Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date, (1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC; (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC; (3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and (4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. (c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by: (1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or (2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 4 contracts
Samples: Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.), Indenture (Avago Technologies LTD), Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.)
Reports and Other Information. (a) Notwithstanding Holdings III shall provide (or cause its affiliates to provide) to the Trustee, unless available on the SEC’s Electronic Data Gathering, Analysis and Retrieval System (or successor system), copies (without exhibits) of the annual reports and information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that Holdings III is required to file with the Company may SEC pursuant to Section 13 or 15(d) of the Exchange Act within 15 days after the same is filed with the SEC.
(b) If, at any time, Holdings III is not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise does not report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company Holdings III shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them it would have been (if it were a non-accelerated filer subject to such reporting obligations) required to file such with the SEC) from and after the Issue Date,:
(1) within 90 days after annual and quarterly financial statements consistent with the end of each fiscal year (or such shorter period financial statements that would be applicable to have been included in reports on Form 10-K or Form 10-Q, as applicable, filed with the Company SEC if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (Act, including, with respect to annual information only, a “U.S. Filer”) as the SEC may report thereon by its certified independent public accountants, and, in the future prescribe)each case, an annual report on Form 10-K together with a management’s discussion and analysis of financial condition and results of operations consistent with that required pursuant to Item 303 (or any successor formthereto) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10of Regulation S-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;; and
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable promptly from time to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on containing all the appropriate form for reporting current events containing substantially the same information that would be required to be contained in Section 2, Section 4, Items 5.01 and 5.02 of Section 5 and Section 9 of Form 8-K (K, or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such formform (assuming Holdings III were a U.S. person); provided, however, that the Company (x) financial information required by Rule 3-16 (or any successor thereto) of Regulation S-X shall not be so obligated to file such reports with required and (y) no certifications or attestations concerning the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the Trustee and the Holders Xxxxxxxx-Xxxxx Act of the Notes, in each case within 15 days after the time the Company would 2002 (or any successor thereto) will be required to file be included in or accompany any such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Actfinancial statements. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will Holdings III shall furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bc) In the event that For so long as Holdings I, Holdings II or any other direct or indirect parent company of the Company becomes Holdings III is a guarantor of the NotesGuarantor, the Company may Holdings III shall be permitted to satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company Holdings III by furnishing financial information relating to Holdings I, Holdings II or such other parent; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings I, Holdings II or such other parent, on the one hand, and the information relating to the Company Holdings III and its Restricted Subsidiaries on a standalone basis, on the other hand.
(chand or, at Holdings III’s option, substantially in the form required by Rule 3-10(d) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, oror any successor thereto.
(2d) posting on its website or providing Notwithstanding anything herein to the Trustee within 15 contrary, Holdings III will not be deemed to have failed to comply with any of its obligations under this Section 4.03 for purposes of clause (3) under Section 6.01 until 120 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumdate any report is due under this Section 4.03.
Appears in 3 contracts
Samples: Indenture (Freescale Semiconductor Holdings I, Ltd.), Indenture (Freescale Semiconductor Inc), Indenture (Freescale Semiconductor Holdings I, Ltd.)
Reports and Other Information. (a) Notwithstanding that the Company Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, so long as any Notes are outstanding hereunder, the Company shall file Parent will furnish to the Second Lien Trustee and holders the following:
(i) within the time periods specified in the SEC’s rules and regulations for non-accelerated filers, all quarterly and annual financial information of the Parent that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor comparable forms) if the Parent were required to file such Forms; and
(ii) promptly from time to time after the occurrence of an event required to be therein reported (and in any event within the time periods specified in the SEC’s rules and regulations), current reports that would be required to be filed with the SEC on Form 8-K if the Parent were required to file such reports; provided that such reports will not be required to contain the separate financial information for the Issuers or the Guarantors contemplated by Rule 3-10 under Regulation S-X promulgated by the SEC (or any successor provision). In addition to providing such information to the Second Lien Trustee, the Parent shall make available to the Trustee and Holders holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to clauses (without exhibitsi) and (ii) of this paragraph, by posting such information to its website or on IntraLinks or any comparable online data system or website, it being understood that the Second Lien Trustee shall have no responsibility to determine if such information has been posted on any website.
(b) If the Parent has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Parent, then the annual and quarterly information required by clause (i) of the first paragraph of this covenant 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 Parent and the Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(c) In the event that:
(i) any direct or indirect parent of the Parent (together with its Subsidiaries other than the Parent and its Subsidiaries), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after had consolidated net sales of less than 2.5% of the consolidated net sales of such parent entity and all of its Subsidiaries for the most recently ended four fiscal quarter period of such parent entity; and
(2) had total assets (excluding investments in Subsidiaries, intercompany receivables, intercompany loan receivables, and any other item that would be eliminated in the consolidation of such parent entity’s consolidated financial statements) of less than 5.0% of the consolidated total assets of such parent entity and all of its Subsidiaries as of the end of each the most recently ended fiscal year quarter of such parent;
(ii) in connection with any reporting requirements described in clause (i) of Section 4.02(a), the Parent delivers consolidating financial information that explains, in a reasonable level of detail, the differences between the information relating to any direct or indirect parent entity of the Parent and such shorter period that would be applicable entity’s Subsidiaries other than the Parent and its Subsidiaries, on the one hand, and the information relating to the Company if it were Parent and its Subsidiaries on a U.S. company stand-alone basis, on the other hand; or
(iii) any direct or indirect parent of the Parent is or becomes a Guarantor of the Notes, consolidating reporting at such parent entity’s level in a manner consistent with that is not a foreign private issuer described in clause (i) of Section 4.02(a) for the Parent will satisfy the requirements of such clause. Upon the occurrence of the event described in clause (iii) above, the Parent may designate such parent entity as the new Parent by delivering an Officers’ Certificate to such effect to the Second Lien Trustee and that such parent entity shall thereafter be deemed to be the Parent for all purposes under this Indenture. If any direct or indirect parent of the Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)Act, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required then reporting by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, parent entity in a manner consistent with that complies described in all material respects with clause (ii) of Section 4.02(a) for the Parent will satisfy the requirements specified in of such form; providedclause.
(d) In addition, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company Parent will make available such information available to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesParent shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if Issue Date and for so long as any Notes remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(ce) Notwithstanding the foregoing, the requirements of Parent will be deemed to have furnished the reports referred to in this Section 4.03 shall be deemed satisfied prior 4.02 to the commencement of Second Lien Trustee and the Exchange Offer holders if the Parent has filed such reports with (or furnished such reports to) the effectiveness of SEC via the Shelf Registration Statement by:XXXXX filing system and such reports are publicly available, it being understood that the Second Lien Trustee shall have no responsibility to determine if such information has been posted on any website.
(1f) the filing with the SEC Delivery of the Exchange Offer Registration Statement or Shelf Registration Statementany reports, information and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing documents to the Second Lien Trustee within 15 days pursuant to this Section 4.02 is for informational purposes only and the Second Lien Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the time periods after Issuer’s compliance with any of its covenants under this Indenture (as to which the Company would have been required Second Lien Trustee is entitled to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumrely exclusively on Officers’ Certificates).
Appears in 3 contracts
Samples: Indenture (Mallinckrodt PLC), Indenture (Mallinckrodt PLC), Indenture (Mallinckrodt PLC)
Reports and Other Information. (a) Notwithstanding that the Company Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, so long as any Notes are outstanding hereunder, the Company shall file Parent will furnish to the First Lien Trustee and holders the following:
(i) within the time periods specified in the SEC’s rules and regulations for non-accelerated filers, all quarterly and annual financial information of the Parent that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor comparable forms) if the Parent were required to file such Forms; and
(ii) promptly from time to time after the occurrence of an event required to be therein reported (and in any event within the time periods specified in the SEC’s rules and regulations), current reports that would be required to be filed with the SEC on Form 8-K if the Parent were required to file such reports; provided that such reports will not be required to contain the separate financial information for the Issuers or the Guarantors contemplated by Rule 3-10 under Regulation S-X promulgated by the SEC (or any successor provision). In addition to providing such information to the First Lien Trustee, the Parent shall make available to the Trustee and Holders holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to clauses (without exhibitsi) and (ii) of this paragraph, by posting such information to its website or on IntraLinks or any comparable online data system or website, it being understood that the First Lien Trustee shall have no responsibility to determine if such information has been posted on any website.
(b) If the Parent has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Parent, then the annual and quarterly information required by clause (i) of the first paragraph of this covenant 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 Parent and the Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(c) In the event that:
(i) any direct or indirect parent of the Parent (together with its Subsidiaries other than the Parent and its Subsidiaries), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after had consolidated net sales of less than 2.5% of the consolidated net sales of such parent entity and all of its Subsidiaries for the most recently ended four fiscal quarter period of such parent entity; and
(2) had total assets (excluding investments in Subsidiaries, intercompany receivables, intercompany loan receivables, and any other item that would be eliminated in the consolidation of such parent entity’s consolidated financial statements) of less than 5.0% of the consolidated total assets of such parent entity and all of its Subsidiaries as of the end of each the most recently ended fiscal year quarter of such parent;
(ii) in connection with any reporting requirements described in clause (i) of Section 4.02(a), the Parent delivers consolidating financial information that explains, in a reasonable level of detail, the differences between the information relating to any direct or indirect parent entity of the Parent and such shorter period that would be applicable entity’s Subsidiaries other than the Parent and its Subsidiaries, on the one hand, and the information relating to the Company if it were Parent and its Subsidiaries on a U.S. company stand-alone basis, on the other hand; or
(iii) any direct or indirect parent of the Parent is or becomes a Guarantor of the Notes, consolidating reporting at such parent entity’s level in a manner consistent with that is not a foreign private issuer described in clause (i) of Section 4.02(a) for the Parent will satisfy the requirements of such clause. Upon the occurrence of the event described in clause (iii) above, the Parent may designate such parent entity as the new Parent by delivering an Officers’ Certificate to such effect to the First Lien Trustee and that such parent entity shall thereafter be deemed to be the Parent for all purposes under this Indenture. If any direct or indirect parent of the Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)Act, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required then reporting by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, parent entity in a manner consistent with that complies described in all material respects with clause (ii) of Section 4.02(a) for the Parent will satisfy the requirements specified in of such form; providedclause.
(d) In addition, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company Parent will make available such information available to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesParent shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if Issue Date and for so long as any Notes remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(ce) Notwithstanding the foregoing, the requirements of Parent will be deemed to have furnished the reports referred to in this Section 4.03 shall be deemed satisfied prior 4.02 to the commencement of First Lien Trustee and the Exchange Offer holders if the Parent has filed such reports with (or furnished such reports to) the effectiveness of SEC via the Shelf Registration Statement by:XXXXX filing system and such reports are publicly available, it being understood that the First Lien Trustee shall have no responsibility to determine if such information has been posted on any website.
(1f) the filing with the SEC Delivery of the Exchange Offer Registration Statement or Shelf Registration Statementany reports, information and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing documents to the First Lien Trustee within 15 days pursuant to this Section 4.02 is for informational purposes only and the First Lien Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the time periods after Issuer’s compliance with any of its covenants under this Indenture (as to which the Company would have been required First Lien Trustee is entitled to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumrely exclusively on Officers’ Certificates).
Appears in 3 contracts
Samples: Indenture (Mallinckrodt PLC), Exchange Agreement (Mallinckrodt PLC), Indenture (Mallinckrodt PLC)
Reports and Other Information. (a) Notwithstanding that the Company LGEC may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, to the Company shall extent permitted by the Exchange Act, LGEC will file with the SEC (SEC, and make available to the Trustee and Holders through its publicly available website, the annual reports and the information, documents and other reports (or copies of such portions of any of the Notes (without exhibits)foregoing as the SEC may by rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act with respect to U.S. issuers within the time periods specified therein or in the relevant forms. In the event that LGEC is not permitted to file such reports, without cost to any Holder, within 15 days after the Company files them documents and information with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable SEC pursuant to the Company Exchange Act, LGEC will nevertheless make available such Exchange Act reports, documents and information to the Trustee and the Holders through its publicly available website as if it LGEC were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified therein or in the relevant forms, which requirement may be satisfied by posting such reports, documents and information on Form 8-K after its website within the occurrence time periods specified by this Section 4.03. For the avoidance of an event doubt, the information and reports referred to in this Section 4.03(a) shall not be required to contain separate financial information for Guarantors that would be therein reported, such other reports on required under Rule 3-10 of Regulation S-X promulgated by the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K SEC (or any successor formprovision).
(b) that would be The Trustee shall have no responsibility to determine if and when any of the reports required if by (a) above have been filed or posted on any website. Delivery of the Company were a U.S. Filer; provided, that reports required by (a) above to the Trustee is for informational purposes only and the Trustee’s receipt of such reports may will not constitute constructive notice of any information contained therein or determinable from information contained therein, including LGEC’s or any other parties’ compliance with any of its covenants in this Indenture (as to which the Trustee will be furnished, rather than filed, entitled to the extent U.S. Filers rely exclusively on Officers’ Certificates that are permitted to do so by the SEC; anddelivered).
(4c) If any of LGEC’s Subsidiaries have been designated as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then LGEC shall provide, either (in its discretion) (1) on LGEC’s investor relations website or (2) in the annual and quarterly reports required by Section 4.03(a), within the applicable period after each fiscal quarter or fiscal year for the delivery of quarterly or annual financial information under Section 4.03(a), a reasonably detailed presentation, as determined in good faith by senior management of LGEC, of the financial condition and results of operations of LGEC, the other informationGuarantors, documents the Issuer and other reports that the Company would be required to file with Restricted Subsidiaries separate from the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to financial condition and results of operations of the extent U.S. Filers are permitted to do so by Unrestricted Subsidiaries.
(d) The Issuer and the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company Guarantors will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their requestthe 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, the Issuer and the Guarantors will be deemed to have furnished the reports to the Holders as required by this Section 4.03 if LGEC has filed such reports with the SEC via the XXXXX or any successor filing system and such reports are publicly available.
