Common use of Commission Reports; Financial Statements Clause in Contracts

Commission Reports; Financial Statements. The Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the Commission since January 1, 2005, pursuant to the reporting requirements of the Exchange Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits) incorporated by reference therein, being hereinafter referred to herein as the "Commission Reports"). The Purchaser has had access to true and complete copies of the Commission Reports. As of their respective dates, the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005 complied in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission promulgated thereunder applicable to the Commission Reports, and none of the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at the time they were filed with the Commission, 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 misleading. As of their respective dates, the financial statements of the Company included in the Commission Reports complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States, consistently applied, 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 extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).

Commission Reports; Financial Statements. The Company has timely filed (a) Whether or not required by the Commission, the Borrower will furnish to the Agent (unless otherwise publicly available on or through the Commission’s XXXXX system) within 30 days after the time periods specified in the Commission’s rules and regulations: (i) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Borrower were required to file such reports, schedulesincluding a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, formsand, with respect to the annual information only, a report on the annual financial statements and other documents by the Borrower’s certified independent accountants; and (ii) all current reports that would be required to be filed by it with the Commission since January 1on Form 8-K if the Borrower were required to file such reports. (b) On request from the Agent, 2005, the Borrower shall provide the Agent with a sufficient number of copies of all reports and other documents and information that the Agent may be required to deliver to Lenders pursuant to this Agreement, if any are so required. (c) To the reporting requirements extent it is required to file them with the Commission, the Borrower will furnish to the Agent (unless otherwise publicly available on or through the Commission’s XXXXX system), within 30 days after the time periods specified in the Commission’s rules and regulations, 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 Commission may from time to time by rules and regulations prescribe) which the Borrower may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. (d) If it is not required to file information, documents, or reports with the Commission pursuant to either Section 13 or Section 15(d) of the Exchange Act, then the Borrower will file with the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act (all in respect of the foregoing filed prior a debt security listed and registered on a national securities exchange as may be prescribed from time to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits) incorporated by reference therein, being hereinafter referred to herein as the "Commission Reports"). The Purchaser has had access to true and complete copies of the Commission Reports. As of their respective dates, the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005 complied time in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be, and the such rules and regulations of the Commission promulgated thereunder applicable and will furnish to the Commission ReportsAgent (unless otherwise publicly available on or through the Commission’s XXXXX system), and none of the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at within 30 days after the time they were periods specified in the Commission’s rules and regulations, copies of all information, documents and reports so filed with the Commission. (e) Delivery of such reports, information and documents to the Agent is for informational purposes only and the Agent’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Borrower’s compliance with any untrue statement of a material fact its covenants or omitted the other provisions hereunder (as to state a material fact required which the Agent is entitled to rely exclusively on Officers’ Certificates). (f) No information delivered by the Borrower pursuant to this Section 5.02 may be designated by the Borrower to be stated therein or necessary in order to make the statements therein, in 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 Commission Reports complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States, consistently applied, 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 extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments)Confidential Information.

Commission Reports; Financial Statements. The (a) Whether or not required by the Commission, so long as any Notes are outstanding, the Company has timely filed will furnish to the Trustee, within 30 days after the time periods specified in the Commission's rules and regulations: (1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such reports, schedulesincluding a "Management's Discussion and Analysis of Financial Condition and Results of Operations", formsand, with respect to the annual information only, a report on the annual financial statements and other documents by the Company's certified independent accountants; and (2) all current reports that would be required to be filed by it with the Commission since January 1on Form 8-K if the Company were required to file such reports. (b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, 2005then the quarterly and annual financial information required by paragraph (a) will 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 Company and its Restricted Subsidiaries excluding in all respects the Unrestricted Subsidiaries of the Company. (c) On request from the Trustee, the Company shall provide the Trustee with a sufficient number of copies of all reports and other documents and information that the Trustee may be required to deliver to Holders pursuant to the reporting requirements Indenture, if any are so required. (d) Delivery of the Exchange Act (all of the foregoing filed prior such reports, information and documents to the date hereof Trustee is for informational purposes only and all exhibits included the Trustee's receipt of such shall not constitute constructive notice of any information contained therein and financial statements and schedules thereto and documents (other than exhibits) incorporated by reference or determinable from information contained therein, being hereinafter referred to herein as including the "Commission Reports"). The Purchaser has had access to true and complete copies Company's compliance with any of the Commission Reports. As of their respective dates, the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005 complied in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission promulgated thereunder applicable to the Commission Reports, and none of the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at the time they were filed with the Commission, 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 misleading. As of their respective dates, the financial statements of the Company included in the Commission Reports complied its covenants hereunder (as to form in all material respects with applicable accounting requirements and which the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States, consistently applied, 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, Trustee is entitled to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustmentsrely exclusively on Officers' Certificates).

