Annual Reports The Company shall furnish to the Lenders as soon as available, and in any event within 90 days after the end of each fiscal year (or, if earlier, the date that is five (5) days after the date that the Company’s 10-K filing is required to be delivered to the SEC), the Consolidated balance sheets of the Company and its Subsidiaries as at the end of such fiscal year, the Consolidated statements of income and Consolidated statements of changes in shareholders’ equity and of cash flows of the Company and its Subsidiaries for such fiscal year (all in reasonable detail) and together, in the case of Consolidated financial statements, with comparative figures for the immediately preceding fiscal year, all accompanied by:
(i) Unqualified reports of Ernst & Young LLP (or, if they cease to be auditors of the Company and its Subsidiaries, other independent certified public accountants of recognized national standing reasonably satisfactory to the Required Lenders), containing no material uncertainty, to the effect that they have audited the foregoing Consolidated financial statements in accordance with generally accepted auditing standards and that such Consolidated financial statements present fairly, in all material respects, the financial position of the Company and its Subsidiaries covered thereby at the dates thereof and the results of their operations for the periods covered thereby in conformity with GAAP.
(ii) The statement of such accountants that they have caused this Agreement to be reviewed and that in the course of their audit of the Company and its Subsidiaries no facts have come to their attention that cause them to believe that any Default exists and in particular that they have no knowledge of any Default under Section 6.05 or, if such is not the case, specifying such Default and the nature thereof. This statement is furnished by such accountants with the understanding that the examination of such accountants cannot be relied upon to give such accountants knowledge of any such Default except as it relates to accounting or auditing matters within the scope of their audit.
(iii) A certificate of the Company signed by a Financial Officer to the effect that such officer has caused this Agreement to be reviewed and has no knowledge of any Default, or if such officer has such knowledge, specifying such Default and the nature thereof, and what action the Company has taken, is taking or proposes to take with respect thereto.
(iv) [intentionally omitted.]
(v) A Compliance Certificate in the form of Exhibit D demonstrating, as of the end of such fiscal year, compliance with the Computation Covenants, certified by a Financial Officer.
(vi) Financial information as to the assets of, and Investments of the Company and its Subsidiaries in, each Immaterial Subsidiary as of the end of such fiscal year, demonstrating that such Immaterial Subsidiary constitutes an “Immaterial Subsidiary”.
(vii) [intentionally omitted]
(viii) Supplements to Schedules 5.01 and 5.03 showing any changes in the information set forth in such Exhibits not previously furnished to the Lenders in writing, which supplement must be reasonably satisfactory to the Administrative Agent, as well as any changes in the Organization Documents or incumbency of officers of the Company or its Subsidiaries from those previously certified to the Administrative Agent.
(ix) In the event of a change in GAAP after June 30, 2006, computations by the Company, certified by a Financial Officer, reconciling the financial statements referred to above with financial statements prepared in accordance with GAAP as applied to the other covenants in Article VI and related definitions.
Financial Reports The Company shall, whether or not required by the rules and regulations of the Commission, so long as any Notes are outstanding under this Indenture, the Company shall furnish to the Holders and the Trustee the following information, such information, in each case, to comply in all material respects with the applicable requirements of the specified form:
(a) within 90 days after the end of each fiscal year (or if such day is not a Business Day, on the next succeeding Business Day), all financial information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed by the Company with the Commission, 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;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or if such day is not a Business Day, on the next succeeding Business Day), all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed by the Company with the Commission, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and financial statements prepared in accordance with GAAP; and
(c) all information required by current reports that would be required to be filed with the Commission by the Company on Form 8-K, or any successor or comparable form, if the Company were required to file such reports, in each case within five Business Days of the date on which time periods specified in the Commission’s rules and regulations. In addition, the Company shall, for so long as any Notes remain outstanding and constitute “restricted securities” under Rule 144 under the Securities Act, furnish to the Holders of the Notes, beneficial owners and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. So long as any Notes remain outstanding, the Company will also (i) within 15 Business Days after furnishing to the Trustee the annual and quarterly reports required by clauses (a) and (b) above, hold a conference call to discuss such reports and the results of operations for the relevant reporting period (which may be a single conference call together with investors and lenders holding other securities (including equity securities) or Indebtedness of the Company and/or its Restricted Subsidiaries) and (ii) post to its website or on IntraLinks or any comparable password-protected online data system, which will require a confidentiality acknowledgment, with a copy delivered to the Trustee, prior to the date of the conference call required to be held in accordance with clause (i) of this sentence, announcing the time and date of such conference call and either including all information necessary to access the call or informing holders, prospective investors, market makers affiliated with any initial purchaser and securities analysts how they can obtain such information, including, without limitation, the applicable password or other login information. The Company will be deemed to have furnished such information referred to above (including the immediately preceding paragraph) to the Trustee and the holders if the Company or any direct or indirect parent of the Company has filed such information with the Commission via the XXXXX (or successor) filing system and such information is publicly available. Delivery of such information and reports to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive or actual notice of any information contained therein or determinable from the information contained therein, including our compliance with any of the covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of such information or reports. The Trustee shall not be obligated to monitor or confirm, on 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 XXXXX or the Company’s website under this Indenture, or participate in any conference calls. To the extent any such reports referred to in clauses (a) through (c) under this Section 4.17 is not so filed or furnished, as applicable, within the time periods specified above and such reports are subsequently filed or furnished, as applicable, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default or Event of Default with respect thereto shall be deemed to have been cured.