(be) In the event that that: (1) the rules and regulations of the SEC permit LGEC and any direct or indirect parent company of LGEC to report at such parent entity’s level on a consolidated basis and such parent entity is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the Company capital stock of LGEC, or (2) any direct or indirect parent of LGEC is or becomes a guarantor Guarantor of the Notes, the Company may consolidating reporting at such parent entity’s level in a manner consistent with that described above in this Section 4.03 for LGEC will satisfy this Section 4.03, and LGEC is permitted to satisfy its obligations under in this Section 4.03 with respect to financial information relating to the Company LGEC by furnishing financial information relating to such direct or indirect parent; provided, however provided that the same such financial information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentdirect or indirect parent and any of its Subsidiaries other than LGEC and its Subsidiaries, on the one hand, and the information relating to the Company LGEC and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 3 contracts
Samples: Indenture (Lions Gate Entertainment Corp /Cn/), Indenture (Lions Gate Entertainment Corp /Cn/), Indenture (Lions Gate Entertainment Corp /Cn/)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to the rules and regulations promulgated by the SEC, the Company shall will file with the SEC within the time periods (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to including any Holder, within 15 days after the Company files them with grace period or extension permitted by the SEC) from specified in the SEC’s rules and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period regulations that would be are then applicable to the Company (or if it were a U.S. company that the Company is not a foreign private issuer and that is then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, then the time periods for filing applicable to a filer that is not an “accelerated filer” as defined in such rules and regulations):
(a “U.S. Filer”1) as the SEC may all financial information that would be required to be contained in the future prescribe), an annual report on Form 10-K (K, or any successor or comparable form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC, including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period all financial information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-Kor any successor or comparable form, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;, including a “Management’s discussion and analysis of financial condition and results of operations” section; and
(3) within all current reports that would be required to be filed with the time periods specified SEC on Form 8-K after the occurrence of an event required to be therein reportedK, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor or comparable form) that would be required , if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; providedsuch reports.
(b) Notwithstanding Section 4.06(a), that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall will not be so obligated to file such reports with the SEC if the SEC does not permit such filingfilings, in which event so long as the Company will make available such information to prospective purchasers of Notes, in addition to providing provides such information to the Trustee and the Holders and makes available such information to prospective purchasers of the Notes, in each case within 15 days after at the time Company’s expense and by the applicable date the Company would be required to file such information with the SEC, if it were subject pursuant to Section 13 or 15(d) of the Exchange Act4.06(a). In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it the Company will furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, 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.
(bc) In the event that any direct or indirect parent company of The requirements set forth in Sections 4.06(a) and 4.06(b) may be satisfied by the Company becomes posting the required reports on its website or delivering such information to the Trustee and posting copies of such information on any website (which may be nonpublic and may be maintained by the Company or a guarantor third party) to which access will be given to Holders, securities analysts and prospective purchasers of the Notes, in each case within the time periods that would apply if the Company may satisfy were required to file those reports with the SEC.
(d) In addition, no later than ten Business Days after the date the annual and quarterly financial information for the prior fiscal period have been furnished pursuant to Section 4.06(a)(1) or (2), the Company shall also hold live quarterly conference calls with the opportunity to ask questions of management; provided that, as long as the Company holds quarterly conference calls for investors in its obligations under common stock, it shall not be required to hold separate or additional conference calls for the benefit of the Holders and beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such conference call, which press release shall contain information on how and when to access such conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then the annual and quarterly financial information required by this Section 4.03 with respect to 4.06 shall include a reasonably detailed presentation, as determined in good faith by Senior Management of the Company, either on the face of the financial information relating statements or in the footnotes to the Company by furnishing financial information relating to such parent; providedstatements and in the “Management’s discussion and analysis of financial condition and results of operations” section, however that of the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, financial condition and the information relating to results of operations of the Company and its Restricted Subsidiaries on a standalone basis, on separate from the other handfinancial condition and results of operations of the Unrestricted Subsidiaries.
(cf) Notwithstanding Delivery of such reports, information and documents to the foregoingTrustee hereunder 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 Company’s compliance with any of its covenants hereunder or under the Notes (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no obligation to monitor or confirm, on a continuing basis or otherwise, the requirements of this Section 4.03 shall be deemed satisfied prior Company’s compliance with the covenants or with respect to the commencement of the Exchange Offer any reports or the effectiveness of the Shelf Registration Statement by:
(1) the filing other documents filed with the SEC of or posted on the Exchange Offer Registration Statement Company’s website, or Shelf Registration Statement, and participate in any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumconference calls.
Appears in 3 contracts
Samples: Senior Notes Indenture (TTM Technologies Inc), Senior Notes Indenture (TTM Technologies Inc), Senior Notes Indenture (Wolverine World Wide Inc /De/)
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise required to report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, from and after the Issue Date, the Company shall file with the SEC (and make available furnish to the Trustee and Holders of the Notes (without exhibits), without cost to any HolderTrustee, within 15 days after the Company files them with the SEC) from and after the Issue Date,time periods specified below:
(1) within 90 120 days (or 150 days in the case of the fiscal year containing the Issue Date) after the end of each fiscal year (or if such shorter period that would be applicable to the Company if it were a U.S. company that day is not a foreign private issuer and that is subject to Business Day, on the reporting requirements of Section 13 or 15(d) next succeeding Business Day), annual financial statements of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders a “Management’s discussion and analysis of the Notes financial condition and the Trustee as results of operations” containing information customarily included if such report had been made on section was included in a Form 10-K and provided to a report on the Trustee and made available to Holders, in lieu of being filed with annual financial statements by the SECCompany’s independent auditors;
(2) within 45 60 days (or 90 days in the case of the first fiscal quarter to end after the Issue Date) after the end of each of the first three fiscal quarters of each fiscal year (or if such shorter period that would be applicable to day is not a Business Day, on the Company if it were a U.S. Filer as the SEC may in the future prescribenext succeeding Business Day), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that GAAP and a “Management’s discussion and analysis of financial condition and results of operations,” containing information customarily included if any quarterly report is filed on Form 6-K, the certifications required by such section was included in a Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;; and
(3) within 15 days after the time periods period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Company containing substantially all of the information that would be required to be filed in a current report on Form 8-K after under the occurrence Exchange Act, as in effect on the Issue Date pursuant to Items 1.03, 2.01, 4.01, 4.02, and 5.01 of an event Form 8-K; provided, however, that no such current reports (or Items thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be therein reportedfurnished to the Trustee (or included in any furnished current report) if the Company determines in its good faith judgment that such event (or information) is not material to holders or the business, such assets, operations, financial position or prospects of the Company and its Restricted Subsidiaries, taken as a whole, and, in addition, the Company shall not be obligated to furnish to the Trustee (i) an exhibit or a summary of the terms or any employment or compensatory arrangement, agreement, plan or understanding between the Company or any of its Subsidiaries and any director, officer or manager of the Company or any of its Subsidiaries, (ii) copies of any agreements, financial statements or other reports on the appropriate form for reporting current events containing substantially the same information items that would be required to be contained in filed as exhibits to a current report on Form 8-K or (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4iii) any other trade secrets, privileged or confidential information obtained from another Person and competitively sensitive information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form, except as described above or below and subject to exceptions consistent with the presentation of information included in or incorporated by reference into the Offering Circular; provided, however, that the Company shall not be so obligated required to file such reports (i) comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein, (ii) provide any information that is not otherwise similar to information currently included in or incorporated by reference into the Offering Circular, (iii) provide separate financial statements or other information contemplated by Rules 3-05, 3-09, 3-10 or 3-16 of Regulation S-X, or in each case any successor provisions or any schedules required by Regulation S-X or comply with the SEC if requirements of Regulation S-X or (iv) contain any “segment reporting.” In addition, notwithstanding the SEC does not permit such filingforegoing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would not be required to file (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, (ii) comply with rules or regulations promulgated by the SEC concerning Extensible Business Reporting Language (XBRL) or (iii) otherwise furnish any information, certificates or reports required by Items 307, 308, 402, 405, 406, 407 and 601 of Regulation S-K. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is 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 with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the SECrights of the Holders under Section 6.1 hereof if Holders of at least 30.0% in aggregate principal amount of the outstanding Notes have declared the principal, premium, if it were subject any, interest and any other monetary obligations on all the then outstanding Notes to Section 13 be due and payable immediately and such declaration shall not have been rescinded or 15(d) of the Exchange Actcancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company will shall agree that, for so long as any Notes are outstanding, it will shall furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In Delivery of reports, information and documents to the event Trustee under this Indenture will be for informational purposes only and the information and the Trustee’s receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein, or determinable from information contained therein, including the Company’s compliance with any of its covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee shall have no duty to monitor or confirm whether the Company or any Parent Entity posts reports, information or documents on SEC’s website or otherwise, collect any such information from the SEC’s website or otherwise, or review or analyze reports delivered to it.
(c) Substantially concurrently with the furnishing of such information to the Trustee pursuant to Section 3.10(a), the Company shall also use its commercially reasonable efforts to post copies of such information required by Section 3.10(a) on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to the Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), and securities analysts and market making financial institutions that are reasonably satisfactory to the Company. To the extent the Company determines in good faith that it cannot make such reports available in the manner described in the preceding sentence after the use of its commercially reasonable efforts, the Company shall furnish such reports to the Holders, upon their request. The Company may condition the delivery of any direct such reports to such Holders, prospective investors in the Notes and securities analysts and market making financial institutions on the agreement of such Persons to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports (and the information contained therein) and information for any purpose other than their investment or indirect parent company potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein) and information.
(d) The Company will participate in quarterly conference calls (which may be a single conference call together with investors and lenders holding other securities or Indebtedness of the Company, its Restricted Subsidiaries and/or any Parent Entity) to discuss results of operations. The conference call will be following the last day of each fiscal quarter of the Company becomes and not later than twenty (20) Business Days from the time that the Company distributes the financial information as set forth in Section 3.10(a). No fewer than two days prior to the conference call, the Company will issue a guarantor press release or otherwise announce the time and date of such conference call and providing instructions for Holders, prospective investors in the Notes, the securities analysts and market making financial institutions to obtain access to such call.
(e) The Company may satisfy its obligations under pursuant to this Section 4.03 3.10 with respect to financial information relating to the Company by furnishing financial information relating to such parenta Parent Entity; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentParent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cf) Notwithstanding anything to the foregoingcontrary set forth in this Section 3.10, if the Company or any Parent Entity has furnished to the Holders of Notes or filed with the SEC the reports described in this Section 3.10 with respect to the Company or any Parent Entity, the requirements Company shall be deemed to be in compliance with the provisions of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:3.10.
(1g) the filing with the SEC of the Exchange Offer Registration Statement The Trustee shall have no duty to determine whether any filings or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would postings described in this Section 3.10 have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandummade.
Appears in 2 contracts
Samples: Indenture (Pactiv Evergreen Inc.), Indenture (Pactiv Evergreen Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available The Issuer will provide to the Trustee and and, upon request, to Holders of the Notes (without exhibits), without cost a copy of all of the information and reports referred to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,below:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would as may be applicable permitted by the SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), annual audited financial statements for such fiscal year including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the Company if it were periods presented and a U.S. company that is not a foreign private issuer and that is subject to report on the reporting requirements of Section 13 or 15(d) annual financial statements by the Issuer’s independent registered public accounting firm (all of the Exchange Act (foregoing financial information to be prepared on a “U.S. Filer”) as basis substantially consistent with the SEC may corresponding financial information included in the future prescribeOffering Memorandum), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;,
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the future prescribeOffering Memorandum), a report containing substantially and
(iii) within the same information (including applicable certifications) required to be contained in time period specified for filing current reports on Form 108-Q (or any successor form) K by the SEC, current reports that would be required to be filed with the SEC on Form 8-K if the Company Issuer were required to file such reports containing substantially all of the information required pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (other than compensation information) and 5.03(b) of Form 8-K; provided that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders of the Notes or to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a U.S. Filer; providedwhole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial statements included therein shall be prepared in accordance with GAAPposition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that if any quarterly report is filed on Form 6such non-K, the certifications required by Form 10-Q, but not Form 6-K, disclosure shall be made limited only to the Holders of the Notes those specific provisions that would cause material competitive harm and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after not the occurrence of an the event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Fileritself; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and and, upon request, Holders of the Notes, the Issuer will, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders of the Notes, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of the Issuer or any direct or indirect parent of the Issuer or on a non-public, password-protected website maintained by the Issuer or any direct or indirect parent of the Issuer or a third party, in each case case, within 15 days after the time the Company Issuer would be required to file provide such information with pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (as determined by the SECIssuer in good faith) (it being understood that, if it were subject without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability); provided, further, however, that no such information shall be required to be delivered to the extent that the conditions in Section 13 3.2(f) are satisfied.
(b) Notwithstanding the foregoing, (i) the Issuer will not be required to furnish any information, certificates or 15(dreports required by (A) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the Exchange ActSEC with respect to any non-generally accepted accounting principles financial measures contained therein, (ii) the information and reports referred to in Section 3.2(a) will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information is required to be provided by the Issuer, the Issuer may provide only pro forma revenues, net income, income before extraordinary items and the cumulative effect of accounting changes, EBITDA, Adjusted EBITDA, senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the information and reports referred to in Section 3.2(a) shall not be required to present compensation or beneficial ownership information and (v) the information and reports referred to in Section 3.2(a) shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K.
(c) For so long as the Issuer has designated certain of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required to be provided by Section 3.2(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, or in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, 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. The quarterly and annual financial information required by Section 3.2(a) will include information regarding Non-Guarantor Subsidiaries for the periods covered thereby comparable to the information included in the Offering Memorandum under the caption “Description of Notes—Guarantees.”
(d) In addition, to the extent not satisfied by the foregoing, the Company Issuer will agree that, for so long as any Notes are outstanding, it the Issuer will furnish to Holders and to securities analysts and prospective investorsof the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Issuer, those of (i) any predecessor or successor of the Issuer or any entity meeting the requirements of clause (ii) of this Section 3.2(e) or (ii) any direct or indirect parent company of the Company becomes a guarantor Issuer; provided that, if the financial information so furnished relates to such direct or indirect parent of the NotesIssuer and, in the Company may satisfy its obligations under this Section 4.03 with respect to reasonable judgment of the Issuer, there are material differences between the financial information relating to of the Company by furnishing financial information relating to Issuer and such parent; provideddirect or indirect parent of the Issuer, however that the same is accompanied by consolidating information information, which may be posted to the website of the Issuer or any direct or indirect parent of the Issuer on a non-public, password-protected website maintained by the Issuer or any direct or indirect parent of the Issuer or a third party, that explains in reasonable detail the material differences between the information relating to such parentparent entity (as the case may be), on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cf) Notwithstanding the foregoing, the Issuer will be deemed to have satisfied the requirements of Section 3.2(a) if the Issuer or any direct or indirect parent of the Issuer (i) has filed reports or registration statements containing such information (including, to the extent required, the information referred to in the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC via XXXXX to the extent it is otherwise provided to Holders pursuant to this Section 4.03 shall be deemed satisfied 3.2) with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and that are publicly available or (ii) if the Issuer or any direct or indirect parent of the Issuer is no longer subject to the reporting requirements provided by the Exchange Act, with respect to the Holders of the Notes only, the Issuer or such parent entity has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2.
