the Company shall send an electronic copy of each such filing to the Trustee at such e-mail address as the Trustee may specify from time to time in accordance with the notice provisions of this Indenture; provided, however, that failure to send any such electronic copies will not constitute a Default or Event of Default.
(d) To the extent that any report or other information is not filed, provided or furnished within the time periods specified in this Section 4.02 and such report or other information is subsequently filed, provided or furnished, the Company will be for informational purposes only deemed to have satisfied its obligations with respect thereto at such time and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance Default with any of its covenants hereunder (as to which the Trustee respect thereto will be entitled deemed to rely exclusively on Officers’ Certificates)have been cured.
Appears in 1 contract
Sources: Indenture (Credit Acceptance Corp)
SEC Reports. The Company has filed in a timely manner with the SEC all reports required to be filed pursuant to the Exchange Act and is current in its reporting obligations. As of their respective dates, all reports required to filed pursuant to the Exchange Act, and all SEC filings by the Company pursuant to the Securities Act (acollectively, the “SEC Reports”) On comply in all material respects with requirements of the Securities Act and after the Escrow Release Date, whether or not required by Exchange Act and the rules and regulations promulgated thereunder and none of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be SEC Reports contained an untrue statement of a material fact required to be filed with stated therein or necessary to make the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing statements therein, in light of the foregoing reports by the Issuer on circumstances under which they were made, not misleading. The Company has delivered to CPG and Cantix or made available through the SEC’s ▇▇▇▇▇ filing system true and complete copies of the Company’s audited financial statements for the fiscal year ended December 31, 2008 (or any successor systemthe “Audited Financial Statements Date”) shall be deemed and unaudited financial statements for the quarter ended June 30, 2009 ((the “Quarterly Financial Statements Date”). Such audited financial statements, are referred to satisfy as the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified “Financial Statements.” The Financial Statements complied in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports all material respects with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, and the Issuer shall furnish rules and regulations of the Commission promulgated thereunder. Such Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the Holders extent they may not include footnotes or may be condensed or summary statements), and to prospective investors, upon fairly present in all material respects the requests financial position of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery Company as of any reports, information and documents to the Trustee will be for informational purposes only dates thereof and the Trustee’s receipt results of such shall not constitute constructive notice operations and cash flows for the periods then ended (subject, in the case of any information contained therein or determinable from information contained thereinunaudited statements, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificatesnormal year-end audit adjustments).
Appears in 1 contract
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) On and after the Escrow Release Date, whether or not required by the rules and regulations of the SECExchange Act, so long as if not filed electronically with the SEC through ▇▇▇▇▇ (or any Notes are outstandingsuccessor system), the Issuer will furnish Company shall provide to the Trustee and, upon written request, and the Holdersregistered Holders of the Notes, within 15 days of the time periods specified in the SEC’s rules and regulations for non-accelerated filersrelevant forms:
(1) all quarterly and annual reports financial information that would be required to be filed contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer Company were required to file such reportsForms (but without any requirement to provide separate financial statements of any Subsidiary of the Company), including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer Company were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoingAdditionally, the Company shall cause such documents to be filed with the SEC will unless the SEC shall not accept such filings documents. The requirement for any reasonthe Company to provide information may be satisfied by posting such reports, the Issuer will post the reports specified in the preceding sentence documents and information on its website within the time periods specified by this Section 3.2; provided, however, that would apply if the Issuer were required to file those reports with Company shall (upon request) provide one copy of the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything exhibits of the foregoing to the contrary, this Section 4.02 does not require Trustee and shall (upon request) provide additional copies of such exhibits to any Holder or prospective Holder. If the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that Company has designated any of the Issuer’s its Subsidiaries are as Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in Subsidiaries, either individually or collectively, would otherwise have been a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSignificant Subsidiary, then the quarterly and annual financial information required by Section 4.02
(a) will the preceding paragraph shall include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, to the financial statements and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant Operations and Financial Condition, of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Subsidiaries. In addition, at any time on the Company and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Subsidiary Guarantors shall furnish make available to the Holders and to prospective investors, upon the requests request of such Holders, any the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
. The Company shall also hold a quarterly conference call for the Holders of the Notes to discuss financial information for the previous quarter. The conference call shall be following the last day of each fiscal quarter of the Company and not later than ten business days from the time that the Company distributes the financial information as set forth in clause (d1) Delivery above. No fewer than three days prior to the conference call, the Company shall issue a press release announcing the time and date of such conference call and providing instructions for holders of Notes, securities analysts and prospective investors to obtain access to such call. For the avoidance of doubt, the Company may satisfy the requirements of this paragraph by holding the conference call required above within the time period required as part of any reports, information and documents to earnings call of the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance Company in accordance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)past practice.