Commission Reports; Financial Statements. The (a) Whether or not required by the Commission, so long as any Notes are outstanding, the Company has timely filed will furnish to the Trustee, within 15 days after the time periods specified in the Commission's rules and regulations: (i) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such reports, schedulesincluding a "Management's Discussion and Analysis of Financial Condition and Results of Operations" (or, formsif applicable to the Company for such filings at such time, or if such filings were required at such time, a "Management's Narrative and Analysis of Results of Operations"), and, with respect to the annual information only, a report on the annual financial statements and other documents by the Company's certified independent accountants; and (ii) all current reports that would be required to be filed by it with the Commission since January 1on Form 8-K if the Company were required to file such reports. (b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, 2005then the quarterly and annual financial information required by paragraph (a) will include a reasonably detailed presentation, pursuant to either on the reporting requirements 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, as applicable, in Management's Narrative and Analysis of Results of Operations), of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company. (c) In addition, following the consummation of the Exchange Act (Offer, whether or not required by the Commission, the Company will file a copy of all of the foregoing filed prior information and reports referred to in clauses (1) and (2) above with the Commission for public availability within the time periods specified in the Commission's rules and regulations (unless the Commission will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. In addition, the Company and the Guarantors will, for so long as any Notes remain outstanding, furnish to the date hereof Holders and all exhibits included therein to securities analysts and financial statements and schedules thereto and documents prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (other than exhibitsd) incorporated by reference therein, being hereinafter referred to herein as The Company shall provide the "Commission Reports"). The Purchaser has had access to true and complete Trustee with a sufficient number of copies of the Commission Reports. As of their respective dates, the Commission Reports and all other reports, schedules, forms, statements reports and other documents filed by it with and information that the Commission since January 1Trustee may be required to deliver to Holders under this Section. (e) Delivery of such reports, 2005 complied in all material respects with information and documents to the requirements of the Exchange Act or the Securities Act, as the case may be, Trustee is for informational purposes only and the rules and regulations Trustee's receipt of the Commission promulgated thereunder applicable to the Commission Reports, and none such shall not constitute constructive notice of the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at the time they were filed with the Commission, any information 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 determinable from information contained therein, in light including the Company's compliance with any of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the Commission Reports complied its covenants hereunder (as to form in all material respects with applicable accounting requirements and which the published rules and regulations of the Commission with respect thereto. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States, consistently applied, 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, Trustee is entitled to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustmentsrely exclusively on Officer's Certificates).

Commission Reports; Financial Statements. The Company Buyer has timely filed all reports, schedules, forms, statements and other documents reports required to be filed by it with under the Commission since January 1Securities Act and the Exchange Act, 2005, including pursuant to Section 13(a) or 15(d) thereof, for the reporting requirements of the Exchange Act (all of the foregoing filed prior to twelve months preceding the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibitsor such shorter period as Buyer was required by law to file such reports) incorporated by reference therein, (the foregoing materials being hereinafter collectively referred to herein as the "“Commission Reports"). The Purchaser ”) on a timely basis or has had access timely filed a valid extension of such time of filing and has filed any such Commission Reports prior to true and complete copies the expiration of the Commission Reportsany such extension. As of their respective dates, the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005 complied in all material respects with the requirements of the Securities Act and the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the U.S. Securities and Exchange Commission (“Commission”) promulgated thereunder applicable to the Commission Reportsthereunder, and none of the Commission Reports and all other reportsReports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at the time they were filed with the Commissionwhen 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 light of the circumstances under which they were made, not misleading. As of their respective dates, the The financial statements of the Company Buyer included in the Commission Reports complied as to form comply in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect theretothereto as in effect at the time of filing. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States, consistently applied, GAAP applied on a consistent basis during the periods involved (involved, except (i) as may be otherwise indicated specified in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company Buyer as of and for the dates thereof and the results of its operations and cash flows for the periods then ended (ended, subject, in the case of unaudited statements, to normal normal, immaterial, year-end audit adjustments).

Commission Reports; Financial Statements. The Company has timely filed all reports, schedules, forms, statements and other documents reports required to be filed by it with under the Commission since January 1Securities Act and the Exchange Act, 2005, including pursuant to Section 13(a) or 15(d) thereof, for the reporting requirements of the Exchange Act (all of the foregoing filed prior to twelve months preceding the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibitsor such shorter period as the Company was required by law to file such reports) incorporated by reference therein, (the foregoing materials being hereinafter collectively referred to herein as the "Commission Reports" and, together with the Schedules to this Agreement (if any), the "). The Purchaser Disclosure Materials") on a timely basis or has had access timely filed a valid extension of such time of filing and has filed any such Commission Reports prior to true and complete copies the expiration of the Commission Reportsany such extension. As of their respective dates, the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005 complied in all material respects with the requirements of the Securities Act and the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission promulgated thereunder applicable to the Commission Reportsthereunder, and none of the Commission Reports and all other reportsReports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at the time they were filed with the Commissionwhen 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 light of the circumstances under which they were made, not misleading. As of their respective dates, the The financial statements of the Company included in the Commission Reports complied as to form comply in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect theretothereto as in effect at the time of filing. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States, consistently applied, GAAP applied on a consistent basis during the periods involved (involved, except (i) as may be otherwise indicated specified in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of its operations and cash flows for the periods then ended (ended, subject, in the case of unaudited statements, to normal normal, immaterial, year-end audit adjustments).