(g) So long as Notes are outstanding, the Issuer (or any direct or indirect parent of the Issuer) will also:
(i) promptly after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(i) and (ii), hold a conference call to discuss such reports and the results of operations for the relevant reporting period; and
(ii) announce by press release or post to the website of the Issuer or any direct or indirect parent of the Issuer or on a non-public, password-protected website maintained by the Issuer or any direct or indirect parent of the Issuer or a third party, which may require a confidentiality acknowledgment (but not restrict the recipients of such information from trading securities of the Issuer or its respective affiliates), prior to the commencement date of the Exchange Offer conference call required to be held in accordance with Section 3.2(g)(i), the time and date of such conference call and either all information necessary to access the call or informing Holders of Notes, bona fide prospective investors in the effectiveness Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of an investment in the Notes) how they can obtain such information, including, without limitation, the applicable password or other login information; provided, however, that the Issuer will be deemed to have satisfied the requirements of clause (i) (with regard to the requirement to hold a conference call) of this paragraph if any direct or indirect parent of the Shelf Registration Statement byIssuer holds a conference call to discuss such reports and the results of operations for the relevant reporting period.
(h) Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this Section 3.2 may be required to provide its email address, employer name and other information reasonably requested by the Issuer and represent to the Issuer (to the Issuer’s reasonable good faith satisfaction) that:
(i) it is a Holder of the Notes, a beneficial owner of the Notes, a bona fide prospective investor in the Notes, a bona fide market maker in the Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of investment in the Notes;
(ii) it will not use the information in violation of applicable securities laws or regulations;
(iii) it will keep such provided information confidential and will not communicate the information to any Person; and
(iv) it (1) the filing will not use such information in any manner intended to compete with the SEC business of the Exchange Offer Registration Statement or Shelf Registration Statement, Issuer and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
its Subsidiaries and (2) posting on is not a Person (which includes such Person’s Affiliates) that (A) is principally engaged in a Similar Business or (B) derives a significant portion of its website revenues from operating or providing owning a Similar Business.
(v) Delivery of reports, information and documents (including without limitation reports contemplated under this Section 3.2) to the Trustee within 15 days 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 time periods after Issuer’s compliance with any of its covenants hereunder (as to which the Company would have been required Trustee is entitled to file annual and interim reports with the SEC, the financial information (including a “Managementrely exclusively on Officer’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCertificates).
Appears in 2 contracts
Samples: Indenture (Allison Transmission Holdings Inc), Indenture (Allison Transmission Holdings Inc)
Reports and Other Information. (a) Notwithstanding that So long as any Securities are outstanding and whether or not the Company may not be Issuer is subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company Issuer shall file with the SEC (and make available furnish to the Trustee and Holders of the Notes Trustee: (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1i) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 65 days after the end of each of the first three fiscal quarters in each fiscal year, quarterly reports containing unaudited financial statements (including a balance sheet and statement of income, changes in stockholders’ equity and cash flow) for and as of the end of such fiscal quarter and year to date period (with comparable financial statements for the corresponding fiscal quarter and year to date period of the immediately preceding fiscal year); (ii) within 120 days after the end of each fiscal year (or such shorter period year, an annual report that includes all information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in filed with the SEC on Form 1020-Q F (or any successor form); and (iii) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made at or prior to the Holders of the Notes and the Trustee such times as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with be filed or furnished to the SEC if it were as a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were “foreign private issuer” subject to Section 13 13(a) or 15(d) of the Exchange Act, all such other reports and information that the Issuer would have been required to file or furnish pursuant thereto; provided, however, that to the extent that the Issuer ceases to qualify as a “foreign private issuer” within the meaning of the Exchange Act, whether or not the Issuer is then subject to Section 13(a) or 15(d) of the Exchange Act, the Issuer shall either file or furnish with the SEC (as a “voluntary filer” if the Issuer is not then subject to Section 13(a) or 15(d) of the Exchange Act) or furnish to the Trustee, so long as any Securities are outstanding, within 30 days of the respective dates on which the Issuer would be required to file such documents with the SEC if it was required to file such documents under the Exchange Act, all reports and other information that would be required to be filed with (or furnished to) the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act as, in the Issuer’s sole discretion, either a “foreign private issuer” or a U.S. domestic registrant.
(b) In addition, if required by the rules and regulations of the SEC, the Issuer shall electronically file or furnish, as the case may be, a copy of all such information and reports with the SEC for public availability within the time periods specified above. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are Securities remain outstanding, it will the Issuer shall furnish to the Holders and to securities analysts and prospective investorsinvestors identified by a Holder, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bc) Notwithstanding the foregoing, the Issuer shall be deemed to have furnished such reports referred to in the first paragraph of this Section 4.02 to the Trustee and the Holders of Securities if the Issuer has filed or furnished such reports with the SEC and such reports are publicly available on the SEC’s website; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been so filed or furnished. Delivery of such reports, information and documents to the Trustee pursuant to this covenant 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 Issuer’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(d) So long as any Securities are outstanding, the Issuer shall also: (1) not later than 10 Business Days after furnishing to the Trustee the annual and quarterly reports required by clauses (i) and (ii) of Section 4.02(a), hold a publicly accessible conference call to discuss such reports and the results of operations for the relevant reporting period (including a question and answer portion of the call); and (2) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the date of the conference call required by the foregoing clause (1) of this paragraph, announcing the time and date of such conference call and either including all information necessary to access the call or directing Holders of the Securities, prospective investors, broker dealers and securities analysts to contact the appropriate person at the Issuer to obtain such information. At any time that any of the Issuer’s Subsidiaries that are Significant Subsidiaries are Unrestricted Subsidiaries, then the quarterly and annual financial information required by the first paragraph of this Section 4.02 shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto or in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” 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, provided that the Issuer will not be required to provide such separate information to the extent such Unrestricted Subsidiaries are the subject of a confidential filing of a registration statement with the SEC. Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its agreements pursuant to this Section 4.02 for purposes of Section 6.01(d) until 30 days after the date any report hereunder is required to be filed with the SEC (or otherwise made available to Holders or the Trustee) pursuant to this Section 4.02. In the event that the rules and regulations of the SEC permit the Issuer or any direct or indirect parent company of the Company becomes Issuer to report at such parent entity’s level on a guarantor of the Notesconsolidated basis, the Company Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company 4.02 by furnishing financial information and reports relating to such parent; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentdirect or indirect parent and any of its Subsidiaries other than the Issuer and its Subsidiaries, on the one hand, and the information relating to the Company Issuer, the Guarantors and its Restricted the other Subsidiaries of the Issuer on a standalone stand-alone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 2 contracts
Samples: Indenture (Constellium N.V.), Indenture (Constellium N.V.)
Reports and Other Information. (a) Notwithstanding that The Borrower shall provide the Company may not be subject Administrative Agent, who will deliver to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits)Lenders, without cost to any Holdereach Lender, the following reports within 15 days after the Company files them with the SEC) from and after the Issue Date,specified time frames:
(1i) within 90 days after the end of each fiscal year (or such shorter period that would as may be applicable to required by the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribeSEC), an annual report (which, if permitted under applicable rules of the SEC, may be the annual report of Holdings) containing financial statements and a management’s discussion and analysis of financial condition and results of operations consistent with that which would be required in an SEC report on Form 10-K (or any successor form) or Form 20-F (or any successor formor comparable forms) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K be contained therein (or any required in such successor or comparable form) if the Company were a U.S. Filer); provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would as may be applicable to required by the Company if it were a U.S. Filer as the SEC may in the future prescribeSEC), a quarterly report (which, if permitted under applicable rules of the SEC, may be the quarterly report of Holdings) containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) financial statements and a management’s discussion and analysis of financial condition and results of operations consistent with that which would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly an SEC report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8or 6-K (or any successor formor comparable forms).
(b) that would The Borrower shall make the information required by Section 9.1(a) available to prospective lenders upon request.
(c) Notwithstanding the foregoing Sections 9.1(a) and (b), the Borrower will be deemed to have furnished the reports required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, by Sections 9.1(a) and (b) to the extent U.S. Filers are permitted to do so by Administrative Agent and the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC Lenders if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each caseor Holdings has filed (or, in the case of a manner that complies in all material respects with the requirements specified in such form; providedForm 6-K, however, that the Company shall not be so obligated to file furnished) such reports with the SEC if via the SEC does not permit XXXXX filing system and such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes reports are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Actpublicly available.
(bd) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company The Borrower may satisfy its obligations under this Section 4.03 9.1 with respect to financial information relating to the Company Borrower by furnishing financial information relating to such parentany Parent; providedprovided that, however that if Regulation S-X under the Securities Act were to apply and so require, the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentany Parent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company Borrower, any Subsidiary Guarantors, if any, and its Restricted the other Subsidiaries of the Borrower on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding In the foregoingevent that the Borrower changes its fiscal year end from the fiscal year end used by the Borrower as of the Closing Date, the requirements Borrower shall promptly give notice of this Section 4.03 shall be deemed satisfied prior such change to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumAdministrative Agent.
Appears in 2 contracts
Samples: Senior Unsecured Credit Agreement (Intelsat LTD), Senior Unsecured Credit Agreement (Intelsat LTD)
Reports and Other Information. (a) Notwithstanding that the Company Guarantor may not be required to be or remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company Guarantor shall file with the SEC Commission (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or unless such shorter period that would be applicable to the Company if it were a U.S. company that filing is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of permitted under the Exchange Act (a “U.S. Filer”) as or by the SEC may in the future prescribeCommission), an annual report on Form 10-K (or so long as any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FNotes are outstanding, the certifications required by Form 10-Kannual reports, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be Guarantor is required to file with the SEC Commission pursuant to such Section 13(a) or 15(d) or would be so required to file if it Guarantor were a U.S. Filer; providedso subject. Notwithstanding the foregoing, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company Guarantor shall not be so obligated to file such reports with the SEC Commission if the SEC Commission does not permit such filing, in which event so long as the Company will make available such information to prospective purchasers of Notes, in addition to providing Guarantor provides such information to the Trustee and the Holders of by the Notes, in each case within 15 days after date the time the Company Guarantor would be required to file such information pursuant to the preceding paragraph. The requirements set forth in this paragraph and the preceding paragraph may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Guarantor or a third party) to which access will be given to Holders. Delivery of such statements, reports, notices and other information and documents to the Trustee pursuant to any of the provisions of this Section 209 is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or 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 is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s or the Guarantor’s compliance with the SEC, if it were subject to Section 13 covenants or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to any reports or other documents filed with the Company by furnishing financial information relating to such parent; providedCommission or XXXXX or any website under this Supplemental Indenture, however that the same is accompanied by consolidating information that explains or participate in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) any conference calls. Notwithstanding the foregoing, if at any time the Guarantor is no longer required under GAAP to consolidate the Issuer in its consolidated financial statements, the requirements of set forth in this Section 4.03 209 shall be deemed satisfied prior apply to the commencement of Issuer, not the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumGuarantor.
Appears in 2 contracts
Samples: First Supplemental Indenture (Allegion PLC), Fourth Supplemental Indenture (Allegion PLC)
Reports and Other Information. (a) Notwithstanding that the Company Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, so long as any Notes are outstanding hereunder, the Company shall file Parent will furnish to the Trustee and holders the following:
(i) within the time periods specified in the SEC’s rules and regulations for non-accelerated filers, all quarterly and annual financial information of the Parent that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor comparable forms) if the Parent were required to file such Forms; and
(ii) promptly from time to time after the occurrence of an event required to be therein reported (and in any event within the time periods specified in the SEC’s rules and regulations), current reports that would be required to be filed with the SEC on Form 8-K if the Parent were required to file such reports; provided that such reports will not be required to contain the separate financial information for the Issuers or the Guarantors contemplated by Rule 3-10 under Regulation S-X promulgated by the SEC (or any successor provision). In addition to providing such information to the Trustee, the Parent shall make available to the Trustee and Holders holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to clauses (without exhibits1) and (2) of this paragraph, by posting such information to its website or on IntraLinks or any comparable online data system or website, it being understood that the Trustee shall have no responsibility to determine if such information has been posted on any website.
(b) If the Parent has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Parent, then the annual and quarterly information required by clause (1) of the first paragraph of this covenant 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 Parent and the Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(c) In the event that:
(i) any direct or indirect parent of the Parent (together with its Subsidiaries other than the Parent and its Subsidiaries), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after had consolidated net sales of less than 2.5% of the consolidated net sales of such parent entity and all of its Subsidiaries for the most recently ended four fiscal quarter period of such parent entity; and
(2) had total assets (excluding investments in Subsidiaries, intercompany receivables, intercompany loan receivables, and any other item that would be eliminated in the consolidation of such parent entity’s consolidated financial statements) of less than 5.0% of the consolidated total assets of such parent entity and all of its Subsidiaries as of the end of each the most recently ended fiscal year quarter of such parent;
(ii) in connection with any reporting requirements described in clause (i) of Section 4.02(a), the Parent delivers consolidating financial information that explains, in a reasonable level of detail, the differences between the information relating to any direct or indirect parent entity of the Parent and such shorter period that would be applicable entity’s Subsidiaries other than the Parent and its Subsidiaries, on the one hand, and the information relating to the Company if it were Parent and its Subsidiaries on a U.S. company stand-alone basis, on the other hand; or
(iii) any direct or indirect parent of the Parent is or becomes a Guarantor of the Notes, consolidating reporting at such parent entity’s level in a manner consistent with that is not a foreign private issuer described in clause (i) of Section 4.02(a) for the Parent will satisfy the requirements of such clause. Upon the occurrence of the event described in clause (iii) above, the Parent may designate such parent entity as the new Parent by delivering an Officers’ Certificate to such effect to the Trustee and that such parent entity shall thereafter be deemed to be the Parent for all purposes under this Indenture. If any direct or indirect parent of the Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)Act, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required then reporting by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, parent entity in a manner consistent with that complies described in all material respects with clause (ii) of Section 4.02(a) for the Parent will satisfy the requirements specified in of such form; providedclause.