Appears in 1 contract
Sources: Indenture (Blockbuster Inc)
SEC Reports. (a) On Purchaser has filed all reports, schedules, registration statements, prospectuses and after the Escrow Release Dateother documents, whether or not required by the rules and regulations of the SECtogether with amendments thereto, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if since December 31, 2015 (the Issuer were required to file such reports; and
(2“Purchaser Reports”). Except as set forth in Section 4.7(a) all current reports that would be required to be filed of the Purchaser Disclosure Schedule, as of their respective dates of filing with the SEC on Form 8-K (or, if amended or superseded by a subsequent filing prior to the Issuer were required to file such reports; provided that the electronic filing date hereof, as of the foregoing reports by date of such subsequent filing), the Issuer on Purchaser Reports complied, and each Purchaser Report filed subsequent to the SEC’s date hereof and prior to the Effective Time will comply, in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”) the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the S▇▇▇▇▇▇▇-▇▇▇▇▇ system Act of 2002 (the “S▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and the D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and did not or will not, as the case may be, contain any successor system) shall untrue statement of a material fact or omit to state a material fact required to be deemed stated therein or necessary to satisfy make the Issuer’s delivery obligations to statements therein, in light of the Trustee and any Holdercircumstances under which they were made, it being understood that the Trustee shall not be responsible for determining whether such filings have been mademisleading. IfThere are no outstanding comments from, notwithstanding the foregoingor unresolved issues raised by, the SEC will not accept such filings for with respect to any reason, of the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were Purchaser Reports. None of Purchaser’s Subsidiaries is required to file those periodic reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section Sections 13 or 15(d) of the Exchange Act, . No executive officer of Purchaser has failed in any respect to make the Issuer shall furnish certifications required of him or her under Sections 302 or 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and to the Holders and Knowledge of Purchaser, no enforcement action has been initiated against Purchaser or its officers or directors by the SEC relating to prospective investors, upon the requests of such Holders, disclosures contained in any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActPurchaser Report.
(db) Delivery The records, systems, controls, data and information of Purchaser and its Subsidiaries are recorded, stored, maintained and operated under means (including any reportselectronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Purchaser or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to have a materially adverse effect on the system of internal accounting controls described in the following sentence. Except as set forth in Section 4.7(b) of the Purchaser Disclosure Schedule, Purchaser and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as set forth in Section 4.7(b) of the Purchaser Disclosure Schedule, Purchaser has designed disclosure controls and procedures (within the meaning of Rules 13a-15(e) and 15d-15(e) promulgated under the Exchange Act) to ensure that material information relating to Purchaser and documents its Subsidiaries is made known to the Trustee will be for informational purposes only management of Purchaser by others within those entities as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Exchange Act with respect to the Purchaser Reports. Management of Purchaser has disclosed, based on its most recent evaluation prior to the date hereof, to Purchaser’s auditors and the Trusteeaudit committee of Purchaser’s receipt Board of such shall not constitute constructive notice Directors (1) any significant deficiencies in the design or operation of internal controls which could adversely affect in any information contained therein or determinable from information contained thereinmaterial respect Purchaser’s ability to record, including the Issuerprocess, summarize and report financial data and have identified for Purchaser’s compliance auditors any material weaknesses in internal controls, with any of its covenants hereunder such significant deficiencies and material weaknesses having previously been disclosed in the Purchaser Reports, and (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)2) any fraud, whether or not material, that involves management or other employees who have a significant role in Purchaser’s internal controls.