Commission Reports; Financial Statements. The Company has timely filed all reports, schedules, forms, statements and other documents reports required to be filed by it with under the Commission since January 1Securities Act and the Exchange Act, 2005, including pursuant to Section 13(a) or 15(d) thereof, for the reporting requirements of the Exchange Act (all of the foregoing filed prior to twelve months preceding the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibitsor such shorter period as Company was required by law to file such reports) incorporated by reference therein, (the foregoing materials being hereinafter collectively referred to herein as the "“Commission Reports"). The Purchaser ”) on a timely basis or has had access timely filed a valid extension of such time of filing and has filed any such Commission Reports prior to true and complete copies the expiration of the Commission Reportsany such extension. As of their respective dates, the Commission Reports and all other reports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005 complied in all material respects with the requirements of the Securities Act and the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the U.S. Securities and Exchange Commission (“Commission”) promulgated thereunder applicable to the Commission Reportsthereunder, and none of the Commission Reports and all other reportsReports, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at the time they were filed with the Commissionwhen 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 light of the circumstances under which they were made, not misleading. As of their respective dates, the The financial statements of the Company included in the Commission Reports complied as to form comply in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect theretothereto as in effect at the time of filing. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States, consistently applied, GAAP applied on a consistent basis during the periods involved (involved, except (i) as may be otherwise indicated specified in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of its operations and cash flows for the periods then ended (ended, subject, in the case of unaudited statements, to normal normal, immaterial, year-end audit adjustments).

Commission Reports; Financial Statements. The Company (a) Seller has timely filed or will file with the Commission all reports, schedulesregistration statements, forms, information statements and other documents required to be filed by it (including exhibits and in each case together with all amendments thereto) (such reports, registration statements, information statements and all other documents, together with any amendments thereto, are collectively referred to as the “Seller Commission since Filings;” and all Seller Commission Filings made or required to be made from January 1, 2005, pursuant 2006 through the Closing Date are hereinafter referred to as the reporting requirements of the Exchange Act (“Subject Commission Filings”). The Subject Commission Filings constitute all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibitspreliminary materials) incorporated by reference therein, being hereinafter referred that Seller was or will be required to herein as the "Commission Reports"). The Purchaser has had access to true and complete copies of file with the Commission Reportsfrom January 1, 2006 to the Closing Date. As of their respective datesfiling dates (or if amended or superseded by a filing date, then on the filing date of such amending or superseding filing), the Subject Commission Reports Filings (i) were, and all other reportswill be, schedulesprepared in accordance, formsand complied, statements and other documents filed by it with the Commission since January 1or will comply, 2005 complied in all material respects respects, with the requirements of the Exchange Securities Act or the Securities Exchange Act, as the case may be, and the rules and regulations of the Commission promulgated thereunder applicable to the such Subject Commission ReportsFilings and (ii) did not, and none of the Commission Reports and all other reportswill not, schedules, forms, statements and other documents filed by it with the Commission since January 1, 2005, at the time they were filed with the Commission, contained contain any untrue statement of a material fact or omitted omit 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 misleading. As . (b) Each of their respective dates, the consolidated financial statements of the Company included (including, in each case, any related notes and schedules) contained or to be contained in the Subject Commission Reports Filings at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto. Such financial statements have been ; (ii) were or will be prepared in accordance with United States generally accepted accounting principles generally accepted as in the United States, consistently applied, during effect from time to time applied on a consistent basis throughout the periods involved (except (i) as may be otherwise indicated in the notes to such financial statements or the notes theretoor, or (ii) in the case of unaudited interim financial statements, to as permitted by the extent they may not include footnotes Commission on Form 10-Q or may be condensed Form 8-K under the Exchange Act); and (iii) fairly presented or summary statements) and will fairly present in all material respects the consolidated financial position of the Company Seller and its subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods then ended (subjectindicated, in except that the case of unaudited statements, interim financial statements were or are subject to normal and recurring year-end audit adjustmentsadjustments that Seller does not expect to be material, individually or in the aggregate. The consolidated, unaudited balance sheet of Seller as of September 30, 2008 is referred to herein as the “Seller Balance Sheet.” (c) Seller maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. To the Knowledge of Seller, such disclosure controls and procedures are effective to ensure that all material information concerning Seller is made known on a timely basis to the individuals responsible for the preparation of Seller’s filings with the Commission and other public disclosure documents. Except as set forth on Schedule 5.5(c), Seller is in compliance in all material respects with the listing requirements of NASDAQ and has not received any notice other than as already publicly disclosed regarding the possible delisting of the Seller’s common stock from NASDAQ.