(d) In addition, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company Parent will make available such information available to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesParent shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if Issue Date and for so long as any Notes remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(ce) Notwithstanding the foregoing, the requirements of Parent will be deemed to have furnished the reports referred to in this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing 4.02 to the Trustee within 15 days of and the time periods after holders if the Company would have been required to file annual and interim Parent has filed such reports with (or furnished such reports to) the SECSEC via the XXXXX filing system and such reports are publicly available, it being understood that the financial Trustee shall have no responsibility to determine if such information has been posted on any website.
(including a “Management’s Discussion and Analysis f) Delivery of Financial Condition and Results of Operations” section) that would be required to be included in such any reports, subject information and documents to exceptions consistent the Trustee pursuant to this Section 4.02 is for informational purposes only and the Trustee’s receipt thereof 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 under this Indenture (as to which the presentation of financial information in the Offering MemorandumTrustee is entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Samples: Indenture (Mallinckrodt PLC), Indenture (Mallinckrodt PLC)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to the rules and regulations promulgated by the SECCommission, the Company shall will file with the SEC (Commission within the time periods specified in the Commission’s rules and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period regulations that would be are then applicable to the Company (or if it were a U.S. company that the Company is not a foreign private issuer and that is then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, then the time periods for filing applicable to a filer that is not an “accelerated filer” as defined in such rules and regulations):
(1) all quarterly and annual financial information that would be required to be contained in a “U.S. Filer”filing with the Commission on Forms 10-Q (or any successor or comparable form) as the SEC may in the future prescribe), an annual report on Form and 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor comparable form) if the Company were required to file such Forms, including a U.S. Filer; provided“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, that with respect to the annual information only, a report on the annual financial statements included therein shall be prepared in accordance with GAAPby the Company’s certified independent accountants; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) all current reports that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall to be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified Commission on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; providedsuch reports, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided.
(b) Notwithstanding Section 4.06(a), however, that the Company shall will not be so obligated to file such reports with the SEC Commission if the SEC Commission does not permit such filing, in which event so long as the Company will make available such information to prospective purchasers of Notes, in addition to providing provides such information to the Trustee and the Holders and makes available such information to prospective purchasers of the Notes, in each case within 15 days after case, at the time Company’s expense and by the applicable date the Company would be required to file such information with the SEC, if it were subject pursuant to Section 13 or 15(d) of the Exchange Act4.06(a). In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it the Company will furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bc) In The requirements set forth in Section 4.06(a) and 4.06(b) may be satisfied by delivering such information to the event that any direct or indirect parent company Trustee and posting copies of such information on a website (which may be non-public and may be maintained by the Company becomes or a guarantor third party) to which access will be given to Holders and prospective purchasers of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding If the foregoingCompany has designated any of its Subsidiaries as Unrestricted Subsidiaries (other than Unrestricted Subsidiaries that, when taken together with all other Unrestricted Subsidiaries, would not be a Significant Subsidiary), then the requirements of this quarterly and annual financial information required by Section 4.03 4.06(a) shall be deemed satisfied prior to include a reasonably detailed presentation, either on the commencement face of the Exchange Offer financial statements or in the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statementfootnotes thereto, and any amendments thereto, with such financial information that satisfies Regulation S-X of in the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section, 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.
(e) that would be required to be included in Delivery of such reports, subject information and documents to exceptions consistent the Trustee 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 Company’s compliance with any of its covenants under this Indenture (as to which the presentation of financial information in the Offering MemorandumTrustee is entitled to rely exclusively on Officer’s Certificates).
Appears in 2 contracts
Samples: Senior Notes Indenture (Mativ Holdings, Inc.), Senior Notes Indenture (Schweitzer Mauduit International Inc)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECCommission, the Company Issuer shall (x) file with the SEC Commission and (and make available to y) provide the Trustee and Holders of the Notes (without exhibits)with copies thereof, without cost to any each Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following information:
(1a) within 90 days after the end of each fiscal year (or such shorter period year, annual financial information that would be applicable required to be contained in a filing with the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report Commission on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially if the same information (including applicable certifications) that the Company would be Issuer were required to include in Form 10-K file such a form, including (or any successor formi) if a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (ii) a report on the Company were a U.S. Filer; provided, that the annual financial statements included therein shall be prepared in accordance with GAAP; providedby the Issuer’s certified independent accountants, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period commencing with the fiscal quarter ending September 30, 2009, all quarterly information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if a filing with the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made Commission on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company Issuer were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SECa form, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) ”; provided, however, that would the Issuer shall not be so obligated to file such reports with the Commission if the Commission does not permit such filing, in which event the Issuer shall make available such information to securities analysts and prospective investors upon request, in addition to providing such information to the Trustee and the Holders. The Issuer shall also furnish to Holders, securities analysts and prospective investors upon request the information required to be included delivered pursuant Rule 144A(d)(4) under the Securities Act. Notwithstanding the foregoing, the Issuer’s delivery obligations to the Trustee and Holders described in this Section 4.02 shall be deemed to be satisfied by posting of the information and reports referred to in clauses (a) and (b) above on the Issuer’s website or one maintained on its behalf for such purpose; provided that the Issuer shall use reasonable efforts to inform Holders and the Trustee of the availability of such information and reports, subject which may be satisfied by, among other things, a press release on any national business press release wire service. In addition, availability of the foregoing materials on the Commission’s XXXXX service shall be deemed to exceptions consistent with satisfy the presentation of financial information in Issuer’s delivery obligations to the Offering MemorandumHolders and the Trustee.
Appears in 2 contracts
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company shall file with the SEC (and make available Issuer will furnish to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,requesting such reports:
(1) within 90 days after the end of each fiscal year (other than for the fiscal year ended December 31, 2010, which shall be 105 days after the end of such fiscal year) (or such shorter longer period as may be permitted by the SEC if the Issuer were then subject to such SEC reporting requirements as a non-accelerated filer), annual reports of the Issuer containing substantially all of the financial information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K on the Issue Date (or any successor formbut only to the extent similar information is included herein), and will include (a) or Form 20-F “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (or any successor formb) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the audited financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders GAAP and (c) a presentation of Adjusted EBITDA of the Notes Issuer and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed its Subsidiaries consistent with the SEC;presentation thereof in the Offering Memorandum,
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period as may be permitted by the SEC if the Issuer were then subject to such SEC reporting requirements as a non-accelerated filer), quarterly reports of the Issuer containing substantially all of the financial information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made Quarterly Report on Form 10-Q on the Issue Date under the Exchange Act if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included herein), and will include (a) “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (b) unaudited quarterly financial statements prepared in accordance with GAAP and reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision) and (c) a presentation of Adjusted EBITDA of the Issuer and its Subsidiaries consistent with the presentation thereof herein and derived from such financial statements, and
(3) within 5 business days after the occurrence of each event that would have been required to be reported in a Current Report on Form 8-K under the Exchange Act if the Issuer had been a reporting company under the Exchange Act (or such later time period provided for in such Form 8-K), current reports containing substantially all of the information that would be required to be filed in a Current Report on Form 8-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01 and 5.02 (other than compensation information) and Item 9.01 (only to the extent relating to any of the foregoing) of Form 8-K if the Issuer had been a reporting company under the Exchange Act; provided, however, that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided that such non-disclosure shall be limited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself; provided, however, (i) in each of clauses (1), (2) and (3) above, the Issuer will not be required to furnish any information, certificates or reports required by (a) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, (b) Items 302 or 402 of Regulation S-K or (c) Item 10(e) or Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein and (ii) such reports required by clauses (1), (2) and (3), shall not be required to contain separate financial statements contemplated by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC; provided that annual and quarterly reports will include summary guarantor and non-guarantor information consistent with that disclosed in the Offering Memorandum.
(b) Notwithstanding the foregoing, the Issuer shall be deemed to have furnished such reports referred to above to the Trustee and made available to Holders, in lieu the Holders if the Issuer or any direct or indirect parent of being the Issuer (including Holdings) has filed such reports with the SECSEC via the XXXXX (or successor) filing system and such reports are publicly available.
(c) At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either taken together or individually, constitute a Significant Subsidiary, then the quarterly and annual reports required by the preceding paragraph will include a reasonably detailed 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 other comparable section, 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.
(d) The Issuer will make available such information electronically by posting such information to a secure website or distributing such information via electronic mail and, upon receipt of a request for access to such website or such information via electronic mail, shall promptly grant access to such website or distribute such information via electronic mail to any of the following:
(1) any Noteholder;
(2) any beneficial owner of the Notes that provides its electronic mail address to the Issuer and certifies that it is a beneficial owner of the Notes;
(3) within any prospective investor in the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) Notes that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, provides its electronic mail address to the extent Issuer and certifies that it is (i) a prospective investor in the Notes and (ii) a QIB or a Non-U.S. Filers are permitted to do so by the SECPerson; and
(4) any other information, documents market maker that provides its electronic mail address to the Issuer and other reports certifies that it is or intends to be a market maker with respect to the Company would Notes. Any person who requests or receives such financial information from the Issuer will be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, represent to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information Issuer (to the Trustee and the Holders Issuer’s reasonable good faith satisfaction) that:
(1) it is a holder of the Notes, a beneficial owner of the Notes, a prospective investor in the Notes or a market maker;
(2) it will not use the information in violation of applicable securities laws or regulations;
(3) it will not communicate the information to any Person; and
(4) it is not a Person (which includes such Person’s Affiliates) that (i) is principally engaged in a Similar Business or (ii) derives a significant portion of its revenues from operating a Similar Business.
(e) Within 10 Business Days after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(1) and (2) the Issuer would hold a conference call to discuss such reports and the results of operations for the relevant reporting period. Each notice for each case within 15 days after conference call may be given electronically by posting to a secure website or distribution via electronic mail and shall be issued no fewer than three Business Days prior to the date of the conference call required to be held in accordance with this paragraph and shall include the time and date of such conference call and either include all information necessary to access the Company would call or direct holders, prospective investors, broker-dealers, securities analysts or market makers to contact the appropriate person at the Issuer to obtain such information; provided that participation in such conference call may be required limited to file such information with persons that meet the SEC, if it were subject to Section 13 or 15(drequirements and make the representations set forth in the two preceding paragraphs.
(f) of the Exchange Act. In addition, addition to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will Issuer shall furnish to Holders and to Holders, prospective investors, broker-dealers, securities analysts and prospective investorsmarket makers, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bg) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may The Issuer will be permitted to satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company Issuer by furnishing financial information relating to such parentHoldings; provided, however however, that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentHoldings and any of its Subsidiaries other than the Issuer and its Subsidiaries, on the one hand, and the information relating to the Company Issuer, the Guarantors and its Restricted the other Subsidiaries of the Issuer on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 2 contracts
Samples: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding, the Company shall furnish to the Trustee all such reports and other information as it would be required to file with the SEC by Section 13(a) or 15(d) of the Exchange Act if it were subject thereto within the time periods specified by the SEC’s rules and regulations.
(b) Subject to clause (d) below, if the Company is not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual has ceased filing periodic reports and quarterly reporting pursuant to rules and regulations promulgated by other information with the SEC, then the Company shall file with the SEC (x) deliver such information and make available such reports to the Trustee and Holders any Holder of the Notes (without exhibits)and, without cost upon request, to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders beneficial owner of the Notes, in each case within 15 days after by posting such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information readily available to any prospective investor in the time Notes that certifies that it is an eligible purchaser of the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes, in each case (i) who agrees to treat such information as confidential or (ii) accesses such information on Intralinks or any comparable password protected online data system which will require a confidentiality acknowledgment; provided that the Company would be required to file shall post such information with thereon and make readily available any password or other login information to any such prospective investor in the SECNotes, if it were subject any such securities analyst (to Section 13 the extent providing analysis of investment in the Notes) or 15(dany such market maker in the Notes.
(c) of the Exchange Act. In addition, to To the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will also furnish to Holders and to Holders, securities analysts (to the extent providing analysis of investment in the Notes) and prospective investors, investors in the Notes upon their request, request 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.
(bd) In The Company will be deemed to have furnished the event that any direct or indirect parent company of reports referred to in Section 4.02(a) if the Company becomes a guarantor of has filed reports containing such information with the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handSEC.
(ce) Notwithstanding the foregoingDelivery of such reports, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, information and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing documents to the Trustee within 15 days is 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 time periods after Company’s compliance with any of its covenants hereunder (as to which the Company would have been required Trustee is entitled to file annual and interim reports rely exclusively on Officer’s Certificates with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumrespect thereto).
Appears in 2 contracts
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (Act, so long as any Notes are outstanding, the Issuer shall have its annual consolidated financial statements audited by a “U.S. Filer”) as nationally recognized firm of independent auditors and its interim consolidated financial statements reviewed by a nationally recognized firm of independent auditors in accordance with Statement on Auditing Standards No. 100 issued by the SEC may in the future prescribe), an annual report on Form 10-K American Institute of Certified Public Accountants (or any successor form) or Form 20-F (or similar replacement standard). In addition, so long as any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FNotes are outstanding, the certifications required by Form 10-K, but not Form 20-F, Issuer shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information furnish to the Trustee and the Holders of the NotesNotes the following reports:
(1) (x) all annual and quarterly financial statements that would be required to be contained in a filing with the SEC on Forms 10-K and 10-Q of the Issuer, if the Issuer were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; (y) with respect to the annual and quarterly information, a presentation of EBITDA of the Issuer substantially consistent with the presentation thereof in the Offering Memorandum and derived from such financial information; and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(2) all information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K) as in effect on the Issue Date if the Issuer were required to file such reports; in each case within 15 days after the time periods specified in the Company would SEC’s rules and regulations if the Issuer were a “non-accelerated filer” as defined in the applicable rules and regulations of the SEC, provided, however, that the provisions of this paragraph shall be satisfied if the Issuer files reports containing such information with the SEC within the time periods required by applicable SEC rules and regulations; provided further, however, that the Issuer shall not be required to (A) in the case of subclause (2), include as an exhibit, or include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries), (B) make available any information regarding the occurrence of any of the events set forth in subclause (2) if the Issuer determines in its good faith judgment that the event that would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries taken as a whole, (C) no such current report will be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein (other than providing reconciliations of such non-GAAP information to extent included in the Offering Memorandum), (D) comply with Regulation S-X or (E) provide any information that is not otherwise similar to information currently included in the Offering Memorandum. If the Issuer does not file reports containing such information with the SEC, if it were subject then the Issuer will deliver such information and reports to Section 13 or 15(d) the Trustee and make available such information and such reports to any Holder of the Exchange Act. In additionNotes and to any beneficial owner of the Notes, in each case with respect to the extent not satisfied Holders and beneficial owners by posting such information on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any prospective investor, any securities analyst or any market maker in the foregoingNotes who (i) agrees to treat such information as confidential or (ii) accesses such information on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment; provided that the Issuer shall post such information thereon and make readily available any password or other login information to any such prospective investor, the Company will agree that, for so long as any Notes are outstanding, it will securities analyst or market maker.