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations Company is subject to the reporting requirements of Section 13 or 15(d) of the SEC, so long as any Notes are outstandingExchange Act, the Issuer Company will furnish file with the SEC (subject to the next sentence) and provide the Trustee andand Securityholders with such annual reports and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, upon written requestsuch reports to be so filed and provided that the times specified for the filings of such reports under such Sections and containing in all material respects, all the information, audit reports and exhibits required for such reports. If at any time, the HoldersCompany is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in the preceding sentence with the SEC within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with unless the SEC on Forms 10-Q and 10-K if will not accept such a filing. The Company agrees that it will not take any action for the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with purpose of causing the SEC on Form 8-K if the Issuer were required not to file accept any such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been madefilings. If, If notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer Company will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer Company were required to file those reports with the SEC. Notwithstanding the foregoing, the Company may satisfy such requirements prior to the effectiveness of any registration statement filed pursuant to the Registration Rights Agreement entered into on the Issue Date by filing with the SEC the registration statement, to the extent that any such registration statement contains substantially the same information as would be required to be filed by the Company if it were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, and by providing the Trustee and Securityholders with such registration statement (and any amendments thereto) promptly following the filing thereof. In addition, in the event that:
(a) the rules and regulations of the SEC permit a “non-accelerated filer.”parent entity to report at such parent entity's level on a consolidated basis, and
(b) Notwithstanding anything such parent entity is a Guarantor of the Securities and is not engaged in any business in any material respect other than incidental to its ownership of the contraryCapital Stock of the Company, such consolidated reporting by such parent entity in a manner consistent with that described in this Section 4.02 does not require for the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer Company will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to satisfy this Section 4.02(a)(1) above4.02. At any time that any of the Issuer’s Company's Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amountSubsidiaries, then the quarterly and annual financial information required by Section 4.02
(a) the preceding paragraph will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “"Management’s 's Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant ," of the financial condition and results of operations of the Issuer Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) Company. In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall furnish to the Holders Holder of the Securities and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as any Securities are not freely transferable under the Securities Act.
. The Company also shall comply with the other provisions of TIA (dSection) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates314(a).
Appears in 1 contract
SEC Reports. Buyer has filed with the SEC all forms, reports and documents required to be filed by Buyer since January 1, 2013 (acollectively, the “Buyer SEC Reports”). As of their respective dates, the Buyer SEC Reports (i) On were prepared in all material respects in accordance with the requirements of the Securities Act or the Securities Exchange Act, as the case may be, and after the Escrow Release Date, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, SEC thereunder applicable to such Buyer SEC Reports and (ii) did not at the Issuer will furnish time they were filed (or if amended or superseded by a filing prior to the Trustee anddate of this Agreement, upon written request, then on the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1date of such filing) all quarterly and annual reports that would be contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except to the extent set forth in the preceding sentence, Buyer makes no representation or warranty whatsoever concerning any Buyer SEC Report as of any time other than the date or period with respect to which it was filed. None of Buyer’s subsidiaries is required to file any forms, reports or other documents with the SEC. The chief executive officer and the chief financial officer of Buyer have signed, and Buyer has filed with the SEC on Forms 10-Q and 10-K if the Issuer were SEC, all certifications required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing by Section 906 of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (Act of 2002 and such certifications contain no qualifications or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations exceptions to the Trustee matters certified therein and any Holder, it being understood that the Trustee shall have not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 modified or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes theretowithdrawn, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with neither Buyer nor any of its covenants hereunder (as officers has received notice from any Governmental Body questioning or challenging the accuracy, completeness, form or manner of filing of such certifications. As used in this Section 2.2(g), the term “file” shall be broadly construed to include any manner in which a document or information is filed with the Trustee will be entitled to rely exclusively on Officers’ Certificates)SEC.
Appears in 1 contract
SEC Reports. The Company’s Common Stock has been registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the Company is subject to the periodic reporting requirements of Section 13 of the Exchange Act.
(a) On and after the Escrow Release DateSince July 11, whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding2003, the Issuer will furnish to the Trustee andCompany has timely filed all forms, upon written request, the Holders, within the time periods specified in the SEC’s rules reports and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be documents required to be filed with the SEC by applicable law including, without limitation, the periodic reporting requirements of Section13 of the Exchange Act. All such required forms, reports and documents (including the financial statements, exhibits and schedules thereto and those documents that the Company may file subsequent to the date hereof) are collectively referred to herein as the “Company SEC Filings.” As of their respective dates, the Company SEC Filings (i) were prepared in accordance with the requirements of the Securities Act or Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Filings in all material respects, and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the Closing, then on Forms 10-Q and 10-K if the Issuer were required date of such filing) contain any untrue statement of a material fact or omit to file such reports; and
(2) all current reports that would be state a material fact required to be filed stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) Each of the financial statements (including, in each case, any related notes thereto) contained in the Company SEC Filings, as of their respective dates, (i) complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) was prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 810-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of Q under the Exchange Act, ) and (iii) fairly presented the Issuer shall furnish to financial position of the Holders and to prospective investors, upon Company at the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only respective dates thereof and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any consolidated results of its covenants hereunder (as operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which the Trustee will be entitled were not, or are not expected to rely exclusively on Officers’ Certificates)be, material in amount.