(b) The Issuer shall furnish to Holders and to of the Notes, securities analysts and prospective investors, investors upon their request, request 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.
(bc) In If the event that Issuer has designated any direct of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or indirect parent company group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company becomes Issuer, then the annual and quarterly information required by 4.03(a)(1) shall include a guarantor presentation of selected financial metrics (in the NotesIssuer’s sole discretion) of such Unrestricted Subsidiaries as a group in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
(d) Notwithstanding the foregoing, the Company Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to through the Company filing of the reports specified above by furnishing financial information relating to such parentany parent entity of the Issuer; provided, however provided that the same is accompanied by consolidating information selected financial metrics (in the Issuer’s sole discretion) that explains in reasonable detail show the differences between the information relating to such parent, on the one hand, and the information relating to the Company Issuer and its the Restricted Subsidiaries on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding anything herein to the foregoingcontrary, the requirements Issuer will not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iii) of Section 6.01(a) hereof until 120 days after the receipt of the written notice delivered thereunder. To the extent any information is not provided within the time periods specified in this Section 4.03 and such information is subsequently provided, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumcured.
Appears in 2 contracts
Samples: Indenture (Summit Materials, LLC), Indenture (Summit Materials, LLC)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, if not filed electronically with the Company shall SEC through XXXXX (or any successor system), the Issuer will file with the SEC (to the extent permitted by the Exchange Act), and make available to the Trustee and Holders of the Notes (without exhibits)Holders, without cost to any Holder, 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 with respect to U.S. issuers within 15 days after the Company files them time periods specified therein or in the relevant forms.
(b) In the event that the Issuer is not permitted to file such reports, documents and information with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable SEC pursuant to the Company Exchange Act, the Issuer will nevertheless make available such Exchange Act reports, documents and information to the Trustee and the Holders as if it the Issuer were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after therein or in the occurrence of an event required to be therein reportedrelevant forms, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports which requirement may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so satisfied by the SEC; and
(4) any other informationposting such reports, documents and other reports that information on its website within the Company would be required time periods specified by this Section 4.03.
(c) In addition, no later than five Business Days after the date the quarterly and annual financial information for the prior fiscal period have been furnished pursuant to file Section 4.03(a) or (b), the Issuer shall also hold live quarterly conference calls with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather opportunity to ask questions of management. No fewer than filed, three Business Days prior to the extent U.S. Filers are permitted date such conference call is to do so by be held, the SEC; in each case, in Issuer shall issue a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information press release to the Trustee and appropriate U.S. wire services announcing such quarterly conference call for the Holders benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective investors in each case the Notes (which prospective investors shall be limited to “qualified institutional buyers” within 15 days after the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Issuer), and securities analysts and market making financial institutions, which press release shall contain the time and the Company date of such conference call and direct the recipients thereof to contact an individual at the Issuer (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(d) If the Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would be otherwise have been a Significant Subsidiary, then the quarterly and annual financial information required to file such information with the SECby this Section 4.03 shall include a reasonably detailed presentation, if it were subject to Section 13 or 15(d) as determined in good faith by Senior Management of the Exchange Act. Issuer, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, 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.
(e) In addition, the Issuer and the Guarantors have agreed that they will make available to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their requestthe 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.
(b) In the event that any direct or indirect parent company . For purposes of the Company becomes a guarantor of the Notesthis Section 4.03, the Company may satisfy its obligations under Issuer and the Guarantors will be deemed to have furnished the reports to the Trustee and the Holders as required by this Section 4.03 with respect to financial information relating to if the Company by furnishing financial information relating to Issuer has filed such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing reports with the SEC of via the Exchange Offer Registration Statement or Shelf Registration Statement, XXXXX filing system and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumare publicly available.
Appears in 2 contracts
Samples: Indenture (Universal Health Services Inc), Indenture (Universal Health Services Inc)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Issuer shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Reporting Entity containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02(a), (b) and (c) and Item 9.01(a) and (b) (only to the extent relating to any of the foregoing) of Form 8-K if the Reporting Entity had been a reporting company under the Exchange Act; provided, however, that no such current reports (or any successor formItems thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be delivered (or included) if the Company were Issuer determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a U.S. Filer; provided, that whole. In addition to providing such information to the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FTrustee, the Issuer shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) and (iii), by posting such information to its website (or the website of any of the Issuer’s parent companies, including the Reporting Entity) or on IntraLinks or any comparable online data system or website. If at any time the Issuer or any direct or indirect parent of the Issuer has made a good faith determination to file a registration statement with the SEC with respect to an initial public offering of such entity’s Capital Stock, the Issuer will not be required to disclose any information or take any actions that, in the good faith view of the Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such initial public offering. Notwithstanding the foregoing, (A) neither the Issuer nor another Reporting Entity will be required to deliver any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in the Offering Memorandum and shall not be required to file with the SEC if it were a U.S. Filer; providedpresent compensation or beneficial ownership information.
(b) The financial statements, that such reports information and other documents required to be provided as described in this Section 4.02 may be furnishedthose of (i) the Issuer or (ii) any direct or indirect parent of the Issuer (any such entity described in clause (i) or (ii), rather a “Reporting Entity”), so long as in the case of clause (ii) either (1) such direct or indirect parent of the Issuer shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than filedits direct or indirect ownership of all of the Equity Interests in, and its management of, the Issuer or (2) if otherwise, the financial information so delivered shall be accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the extent U.S. Filers are permitted to do so by Issuer and its Restricted Subsidiaries on a standalone basis, on the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company other hand.
(c) The Issuer will make available such information available to prospective purchasers of Notesinvestors upon request. The Issuer shall, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, the Issuer will be deemed to have delivered such reports and information referred to in this Section 4.02 to the holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Issuer or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior and the Issuer will be deemed to have delivered such reports and information referred to this Section 4.02 to the commencement Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the Exchange Offer or the effectiveness posting of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, reports and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Issuer’s website (or that of any of the Issuer’s parent companies, including the Reporting Entity).
(e) The Issuer will also hold quarterly conference calls, beginning with the first full fiscal quarter ending after the Issue Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (i) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, subject information and documents to exceptions consistent the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof 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 under this Indenture (as to which the Trustee is entitled to rely conclusively on the Officer’s Certificates). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the presentation provision of financial this Indenture or to ascertain the correctness or otherwise of the information in or the Offering Memorandumstatements contained therein.
Appears in 2 contracts
Samples: Indenture (Rackspace Technology, Inc.), Indenture (Rackspace Technology, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall file with the SEC (and make available provide to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following reports:
(1) within 90 days after the end of each fiscal year (or such shorter period beginning with the fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially under the same information (including applicable certifications) that Exchange Act if the Company would had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (or any successor formcontrols and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be required reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 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) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company were had been a U.S. Filerreporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; providedprovided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the financial statements included therein shall be prepared in accordance with GAAPOffering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, that if any quarterly report however, that, so long as the Company is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made subject to the Holders reporting requirements of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. , such reports (a) shall not be required to comply with Section 302 or 404 of the Xxxxxxxx-Xxxxx Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will the Company shall furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(bc) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, 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.
(f) In the event that any direct or indirect parent company of the Company becomes a guarantor Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect 4.06 to provide consolidated financial information relating to of the Company by furnishing consolidated financial information relating to such parent; provided, however provided that the same is (1) such financial statements are accompanied by consolidating financial information that explains in reasonable detail the differences between the information relating to for such parent, on the one handCompany, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements Trustee’s receipt of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to exceptions consistent with which the presentation Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of financial information in the Offering Memorandumany such report.
Appears in 2 contracts
Samples: Senior Notes Indenture (WeWork Inc.), Senior Notes Indenture (We Co.)
Reports and Other Information. (a) Notwithstanding The Issuer shall have the annual consolidated financial statements of UK Holdco (or a Reporting Company, as permitted in accordance with this Section 4.02) audited by such entity’s independent registered public accountants and the interim consolidated financial statements reviewed in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants (or any similar replacement standard). In addition, so long as any Securities are outstanding, the Issuer shall furnish to the Trustee and may (i) furnish to the Holders, (ii) post on its confidential password-protected website or (iii) post on Intralinks or any comparable confidential passwordprotected online data system:
(1) an annual report and quarterly report including solely the following information: (a) annual financial statements with respect to an annual report and quarterly financial statements with respect to a quarterly report (including a balance sheet, statement of operations and statement of cash flows) prepared in accordance with GAAP, (b) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” containing information customarily included in such section when included in a Form 10-K or Form 10-Q, as applicable, filed with the SEC (but only to the extent similar information is included in the Offering Memorandum), (c) [reserved], (d) a presentation of EBITDA of UK Holdco and its Restricted Subsidiaries for the trailing twelve month period substantially consistent with the presentation of “Standalone Adjusted EBITDA” in the Offering Memorandum and derived from such financial statements, and (e) with respect to the annual report only, a report on the annual financial statements by UK Holdco’s independent registered public accounting firm; and
(2) the information that would be required to be contained in filings with the Company may SEC on Form 8-K by the Issuer or UK Holdco if the Issuer or UK Holdco were required to file such reports for any of the following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of UK Holdco, the Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of UK Holdco or any Restricted Subsidiary having a principal amount in excess of $125.0 million, (d) a change in certifying independent auditor with respect to UK Holdco or any indirect parent whose financial statements are provided as permitted by this Indenture, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of UK Holdco or the Issuer, (f) resignation of a director of UK Holdco or the Issuer on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions, (j) entry into material agreements, (k) entry into material financial obligations and (l) historical financial statements of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K to the extent and in the form available to the Issuer (as determined by the Issuer in good faith) if the Issuer or UK Holdco were a domestic reporting company under the Exchange Act); provided, however, that no such current report will be required to be furnished if UK Holdco determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of UK Holdco and its Restricted Subsidiaries, taken as a whole; provided, further, however, that no such current report will be required to include a summary of the terms of any employment or compensatory arrangement, agreement, plan or understanding between UK Holdco (or any of its Subsidiaries) and any director or officer; In connection therewith and for the avoidance of doubt, all such reports (A) shall not be subject required to the reporting requirements of comply with Section 13 302, Section 404 or 15(d) Section 906 of the Exchange Xxxxxxxx-Xxxxx Act of 2002, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations related Items 307 or 308 of Regulation S-K promulgated by the SEC, or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein), (B) shall not be required to contain the Company shall file with separate financial information contemplated by Rule 3-05, Rule 3-09, Rule 3-10, Rule 3-16, Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC (and make available other than information with respect to Guarantors to the Trustee and Holders of the Notes (without exhibitsextent required to be provided under Section 4.02(a)(1)), without cost (C) shall not be required to comply with Items 402, 405, 406, 407 and 601 of Regulation S-K promulgated by the SEC, (D) shall not be required to contain any Holderexhibit (including any financial statements that would be required to be filed as an exhibit), within 15 days after (E) shall not be required to comply with rules or regulations promulgated by the Company files them SEC concerning Extensible Business Reporting Language (XBRL) and (F) shall not be required to comply with the SEC) from and after requirements of Regulation S-X to the Issue Date,extent such requirements were not complied with in the Offering Memorandum.
(1b) All such annual reports shall be furnished within 90 days after the end of each the fiscal year (or such shorter longer period that would as may be applicable to permitted by the Company SEC if it the Issuer or UK Holdco were a U.S. company that is not a foreign private issuer and that is then subject to the SEC reporting requirements of Section 13 or 15(das a non-accelerated domestic filer) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)to which they relate, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein and all such quarterly reports shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) furnished within 45 days after the end of each of the first three fiscal quarters of each fiscal year quarter (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may in if the future prescribe), Issuer were then subject to SEC reporting requirements as a report containing substantially non-accelerated domestic filer) to which they relate. All such current reports shall be furnished within 10 Business Days after the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) occurrence of each event that would be required to be reported in such current report.
(c) The Issuer shall make available such information and such reports (as well as the details regarding the conference call described below) to any (i) Holder, (ii) beneficial owner of the Securities, (iii) bona fide prospective investor in the Securities, (iv) bona fide securities analyst or (v) bona fide market maker in the Securities, in each case, by confidentially posting such information on its website or on Intralinks or any comparable password-protected online data system and making readily available any password or other login information to any such recipient. The Trustee shall have no responsibility whatsoever to determine if such posting has occurred. The Issuer shall hold a quarterly conference call for the Holders and securities analysts to discuss such financial information for the previous quarter no later than ten Business Days after distribution of such financial information. The Issuer may require an acknowledgement from any such recipient that (i) it will keep all information confidential, (ii) it will not use such information in violation of applicable securities laws and (iii) it will not use the information to compete with the Issuer and is not a person principally engaged in a Similar Business or that derives a significant portion of its revenues from a Similar Business in connection with access to its financial information or conference calls and may withhold access from any person who does not satisfy such conditions in its good faith judgment. While the Issuer or any direct or indirect parent of the Issuer is in registration with respect to an initial public offering, the Issuer or any direct or indirect parent of the Issuer shall not be required to disclose any information or take any actions which, in the view of the Issuer, would violate securities laws or the SEC’s gun jumping rules and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) Notwithstanding the foregoing, for so long as the Public Parent or any other direct or indirect parent of the Issuer is a public reporting company (a “Reporting Company”), the Issuer shall be deemed to have satisfied its obligations in this Section 4.02 with respect to furnishing financial information relating to UK Holdco by furnishing financial information relating to such Reporting Company were a U.S. Filerupon the filing of reports containing such information with the SEC or other securities commissions or stock exchange; provided, that if a Reporting Company files such reports with the SEC and such Reporting Company has more than de minimis business operations separate and apart from its ownership of UK Holdco, then the financial statements included therein of such Reporting Company shall be prepared include (or the Issuer shall otherwise furnish to the Trustee and holders of Securities in accordance with GAAPthis covenant) a presentation of selected financial metrics (in UK Holdco’s sole discretion), which need not be audited, that show the difference between the information relating to such Reporting Company, on the one hand, and the information relating to UK Holdco and its Restricted Subsidiaries on a stand-alone basis, on the other hand; provided, further, that no such disclosure will be required to be furnished if any quarterly report UK Holdco determines in its good faith judgment that such disclosure is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made material to the Holders of the Notes and the Holders. The Trustee as if will have no responsibility to determine whether such report had been made on Form 10-Q and provided to the Trustee and made available filing has occurred.
(e) The Issuer shall also furnish to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, investors upon their request, request 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.
(bf) In If UK Holdco has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of UK Holdco, then the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with quarterly information required by Section 4.02(a)(1) shall include a presentation of selected financial metrics (in UK Holdco’s sole discretion), which need not be audited, of such Unrestricted Subsidiaries as a group in the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sectionOperation.”
(g) that would Notwithstanding anything herein to the contrary, the Issuer shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(c) until 120 days after the date any report hereunder is due. Notwithstanding anything herein to the contrary, any failure to comply with this Section 4.02 shall be automatically cured when the Issuer or any direct or indirect parent of the Issuer, as the case may be, makes available all required reports to be included in such the Holders.
(h) Delivery of reports, subject information and documents to exceptions consistent the Trustee is for informational purposes only and the information and the Trustee’s receipt of such shall not constitute actual or 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 presentation of financial information in the Offering MemorandumTrustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no duty to review or analyze reports delivered to it.
Appears in 2 contracts
Samples: Indenture (CLARIVATE PLC), Indenture (CLARIVATE PLC)
Reports and Other Information. (a) Notwithstanding that the Company Guarantor may not be required to be or remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company Guarantor shall file with the SEC Commission (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or unless such shorter period that would be applicable to the Company if it were a U.S. company that filing is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of permitted under the Exchange Act (a “U.S. Filer”) as or by the SEC may in the future prescribeCommission), an annual report on Form 10-K (or so long as any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FNotes are outstanding, the certifications required by Form 10-Kannual reports, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be Guarantor is required to file with the SEC Commission pursuant to such Section 13(a) or 15(d) or would be so required to file if it Guarantor were a U.S. Filer; providedso subject. Notwithstanding the foregoing, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company Guarantor shall not be so obligated to file such reports with the SEC Commission if the SEC Commission does not permit such filing, in which event so long as the Company will make available such information to prospective purchasers of Notes, in addition to providing Guarantor provides such information to the Trustee and the Holders of by the Notes, in each case within 15 days after date the time the Company Guarantor would be required to file such information pursuant to the preceding paragraph. The requirements set forth in this paragraph and the preceding paragraph may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Guarantor or a third party) to which access will be given to Holders. Delivery of such statements, reports, notices and other information and documents to the Trustee pursuant to any of the provisions of this Section 209 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 Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s or the Guarantor’s compliance with the SEC, if it were subject to Section 13 covenants or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to any reports or other documents filed with the Company by furnishing financial information relating to such parent; providedCommission or XXXXX or any website under this Supplemental Indenture, however that the same is accompanied by consolidating information that explains or participate in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) any conference calls. Notwithstanding the foregoing, if at any time the Guarantor is no longer required under GAAP to consolidate the Issuer in its consolidated financial statements, the requirements of set forth in this Section 4.03 209 shall be deemed satisfied prior apply to the commencement of Issuer, not the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumGuarantor.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Allegion PLC), First Supplemental Indenture (Allegion PLC)
Reports and Other Information. (a) Notwithstanding that the Company Holdings may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, Holdings will furnish to the Company shall holders of Notes or cause the Trustee to furnish to holders of Notes (or file or furnish, as applicable, with the SEC for public availability):
(and make available to i) within the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with time period specified in the SEC) from ’s rules and after regulations for non-accelerated filers, annual reports containing the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor comparable form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K be contained therein (or any required in such successor or comparable form) if the Company were a U.S. Filer; provided), that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made except to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided extent permitted to the Trustee and made available to Holders, in lieu of being filed with be excluded by the SEC;
(2ii) within 45 days after the end of each of time period specified in the first three fiscal quarters of each fiscal year (or such shorter period SEC’s rules and regulations for non-accelerated filers, quarterly reports containing the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q (or any successor or comparable form) that would containing the information required to be contained therein (or required if the Company were a U.S. Filer; providedin such successor or comparable form), that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made except to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided extent permitted to the Trustee and made available to Holders, in lieu of being filed with be excluded by the SEC;
(3iii) within the promptly from time periods specified on Form 8-K to time after the occurrence of an event required to be therein reportedreported (and in any event within the time period specified in the SEC’s rules and regulations), such other current reports on containing the appropriate form for reporting current events containing substantially the same information that would have been required to be contained in a current report on Form 8-K (or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC); and
(4iv) subject to the foregoing, any other information, documents and other reports that the Company which Holdings would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act; provided, however, if the SEC does not permit such filing, Holdings will make available such information to the Trustee and the holders within 15 days after the time Holdings would be required to file such information with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act, subject, in the case of any such information, certificates or reports provided prior to the effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement, to exceptions and exclusions consistent with the presentation of financial and other information in the Offering Memorandum (including with respect to any periodic reports provided prior to effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement, the omission of financial information required by Rule 3-10 under Regulation S-X promulgated by the SEC (or any successor provision)). In addition to providing such information to the Trustee, Holdings shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) or (iii), by posting such information to its website or on IntraLinks or any comparable online data system or website. In the event that IPOCo or any other direct or indirect parent company of Holdings becomes a guarantor of the Notes, Holdings may satisfy its obligations under this covenant by furnishing financial information relating to such entity; provided that such financial statements are accompanied by consolidating financial information for such parent, Athlon, the Subsidiary Guarantors and the Subsidiaries of Holdings that are not Subsidiary Guarantors in the manner prescribed by the SEC. While IPOCo is in registration with respect to a Qualified IPO, Holdings shall not be required to disclose any information or take any actions which, in the view of Holdings, would violate the securities laws or the SEC’s “gun-jumping” rules or otherwise have an adverse effect on the Qualified IPO. If Holdings has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of Holdings, then the annual and quarterly information required to be provided by clauses (i) and (ii) of this Section 4.02(a) 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 Holdings and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(b) Notwithstanding the foregoing, Holdings will not be required to furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K prior to the effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement, as applicable.
(c) In the event that:
(i) the rules and regulations of the SEC permit Holdings and any direct or indirect parent of Holdings to report at such parent entity’s level on a consolidated basis and such parent entity is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the capital stock of Holdings, or
(ii) any direct or indirect parent of Holdings is or becomes a guarantor of the Notes, consolidated reporting at such parent entity’s level in a manner consistent with that described in this Section 4.02 for Holdings will satisfy this Section 4.02, and Holdings is permitted to satisfy its obligations in this Section 4.02 with respect to financial information relating Holdings by furnishing financial information relating to such direct or indirect parent; provided that such financial information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and any of its Subsidiaries other than Holdings and its Subsidiaries, on the one hand, and the information relating to Holdings, the Subsidiary Guarantors and the other Subsidiaries of Holdings on a standalone basis, on the other hand. In addition, Holdings will make such information available to the extent not satisfied by the foregoingprospective investors upon request.
(d) In addition, the Company will agree thatHoldings shall, for so long as any Notes are outstandingremain outstanding during any period when it is not subject to Section 13 or 15(d) of the Exchange Act, it will or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to Holders the holders of the Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Holdings will also hold quarterly conference calls, beginning with the first full fiscal quarter ending after the Issue Date, for all holders and securities analysts to discuss such financial information no later than five business days after the distribution of such information required by Sections 4.02(a)(i) and (ii) and prior to the date of each such conference call, announcing the time and date of such conference call and either including all information necessary to access the call or informing holders of Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or other login information.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(ce) Notwithstanding the foregoing, Holdings will be deemed to have furnished the reports referred to in this Section 4.02 to the Trustee and the holders if Holdings has filed such reports with the SEC via the XXXXX filing system and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to the commencement of the Registered Exchange Offer or the effectiveness of the Shelf Registration Statement by:
by (1) the filing with the SEC of the Exchange Offer Registration Statement or and/or Shelf Registration StatementStatement in accordance with the provisions of such Registration Rights Agreement, and any amendments thereto, with if such financial information registration statement and/or amendments thereto are filed at times that satisfies Regulation S-X of otherwise satisfy the Securities Act, or
time requirements set forth in Section 4.02(a) and/or (2) the posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided to the Trustee and the holders on Holdings’ website (or that of any of Holdings’ parent companies).
(f) Delivery of such reports, subject information and documents to exceptions consistent the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants under this Indenture (as to which the presentation of financial information in the Offering MemorandumTrustee is entitled to rely exclusively on Officers’ Certificates).
Appears in 2 contracts
Samples: Indenture (Athlon Energy Inc.), Indenture (Athlon Energy Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report reports on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall (a) file with the SEC (unless the SEC will not accept such filing), and make available (b) deliver to the Trustee and and, upon written request, the registered Holders of the Notes (without exhibits)Notes, without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,:
(1) within 90 days after the end of each fiscal year time periods specified by the Exchange Act (including all applicable extension periods), an annual report on Form 10-K (or any successor or comparable form) containing the information required to be contained therein in all material respects (or required in such shorter period successor or comparable form);
(2) within the time periods specified by the Exchange Act (including all applicable extension periods), a quarterly report on Form 10-Q (or any successor or comparable form); and
(3) all current reports that would be applicable required to be filed with the SEC on Form 8-K (or any successor or comparable form).
(b) In the event that the Company is not permitted to file such reports with the SEC pursuant to the Exchange Act, the Company shall nevertheless deliver to the Trustee and make available such Exchange Act reports to the registered Holders of the Notes as if it the Company were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after by the occurrence of an event required to Exchange Act (including all applicable extension periods), which requirement may be therein reported, satisfied by posting such other reports on its website within the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so time periods specified by the SEC; andthis covenant.
(4c) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree thatshall, for so long as any Notes are outstanding, it will furnish make available to the Holders and to securities analysts of the Notes 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 the Notes are not freely transferable under the Securities Act.
(bd) In Delivery of such reports and information to the event that Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(e) The Company will be deemed to have satisfied the information and reporting requirements of this Section 4.03 if the Company (or any direct or indirect parent company of the Company becomes a guarantor of Company) has filed reports or registration statements containing such information with the NotesSEC via the SEC’s Electronic Data Gathering, Analysis and Retrieval system (or any successor system) within the Company may satisfy its obligations under this Section 4.03 with respect time periods specified above and such reports are publicly available provided, however, that the Trustee shall have no obligation whatsoever to financial information relating to the Company by furnishing financial information relating determine whether or not such information, documents or reports have been filed pursuant to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and system (or its Restricted Subsidiaries on a standalone basis, on the other handsuccessor).
(cf) Notwithstanding the foregoing, the requirements of such reports and other information required to be provided pursuant to this Section 4.03 shall be deemed satisfied prior to the commencement may be, rather than those of the Exchange Offer Company, those of any direct or the effectiveness indirect parent of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCompany.
Appears in 2 contracts
Samples: Indenture (Viasat Inc), Indenture (Viasat Inc)
Reports and Other Information. (a) Notwithstanding that The Borrower shall provide the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual Administrative Agent and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits)Lenders, without cost to any Holdereach Lender, the following reports within 15 days after the Company files them with the SEC) from and after the Issue Date,specified time frames:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that as would be applicable to permitted by the Company SEC if it the Borrower were a U.S. company that is not a foreign private issuer and that is then subject to the such SEC reporting requirements of Section 13 as a required filer, voluntary filer or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribeotherwise), an annual report (which, if permitted under applicable rules of the SEC, may be the annual report of Holdings or another Parent of the Borrower) consistent with that which would be required in an SEC report on Form 10-K (or any successor form) or Form 20-F (or any successor formor comparable forms) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K be contained therein (or any required in such successor or comparable form) if the Company were a U.S. Filer; provided), that the which shall include financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications and a management’s discussion and analysis of financial condition and results of operations (whether or not required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;form); and
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that as would be applicable to the Company if it were a U.S. Filer as permitted by the SEC may in if the future prescribeBorrower were then subject to such SEC reporting requirements as a required filer, voluntary filer or otherwise), a quarterly report containing substantially (which, if permitted under applicable rules of the same information (including applicable certificationsSEC, may be the quarterly report of Holdings or another Parent of the Borrower) required to be contained in Form 10-Q (or any successor form) consistent with that which would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly an SEC report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8or 6-K (or any successor or comparable forms), which shall include unaudited financial statements and a management’s discussion and analysis of financial condition and results of operations (whether or not required by such form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and).
(4b) any other information, documents and other reports that The Borrower shall make the Company would be information required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make Section 9.1(a) available such information to prospective purchasers of Noteslenders upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesBorrower shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Loans remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders Lenders and to securities analysts and prospective investorslenders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Notwithstanding the foregoing Sections 9.1(a) and (b), the Borrower will be deemed to have furnished the reports required by Sections 9.1(a) and (b) In to the event that any direct Administrative Agent and the Lenders if it or indirect parent company Holdings or another Parent of the Company becomes Borrower has filed (or, in the case of a guarantor of Form 6-K, furnished) such reports with the Notes, SEC via the Company XXXXX filing system and such reports are publicly available.
(d) The Borrower may satisfy its obligations under this Section 4.03 9.1 with respect to financial information relating to the Company Borrower by furnishing financial information relating to such parentHoldings or another Parent; providedprovided that, however that if Regulation S-X under the Securities Act were to apply and so require, the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings or such parentParent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company Borrower, any Subsidiary Guarantors, if any, and its Restricted the other Subsidiaries of the Borrower on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding In the foregoingevent that the Borrower changes its fiscal year end from the fiscal year end used by the Borrower as of the Closing Date, the requirements Borrower shall promptly give notice of this Section 4.03 shall be deemed satisfied prior such change to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumAdministrative Agent.
Appears in 2 contracts
Samples: Senior Unsecured Pik Election Bridge Loan Credit Agreement (Intelsat LTD), Senior Unsecured Bridge Loan Credit Agreement (Intelsat LTD)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be required to be or remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall Issuer will file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or unless such shorter period that would be applicable to the Company if it were a U.S. company that filing is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of permitted under the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) ), so long as any other Notes are Outstanding, the annual reports, information, documents and other reports that the Company would be Issuer is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if it the Issuer were a U.S. Filer; providedso subject.
(b) Notwithstanding the foregoing, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall Issuer will not be so obligated to file such reports with the SEC if the SEC does not permit such filing; provided, however, in which event such case, the Company will make available such information to prospective purchasers of Notes, in addition to providing Issuer shall provide such information to the Trustee and the Holders of Holders, prospective investors that certify they are qualified institutional buyers, securities analysts and market makers (“Permitted Parties”) by the Notes, in each case within 15 days after date the time the Company Issuer would be required to file such information with pursuant to the SEC, if it were preceding paragraph. The requirements set forth in this paragraph and the preceding paragraph may be satisfied by delivering such information electronically to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Issuer or a third party) to which Permitted Parties are given access and to which such information is posted.