Appears in 1 contract
SEC Reports. (a) On and after the Escrow Release Date, whether Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer Company shall furnish file with the SEC (subject to the next sentence) and provide the Trustee and Holders with such annual and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to prospective investorsa U.S. corporation subject to such Sections, upon such reports to be so filed and provided at the requests times specified for the filings of such Holdersreports under such Sections and containing all the information, audit reports and exhibits required for such reports. If, at any time, the Company is not subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall provide the Trustee and Holders with such reports within the time periods specified in such Exchange Act sections for a registrant that is not an accelerated filer or a large accelerated filer; provided, however, that
(i) no certifications or attestations concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required (provided further, however, that nothing contained in the terms herein shall otherwise require the Company to comply with the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 at any time when it would not otherwise be subject to such statute);
(ii) the financial statements required of acquired businesses shall be limited to the financial statements (in whatever form) that the Company receives in connection with the applicable acquisition, whether or not audited;
(iii) no financial statements of unconsolidated entities shall be required;
(iv) no financial schedules specified in Regulation S-X under the Securities Act shall be required;
(v) the Company may limit the information disclosed in such reports in respect of Item 402 of Regulation S-K under the Securities Act to the information identified in Item 402 that is included other than through incorporation by reference in the Offering Memorandum (which disclosure regarding such types of information shall be presented in a manner consistent in all material respects with the disclosure so contained in the Offering Memorandum);
(vi) compliance with the requirements of Item 10(e) of Regulation S-K and Regulation G under the Securities Act shall not be required (but the Company shall provide a reconciliation to any non‑GAAP financial measures as defined in Regulation G under the Securities Act);
(vii) information specified in Rules 3-10 and 3-16 of Regulation S-X under the Securities Act with respect to Subsidiaries and affiliates shall not be required; and
(viii) no exhibits pursuant to Item 601 of Regulation S-K under the Securities Act (other than in respect of instruments defining the rights of security holders to the extent such instruments would be required to be filed by paragraph (b)(4) of such Item 601 and material contracts to the extent such contracts would be required to be filed by paragraph (b)(10) of such Item 601) shall be required; provided, however, that contracts required to be filed only by either or both of paragraph (b)(10)(ii)(A) and paragraph (b)(10)(iii) of such Item 601 shall not be required. References in the immediately-preceding clauses (i) through (viii) to statutory or regulatory provisions include any successor provisions. Notwithstanding anything to the contrary, so long as the Company is a consolidated Subsidiary of a direct or indirect parent company for financial reporting purposes, the reports and other information required to be delivered filed, provided or furnished pursuant to Rule 144A(d)(4the first paragraph of this Section 4.02(a) under may, at the Securities Act.
option of the Company, be those of such parent company, rather than those of the Company, and, if the Company so elects in any such case, may be filed, provided or furnished by such parent company; provided that financial information of such parent company so filed, provided or furnished include a reasonable explanation of the material differences (dif any) Delivery of any reportsbetween the information relating to such parent company, on the one hand, and the information and documents relating to the Trustee will be for informational purposes only Company and its consolidated Subsidiaries on a standalone basis, on the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)other hand.