(c) For so long as the Issuer is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the Issuer shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in quarterly and annual conference calls to discuss results of operations with Permitted Parties. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Permitted Parties to contact the investor relations office of the Issuer to obtain access to the conference call.
(d) At any time when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall use its reasonable efforts to participate in quarterly and annual private conference calls to discuss results of operations with Permitted Parties within 15 business days after the date on which quarterly and annual, as the case may be, reports are required to be furnished under this Indenture. In addition, The Issuer shall employ commercially reasonably means expected to reach Permitted Parties no fewer than three business days prior to the extent date of the conference call required to be held to announce the time and date of such conference call and either including all information necessary to access the call or directing Permitted Parties to contact the appropriate person at the Issuer to obtain such information.
(e) At any time when the Issuer is not satisfied by subject to the foregoingreporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will agree that, for so long as any Notes are outstanding, it Issuer will furnish to Holders and to securities analysts and prospective investors, upon their requestthe requests of such Holders, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are “restricted securities” under Rule 144 under the Securities Act.
(f) Notwithstanding anything else contained in this Indenture, if the Issuer has filed with the SEC the reports described in the preceding paragraphs (including via the XXXXX system or any successor electronic filing system), the Issuer shall be deemed to be in compliance with clauses (a), (b) In and (e) above.
(g) Delivery of reports, information and documents to the event that Trustee is for informational purposes only and its receipt of such reports shall not constitute constructive notice of any direct information contained therein or indirect parent company determinable from information contained therein, including the Issuer’s compliance with any of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations covenants under this Section 4.03 Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the any reports or other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing documents filed with the SEC of the Exchange Offer Registration Statement or Shelf Registration StatementXXXXX or website under this Indenture, and or participate in any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumconference calls.
Appears in 2 contracts
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECCommission, the Company Issuer shall (x) file with the SEC Commission and (and make available to y) provide the Trustee and Holders of the Notes (without exhibits)with copies thereof, without cost to any each Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following information:
(1a) within 90 days after the end of each fiscal year (or such shorter period year, annual financial information that would be applicable required to be contained in a filing with the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report Commission on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially if the same information (including applicable certifications) that the Company would be Issuer were required to include in Form 10-K file such a form, including (or any successor formi) if a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (ii) a report on the Company were a U.S. Filer; provided, that the annual financial statements included therein shall be prepared in accordance with GAAP; providedby the Issuer’s certified independent accountants, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period commencing with the fiscal quarter ending September 30, 2010, all quarterly information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if a filing with the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made Commission on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company Issuer were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SECa form, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) ”; provided, however, that would the Issuer shall not be required so obligated to file such reports with the Commission if the Commission does not permit such filing, in which event the Issuer shall make available such information to securities analysts and prospective investors upon request, in addition to providing such information to the Trustee and the Holders. Notwithstanding the foregoing, the Issuer’s delivery obligations to the Trustee and Holders described in this Section 4.02 shall be deemed to be included satisfied by posting of the information and reports referred to in clauses (a) and (b) above on the Issuer’s website or one maintained on its behalf for such purpose; provided that the Issuer shall use reasonable efforts to inform Holders and the Trustee of the availability of such information and reports, which may be satisfied by, among other things, a press release on any national business press release wire service. In addition, availability of the foregoing materials on the Commission’s XXXXX service shall be deemed to satisfy the Issuer’s delivery obligations to the Holders and the Trustee. Delivery of such reports, subject information and documents to exceptions consistent the Trustee is for informational purposes only and its receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s or any other Person’s compliance with any of its covenants under this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates or Officers’ Certificates, as the case may be). The Trustee shall have no obligation to monitor or confirm, on a continuing basis or otherwise, the Issuer’s or any other Person’s compliance with this Section 4.02 described above or with respect to any reports or other documents delivered to it or filed under this Indenture; provided, however, to the extent the Trustee receives written notice from the Issuer of any events which would constitute certain Defaults, their status and what action the Issuer is taking or proposing to take in respect thereof, the Trustee shall be obligated to perform its obligations with respect thereto in accordance with the presentation terms and conditions of financial information in the Offering Memorandumthis Indenture.
Appears in 2 contracts
Samples: Indenture (GeoEye, Inc.), Indenture (GeoEye License Corp.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company Issuers shall file with the SEC (and make available provide to the Trustee and Holders and, upon request, to beneficial owners a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC) from ’s rules and after regulations for non-accelerated filers, annual reports of the Issue Date,
(1) within 90 days after the end of each Reporting Entity for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor comparable form) if the Company were Reporting Entity had been a U.S. Filer; providedreporting company under the Exchange Act, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made except to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided extent permitted to the Trustee and made available to Holders, in lieu of being filed with be excluded by the SEC;
(2ii) within 45 15 days after the end of each time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the first three Reporting Entity for such fiscal quarters of each fiscal year (or such shorter period quarter containing the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q (or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report Reporting Entity had been made on Form 10-Q and provided to a reporting company under the Trustee and made available to HoldersExchange Act, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, except to the extent U.S. Filers are permitted to do so be excluded by the SEC; and
(4iii) any other informationwithin 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, documents and other current reports of the Reporting Entity containing substantially all of the information that the Company would be required to file with be filed in a Current Report on Form 8-K under the SEC if it were a U.S. Filer; providedExchange Act on the Issue Date pursuant to Sections 1, that such reports may be furnished2 and 4, rather Items 5.01, 5.02 (a)-(d) (other than filedcompensation information), 5.03(b) and Item 9.01 (only to the extent U.S. Filers are permitted relating to do so by any of the SEC; in each case, in foregoing) of Form 8-K if the Reporting Entity had been a manner that complies in all material respects with reporting company under the requirements specified in such formExchange Act; provided, however, that no such current reports will be required to be furnished if the Issuers determine in their good faith judgment that such event is not material to holders or the business, assets, operations, financial position or prospects of the Issuers and their Restricted Subsidiaries, taken as a whole. If at any time the Company or any direct or indirect parent of the Company has made a good faith determination to file a registration statement with the SEC with respect to an initial public offering of such Person’s Capital Stock, the Issuers will not be required to disclose any information or take any actions that, in the good faith view of the Issuers, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such initial public offering. If the Issuers have designated any of their Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuers, then the annual and quarterly information required by clauses (a)(i) and (a)(ii) of this Section 4.02 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 Issuers and their Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(b) Notwithstanding the foregoing, (a) none of the Issuers nor any Reporting Entity will be required to furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (b) such reports will not be required to contain financial information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K or Form 10-Q (or any such successor or comparable forms) or related rules under Regulation S-K, and (c) such reports shall be subject to exceptions, exclusions and other differences consistent with the presentation of financial and other information in the Offering Memorandum and shall not be required to present compensation or beneficial ownership information.
(c) The financial statements, information and other documents required to be provided as described above, may be those of (i) the Company or (ii) any direct or indirect parent of the Company (any such entity described in clause (i) or (ii), a “Reporting Entity”), so obligated to file long as in the case of (ii) such reports with the SEC if the SEC does not permit such filing, in which event direct or indirect parent of the Company will make available such information not conduct, transact or otherwise engage, or commit to prospective purchasers of Notesconduct, transact or otherwise engage, in any business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of the Company; provided that, if the financial information so furnished relates to such direct or indirect parent of the Company, the same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the Issuers and their Restricted Subsidiaries on a standalone basis, on the other hand.
(d) In addition to providing such information to the Trustee and Trustee, the Holders Issuers will make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the NotesNotes and securities analysts the information required to be provided pursuant to clauses (a)(i), in each case within 15 days after (a)(ii) or (a)(iii) of this Section 4.02, by posting such information to the time website of the Company would be required to file such information with (or the SECwebsite of any direct or indirect parent of the Company) or on IntraLinks or any comparable online data system or website.
(e) The Issuers shall, if it were for so long as any Notes remain outstanding during any period when they are not or any Reporting Entity is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In . The Issuers shall also hold quarterly conference calls, beginning with the event that any direct or indirect parent company of first full fiscal quarter ending after the Company becomes a guarantor Issue Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Company may satisfy its obligations under Notes and securities analysts to discuss such financial information no later than ten business days after the distribution of such information required by clauses (a)(i) or (a)(ii) of this Section 4.03 with respect to financial information relating 4.02, and prior to the Company by furnishing financial date of each such conference call, the Issuers will announce the time and date of such conference call and either include all information relating necessary to access the call in such parent; providedannouncement or inform holders of Notes, however that prospective investors, market makers affiliated with any initial purchaser of the same is accompanied by consolidating Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or other login information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand(if applicable).
(cf) Notwithstanding the foregoing, the Issuers will be deemed to have furnished such reports referred to in this Section 4.02 to the Trustee and the holders if an Issuer or a Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included provided to the holders on the Company’s website (or the website of any direct or indirect parent of the Company). Furthermore, (i) the time requirements set forth in clause (ii) of Section 4.02(a) shall be satisfied if the quarterly reports for the fiscal quarters ending March 31, 2016, June 30, 2016 and September 30, 2016 are filed within 75 days after the end of such reportsfiscal quarter and (ii) the time requirements set forth in clause (a)(i) of this Section 4.02 shall be satisfied if the annual report for the fiscal year ending December 31, subject 2016 is filed within 120 days after the end of such fiscal year. The Trustee shall have no responsibility to exceptions consistent with the presentation of financial information in the Offering Memorandummonitor whether any such filing or posting has occurred.
Appears in 2 contracts
Samples: Indenture (ADT, Inc.), Indenture (ADT, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Issuer shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Reporting Entity containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02(a), (b) and (c) and Item 9.01(a) and (b) (only to the extent relating to any of the foregoing) of Form 8-K if the Reporting Entity had been a reporting company under the Exchange Act; provided, however, that no such current reports (or any successor formItems thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be delivered (or included) if the Company were Issuer determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a U.S. Filer; provided, that whole. In addition to providing such information and reports to the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FTrustee, the Issuer shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses(i), (ii) and (iii), by posting such information to its website (or the website of any of the Issuer’s parent companies, including the Reporting Entity) or on IntraLinks or any comparable online data system or website. If at any time the Issuer or any direct or indirect parent of the Issuer has made a good faith determination to file a registration statement with the SEC with respect to an initial public offering of such entity’s Capital Stock, the Issuer will not be required to disclose any information or take any actions that, in the good faith view of the Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such initial public offering. Notwithstanding the foregoing, (A) neither the Issuer nor another Reporting Entity will be required to deliver any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in the Offering Memorandum and shall not be required to file with the SEC if it were a U.S. Filer; providedpresent compensation or beneficial ownership information.
(b) The financial statements, that such reports information and other documents required to be provided as described in this Section 4.02 may be furnishedthose of (i) the Issuer or (ii) any direct or indirect parent of the Issuer (any such entity described in clause (i) or (ii), rather a “Reporting Entity”), so long as in the case of clause (ii) either (1) such direct or indirect parent of the Issuer shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than filedits direct or indirect ownership of all of the Equity Interests in, and its management of, the Issuer or (2) if otherwise, the financial information so delivered shall be accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the extent U.S. Filers are permitted to do so by Issuer and its Restricted Subsidiaries on a standalone basis, on the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company other hand.
(c) The Issuer will make available such information and reports available to prospective purchasers of Notesinvestors upon request. The Issuer shall, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, the Issuer will be deemed to have delivered such reports and information referred to in this Section 4.02 to the holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Issuer or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior and the Issuer will be deemed to have delivered such reports and information referred to this Section 4.02 to the commencement Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the Exchange Offer or the effectiveness posting of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, reports and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Issuer’s website (or that of any of the Issuer’s parent companies, including the Reporting Entity).
(e) The Issuer will also hold quarterly conference calls, beginning with the first full fiscal quarter ending after the Escrow Release Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (i) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, subject information and documents to exceptions consistent the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof 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 under this Indenture (as to which the Trustee is entitled to rely conclusively on the Officer’s Certificates). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the presentation provision of financial this Indenture or to ascertain the correctness or otherwise of the information in or the Offering Memorandumstatements contained therein.
Appears in 2 contracts
Samples: Indenture (Rackspace Technology, Inc.), Indenture (Rackspace Technology, Inc.)
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (Act, so long as any Notes are outstanding, the Issuer shall have its annual consolidated financial statements audited by a “U.S. Filer”) as nationally recognized firm of independent auditors and its interim consolidated financial statements reviewed by a nationally recognized firm of independent auditors in accordance with Statement on Auditing Standards No. 100 issued by the SEC may in the future prescribe), an annual report on Form 10-K American Institute of Certified Public Accountants (or any successor form) or Form 20-F (or similar replacement standard). In addition, so long as any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FNotes are outstanding, the certifications required by Form 10-K, but not Form 20-F, Issuer shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information furnish to the Trustee and the Holders of the NotesNotes the following reports:
(1) (x) all annual and quarterly financial statements that would be required to be contained in a filing with the SEC on Forms 10-K and 10-Q of the Issuer, if the Issuer were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; (y) with respect to the annual and quarterly information, a presentation of EBITDA of the Issuer substantially consistent with the presentation thereof in the Offering Memorandum and derived from such financial information; and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(2) all information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K) as in effect on the Issue Date if the Issuer were required to file such reports; in each case within 15 days after the time periods specified in the Company would SEC’s rules and regulations if the Issuer were a “non-accelerated filer” as defined in the applicable rules and regulations of the SEC, provided, however, that the provisions of this paragraph shall be satisfied if the Issuer files reports containing such information with the SEC within the time periods required by applicable SEC rules and regulations; provided further, however, that the Issuer shall not be required to (A) in the case of subclause (2), include as an exhibit, or include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries), (B) make available any information regarding the occurrence of any of the events set forth in subclause (2) if the Issuer determines in its good faith judgment that the event that would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries taken as a whole, (C) no such current report will be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein (other than providing reconciliations of such non-GAAP information to extent included in the Offering Memorandum), (D) comply with Regulation S-X or (E) provide any information that is not otherwise similar to information currently included in the Offering Memorandum. If the Issuer does not file reports containing such information with the SEC, if it were subject then the Issuer will deliver such information and reports to Section 13 or 15(d) the Trustee and make available such information and such reports to any Holder of the Exchange Act. In additionNotes and to any beneficial owner of the Notes, in each case with respect to the extent not satisfied Holders and beneficial owners by posting such information on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any prospective investor, any securities analyst or any market maker in the foregoingNotes who (i) agrees to treat such information as confidential or (ii) accesses such information on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment; provided that the Issuer shall post such information thereon and make readily available any password or other login information to any such prospective investor, the Company will agree that, for so long as any Notes are outstanding, it will securities analyst or market maker.