Appears in 1 contract
Sources: Indenture (Credit Acceptance Corp)
SEC Reports. (a) On and after Notwithstanding that the Escrow Release Date, whether or Company may not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Issuer shall furnish Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Company is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. The Company will also, within 15 days after the date on which the Company was so required to file or would be so required to file if the Company were so subject, transmit by mail to all Holders, as their names and addresses appear in the Note Register, and to the Holders Trustee (or make available on a Company website) copies of any such information, documents and reports (without exhibits) so required to prospective investorsbe filed. Notwithstanding the foregoing, upon the requests of such Holders, if any audited or reviewed financial statements or information required to be delivered included in any such filing are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to Rule 144A(d)(4the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information, provided that (a) the Company shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the “Reporting Date”) and (b) if the Company makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Company will be deemed to have satisfied the requirements of this Section 6.4 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company is not required to file such reports, documents and information separately under the Securities Act.
applicable rules and regulations of the SEC (dafter giving effect to any exemptive relief) because of the filings by such Parent. The Company also will comply with the other provisions of TIA § 314(a). Delivery of any such reports, information and documents to the Trustee will shall be for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the IssuerCompany’s compliance with any of its covenants hereunder under the Indenture or the Notes (as to which the Trustee will shall have no duty to monitor and shall be entitled to rely exclusively on Officers’ Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s, the Co-Issuer’s or any other person’s compliance with the covenants in the Indenture or to determine whether any such reports, information or other documents are filed with the SEC through the SEC’s ▇▇▇▇▇ filing system (or any successor filing system) or posted on any website, on Intralinks or any comparable password-protected online data system or to examine such reports, information or documents to ensure compliance with the provisions of the Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein or to participate in any conference calls.
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Sally Beauty Holdings, Inc.)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (a) On and after or such shorter period as the Escrow Release Date, whether or not Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension, except where the failure to file on a timely basis would not have or reasonably be expected to result in a Material Adverse Effect (including, for this purpose only, any failure to qualify to register the Securities for resale on Form S-3 or which would prevent any Purchaser from using Rule 144 to resell any Securities). As of their respective filing dates, or to the extent corrected by a subsequent restatement, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SECCommission promulgated thereunder, so long and none of the SEC Reports, except as disclosed therein, when filed, contained any Notes are outstanding, the Issuer will furnish untrue statement of a material fact or omitted to the Trustee and, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be state a material fact required to be filed with stated therein or necessary in order to make the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing statements therein, in light of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holdercircumstances under which they were made, it being understood that the Trustee shall not be responsible for determining whether such filings have misleading. The Company has never been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(c) In addition, at any time on and after the Escrow Release Date when the Issuer is not an issuer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4144(i) under the Securities Act.
(d) Delivery . Each of the Material Contracts to which the Company or any reports, information and documents Subsidiary is a party or to which the Trustee will be for informational purposes only and property or assets of the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein Company or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (Subsidiaries are subject has been filed as an exhibit to which the Trustee will be entitled to rely exclusively on Officers’ Certificates)SEC Reports.
Appears in 1 contract
Sources: Securities Purchase Agreement (Atara Biotherapeutics, Inc.)
SEC Reports. (a) On and after Since September 28, 2015, the Escrow Release DateCompany has filed or furnished (as applicable) SEC Reports at or prior to the time so required.
(b) Each SEC Report complied, whether or not required by as the rules and regulations case may be, as of its filing date, as to form in all material respects with the applicable requirements of the SECSecurities Act or the Exchange Act, so long as any Notes are outstandingthe case may be, the Issuer will furnish to the Trustee and, upon written request, the Holders, within the time periods specified and in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required to be filed material respects with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports; provided that the electronic filing applicable provisions of the foregoing reports by the Issuer on the SEC’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ system (or any successor system) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any HolderAct, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified each as in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1) above. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amount, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either effect on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or elsewhere in reports provided by the Issuer pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuerdate such SEC Report was filed.
(c) In additionAs of its filing date (or, at if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded filing), each SEC Report did not contain any time on and after untrue statement of a material fact or omit to state any material fact necessary in order to make the Escrow Release Date when statements made therein, in the Issuer light of the circumstances under which they were made, not misleading.
(d) Since September 28, 2015, through the date hereof, neither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Entity (i) any written comments that have not been resolved with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC or (ii) other than in the case of written comments with respect to SEC Reports or registration statements that have been resolved, any written notice that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the Company, there is not not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Entity of any SEC Reports (including the financial statements included therein).
(e) No Subsidiary of the Company is subject to the reporting requirements of Section 13 13(a) or Section 15(d) of the Exchange Act, the Issuer shall furnish to the Holders and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(df) Delivery No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any reportsSEC Report, information except as disclosed in certifications filed with the SEC Reports, and documents to at the Trustee will be for informational purposes only time of filing or submission of each such certification, such certification was true and accurate and complied with the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Neither the Issuer’s compliance with Company nor any of its covenants hereunder (as to which executive officers has received any written notice from any Governmental Entity challenging or questioning the Trustee will be entitled to rely exclusively on Officers’ Certificates)accuracy, completeness, form or manner of filing of such certifications.
Appears in 1 contract
Sources: Merger Agreement (Microsemi Corp)
SEC Reports. (aNotwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) On or 15(d) of the Exchange Act, from and after the Escrow Release Issue Date, whether the Company shall file with the SEC (unless such filing is not permitted under the Exchange Act or not required by the rules and regulations of the SEC), so long as any Notes are outstanding, the Issuer will furnish annual reports, quarterly reports and other documents which the Company would have been required to file with the SEC pursuant to the Trustee andreporting requirements of such Section 13(a) or 15(d) if the Company were so subject, upon written request, the Holders, within the time periods specified in the SEC’s rules and regulations for non-accelerated filers:
(1) all quarterly and annual reports that would be required such documents to be filed with the SEC on Forms 10-Q and 10-K if or prior to the Issuer were respective dates by which the Company would have been required so to file such reportsdocuments if the Company were so subject; and
provided that if the Company is a "foreign private issuer" (2as such term is defined in Rule 3b-4 under the Exchange Act) all current reports that would be required to be filed the Company will file with the SEC on Form 8-K if (unless such filing is not permitted under the Issuer were required to file such reports; provided that Exchange Act or by the electronic filing SEC) the following reports by the dates indicated in satisfaction of the foregoing obligation to file reports by and other documents: (i) within 120 days from the Issuer end of each fiscal year, an annual report on the SEC’s ▇▇▇▇▇ system Form 20-F (or any successor systemform) shall be deemed to satisfy the Issuer’s delivery obligations to the Trustee and any Holder, it being understood that the Trustee shall not be responsible for determining whether such filings have been made. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Issuer were required to file those reports with the SEC as a “non-accelerated filer.”
(b) Notwithstanding anything to the contrary, this Section 4.02 does not require the Issuer to comply with Rule 3-10 or Rule 3-16 of Regulation S-X (or any successor provision), or to provide separate financial statements of any Guarantor; provided that the Issuer will continue to provide qualitative information on non-Guarantor Subsidiaries substantially consistent with containing the information provided in the Offering Memorandum in the reports required to be delivered pursuant to Section 4.02(a)(1contained therein for such fiscal year, and (ii) above. At any time that any within 60 days after the end of each of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and the EBITDA of such Unrestricted Subsidiaries (determined first three quarters in a manner consistent with the definition of EBITDA in this Indenture) account collectively for more than 1.0% of the Issuer’s corresponding consolidated amounteach fiscal year, then the quarterly and annual financial information required by Section 4.02
(a) will include a reasonably detailed quantitative presentation, either reports on the face of the Form 6-K containing unaudited financial statements or (including a balance sheet and statement of income, changes in the footnotes thereto, stockholders' equity and in “cash flows) and Management’s 's Discussion and Analysis of Financial Condition and Results of Operations” Operations for and as of the end of such quarters (with comparable financial statements for such quarter of the immediately preceding fiscal year). The Company will also, within 15 days after the date on which the Company files such reports, transmit by mail to all Holders, as their names and addresses appear in the Note Register, and to the Trustee copies of any such information, documents and reports (without exhibits) (or, in lieu of one or elsewhere more of the quarterly reports for fiscal 2003, a registration statement filed with the SEC under the Securities Act or any amendment thereto, provided such registration statement or amendment contains the information that would have been included in reports provided each such report). The Company will be deemed to have satisfied such requirements if a Parent files and provides reports, documents and information of the types otherwise so required to be filed by the Issuer Company, or of the types required to be filed by a U.S. issuer with the SEC pursuant to this covenant of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer.
(cSection 13(a) In addition, at any time on and after the Escrow Release Date when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, in each case within the Issuer shall furnish applicable time periods, and the Company is not required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any exemptive relief) because of the filings by such Parent. The Company (and, to the Holders and to prospective investorsextent required under the TIA, any other obligor upon the requests Notes) also shall comply with the other provisions of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of any reports, information and documents to the Trustee will be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee will be entitled to rely exclusively on Officers’ CertificatesTIA Section 314(a).
Appears in 1 contract
Sources: Indenture (Dirsamex Sa De Cv)