(b) The Issuer shall furnish to Holders and to of the Notes, securities analysts and prospective investors, investors upon their request, request 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.
(bc) In If the event that Issuer has designated any direct of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or indirect parent company group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company becomes Issuer, then the annual and quarterly information required by Section 4.03(a)(1) shall include a guarantor presentation of selected financial metrics (in the NotesIssuer’s sole discretion) of such Unrestricted Subsidiaries as a group in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
(d) Notwithstanding the foregoing, the Company Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to through the Company filing of the reports specified above by furnishing financial information relating to such parentany parent entity of the Issuer; provided, however provided that the same is accompanied by consolidating information selected financial metrics (in the Issuer’s sole discretion) that explains in reasonable detail show the differences between the information relating to such parent, on the one hand, and the information relating to the Company Issuer and its the Restricted Subsidiaries on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding anything herein to the foregoingcontrary, the requirements Issuer will not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iii) of Section 6.01(a) hereof until 120 days after the receipt of the written notice delivered thereunder. To the extent any information is not provided within the time periods specified in this Section 4.03 and such information is subsequently provided, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumcured.
Appears in 2 contracts
Samples: Indenture (Summit Materials, LLC), Indenture (Summit Materials, LLC)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company Issuer shall file with the SEC (and make available to provide the Trustee and Holders of the Notes (without exhibitswith copies thereof by posting such information on its primary website), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after as soon as available and in any event on or before the end of each fiscal year (or date on which such shorter period that reports would be applicable required to be filed with the Company SEC (if it the Issuer were a U.S. company that is not a foreign private issuer and that is non-accelerated filer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribeAct), an annual report reports on Form 10-K (or any successor form) or Form 20-F (or any successor comparable form) containing substantially the same information required to be contained therein (including applicable certificationsor required in such successor or comparable form),
(2) that as soon as available and in any event on or before the Company date on which such reports would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
SEC (2if the Issuer were a non-accelerated filer subject to Section 13 or 15(d) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribeExchange Act), a report containing substantially the same information (including applicable certifications) required to be contained in reports on Form 10-Q (or any successor or comparable form) that would containing the information required to be contained therein (or required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;successor or comparable form),
(3) within the promptly from time periods specified on Form 8-K to time after the occurrence of an event required to be therein reported, such other reported (and in any event within the time period specified for filing current reports on Form 8-K by the appropriate form for reporting current events containing substantially the same information required to be contained in SEC), reports on Form 8-K (or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided), that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that which the Company Issuer would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, subject to Section 13 or 15(d) of the extent U.S. Filers are permitted to do so by the SECExchange Act; in each case, case in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company financial information required by Rule 3-16 (or any successor thereto) of Regulation S-X shall not be so obligated required. Notwithstanding the foregoing, the Issuer will be deemed to file have furnished such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information referred to prospective purchasers of Notes, in addition to providing such information above to the Trustee and the Holders if the Issuer has filed such reports with the SEC via the XXXXX filing system and such reports are publicly available.
(b) If at any time any direct or indirect parent of the NotesIssuer (x) is or becomes a guarantor of the Notes (there being no obligation of any parent to do so), in each case within 15 days after (y) holds no material assets other than cash, Cash Equivalents and the time Capital Stock of the Company would be Issuer or of any direct or indirect parent corporation of the Issuer (and performs the related incidental activities associated with such ownership) and (z) complies with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision), the reports, information and other documents required to file be filed and furnished to Holders of the Notes pursuant to this Section 4.03 may, at the option of the Issuer, be filed or furnished by and be those of such direct and indirect parent of the Issuer rather than the Issuer.
(c) The Issuer will make such information with available to prospective investors upon request. In addition, the SECIssuer has agreed that, if for so long as any Notes remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to the Holders of the Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bd) In If the event that Issuer has designated any direct of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or indirect parent company collectively, would otherwise have been a Significant Subsidiary, then the quarterly and annual financial information required by this Section 4.03 shall include a reasonably detailed unaudited discussion (as determined in good faith by senior management of the Company becomes a guarantor Issuer) of the Notesfinancial condition and results of operations of the Issuer and the Restricted Subsidiaries of the Issuer separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(e) Notwithstanding anything herein to the contrary, the Company may satisfy Issuer will not be deemed to have failed to comply with any of its obligations agreements under this Section 4.03 with respect for purposes of Section 6.01(a)(4) until 120 days after the date any report hereunder is required to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing filed with the SEC of (or otherwise made available to Holders or the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2Trustee) posting on its website or providing pursuant to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumthis Section 4.03.
Appears in 2 contracts
Samples: Indenture (Domus Holdings Corp), Indenture (Realogy Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,furnish:
(1) within 90 days after the end of each fiscal year (or such shorter period year, all financial information of Holdings that would be applicable required to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may be contained in the future prescribe), an annual report on Form 10-K (K, or any successor or comparable form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being 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 Holdings’ independent registered public accounting firm;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period year, all financial information of Holdings that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-Kor any successor or comparable form, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within all current reports that would be required to be filed with the time periods specified SEC on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company or Holdings were a U.S. Filer; provided, that required to file such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SECreports; and
(4) any other information, documents and other reports that the Company which Holdings would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, subject to Section 13 or 15(d) of the extent U.S. Filers are permitted to do so by the SECExchange Act; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the . The Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of the Notes, in addition to providing such information to the Trustee and the Holders of the NotesHolders, in each case within 15 days after case, at the time Issuers’ expense and by the applicable date the Company would be required to file such information pursuant to the immediately preceding sentence. To the extent any such information is not furnished within the time periods specified above and such information is subsequently furnished, the Company shall be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the SECrights of the Holders under Article VI if Holders of at least 25% in principal amount of the then total outstanding Notes have declared the principal, premium, if it were subject any, interest and any other monetary obligations on all the then outstanding Notes to Section 13 be due and payable immediately and such declaration shall not have been rescinded or 15(d) of the Exchange Actcancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company will agree thatshall, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The annual and quarterly financial information required in this paragraph will include a reasonably detailed reconciliation, either on the face of the financial statements or in the footnotes thereto, in “Management’s discussion and analysis of financial condition and results of operations;” or other comparable section, of the financial condition and results of operations of the Company separate from the financial condition and results of operations of Holdings and its consolidated Subsidiaries.
(b) Substantially concurrently with the furnishing or making such information available to the Trustee pursuant to the immediately preceding paragraph, the Company shall also post copies of such information required by the immediately preceding paragraph on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access shall be given to Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), and securities analysts and market making financial institutions that are reasonably satisfactory to the Company. The Company shall hold quarterly conference calls that are publicly accessible after the Company’s financial statements for the prior fiscal period have been made available, provided that such conference calls shall be held no later than 5 Business Days after the date that such financial statements are required to be made available. No fewer than three Business Days prior to the date of the conference call required to be held in accordance with the preceding sentence the Company shall issue a press release to the appropriate U.S. wire services announcing the time and the date of such conference call and directing the beneficial owners of, and prospective investors in, the Notes and securities analysts to contact an individual at the Company (for whom contact information shall be provided in such press release) to obtain information on how to access such conference call.
(c) The Company shall be deemed to have satisfied the requirements of this section if Holdings 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 applicable rules and regulations of the SEC (after giving effect to any exemptive relief) because of the filings by Holdings; provided that such financial statements are accompanied by consolidating financial information for Holdings, the Company, the Subsidiary Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC to the extent such financial information would be required by the SEC.
(d) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Indenture shall permit the Company may to satisfy its obligations under in this Section 4.03 covenant with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall file with the SEC (and make available provide to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following reports:
(1) within 90 days after the end of each fiscal year (or such shorter period beginning with the fiscal year ending December 31, 2020), an annual report containing substantially all the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially under the same information (including applicable certifications) that Exchange Act if the Company would had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter beginning with the fiscal quarter ending March 31, 2020), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (or any successor formcontrols and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be required reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 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) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company were had been a U.S. Filerreporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; providedprovided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the financial statements included therein shall be prepared in accordance with GAAPOffering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, that if any quarterly report however, that, so long as the Company is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made subject to the Holders reporting requirements of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. , such reports (a) shall not be required to comply with Section 302 or 404 of the Xxxxxxxx-Xxxxx Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will the Company shall furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(bc) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, 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.
(f) In the event that any direct or indirect parent company of the Company becomes a guarantor Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect 4.06 to provide consolidated financial information relating to of the Company by furnishing consolidated financial information relating to such parent; provided, however provided that the same is (1) such financial statements are accompanied by consolidating financial information that explains in reasonable detail the differences between the information relating to for such parent, on the one handCompany, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements Trustee’s receipt of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to exceptions consistent with which the presentation Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of financial information in the Offering Memorandumany such report.
Appears in 1 contract
Samples: Senior Notes Indenture (WeWork Inc.)
Reports and Other Information. (a) Notwithstanding that The Issuer shall have the Company may not be subject Issuer’s annual consolidated financial statements audited by the Issuer’s independent registered public accountants. In addition, so long as any Notes are outstanding, the Issuer shall furnish to the reporting requirements Trustee (which shall have no duty to furnish to any other Person) and may (i) furnish to the Holders, (ii) post on its confidential password-protected website, (iii) post on Intralinks or any comparable confidential password-protected online data system or (iv) file with the SEC:
(1) an annual report and quarterly report including solely the following information: (a) annual financial statements with respect to an annual report and quarterly financial statements with respect to a quarterly report (including a consolidated balance sheet, consolidated statement of Section 13 operations and consolidated statement of cash flows prepared in accordance with GAAP), (b) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” containing information customarily included in such section when included in a Form 10-K or 15(dForm 10-Q, as applicable, filed with the SEC, (c) a presentation of EBITDA of the Issuer and its Restricted Subsidiaries for the trailing twelve month period substantially consistent with the presentation of “Adjusted EBITDA” in the Offering Memorandum and derived from such financial statements, and (d) with respect to the annual report only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(2) the information that would be required to be contained in filings with the SEC on Form 8-K by the Issuer if the Issuer were required to file such reports for any of the following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of the Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of the Issuer or any Restricted Subsidiary having a principal amount in excess of $50.0 million, (d) a change in certifying independent auditor with respect to the Issuer or any direct or indirect parent whose financial statements are provided as permitted by this Indenture, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of the Exchange Act or otherwise report Issuer, (f) change in fiscal year, (g) non-reliance on previously issued financial statements, (h) change of control transactions, (i) entry into material agreements, (j) entry into material financial obligations and (k) historical financial statements of an annual and quarterly basis on forms provided for such annual and quarterly reporting acquired business (relating to transactions required to be reported pursuant to rules Item 2.01 of Form 8-K to the extent and regulations in the form available to the Issuer (as determined by the Issuer in good faith) if the Issuer were a domestic reporting company under the Exchange Act); provided, however, that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, however, that no such current report will be required to include a summary of the terms of any employment or compensatory arrangement, agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director or officer; provided further that instead of providing such information pursuant to this clause (2), the Issuer will be deemed to have satisfied this requirement by providing the information in any report delivered pursuant to clause (1) within fifteen (15) Business Days after the occurrence of such event. In connection therewith and for the avoidance of doubt, all such reports (A) shall not be required to comply with Section 302, Section 404 or Section 906 of the Sxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K promulgated by the SEC, Regulation G promulgated by the Company SEC or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein), (B) shall file not be required to contain the separate financial information for Guarantors contemplated by Rule 3-05, Rule 3-09, Rule 3-10, Rule 3-16, Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC, (C) shall not be required to comply with Items 402, 405, 406, 407 and 601 of Regulation S-K promulgated by the SEC, (D) shall not be required to contain any segment reporting, (E) shall not be required to contain any exhibit (including any financial statements that would be required to be filed as an exhibit), (F) shall not be required to comply with rules or regulations promulgated by the SEC concerning Extensible Business Reporting Language (XBRL), (G) shall not be required to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its direct or indirect parents or Subsidiaries) and any director, manager or executive officer of the Issuer (or any of its direct or indirect parents or Subsidiaries) and (H) shall not be required to comply with the SEC (and make available requirements of Regulation S-X to the Trustee and Holders extent such requirements were not complied with in the Offering Memorandum or to otherwise provide any disclosure with respect to results of operations or any other financial or statistical disclosure not of a type included in the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,Offering Memorandum.
(1b) All such annual reports shall be furnished within 90 days after the end of each the fiscal year (or such shorter longer period that would as may be applicable to permitted by the Company SEC if it the Issuer were a U.S. company that is not a foreign private issuer and that is then subject to the SEC reporting requirements of Section 13 or 15(das a non-accelerated domestic filer) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)to which they relate, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein and all such quarterly reports shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) furnished within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may in if the future prescribe), Issuer were then subject to SEC reporting requirements as a report containing substantially non-accelerated domestic filer) to which they relate. All such current reports shall be furnished within fifteen (15) Business Days after the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) occurrence of each event that would be required if to be reported in such current report.
(c) The Issuer shall make available such information and such reports (as well as the Company were a U.S. Filer; provideddetails regarding the conference call described below) to any (i) Holder, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders (ii) beneficial owner of the Notes and Notes, (iii) bona fide prospective investor in the Trustee as if such report had been made on Form 10-Q and provided to Notes, (iv) bona fide securities analyst or (v) bona fide market maker in the Trustee and made available to HoldersNotes, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, by confidentially posting such information on its website or on Intralinks or any comparable password-protected online data system and making readily available any password or other login information to any such recipient or by filing such information with the SEC. The Trustee shall have no responsibility whatsoever to determine if such posting or filing has occurred. The Issuer shall hold a quarterly conference call for the Holders and securities analysts to discuss such financial information for the previous quarter no later than fifteen (15) Business Days after distribution of such financial information. The Issuer may require an acknowledgement from any such recipient in connection with access to its financial information or conference calls that (i) it will keep all information confidential, (ii) it will not use such information in violation of applicable securities laws and regulations, (iii) it will not use the information to compete with the Issuer and (iv) it is not a person principally engaged in a manner Similar Business or that complies derives a significant portion of its revenues from a Similar Business, and the Issuer may withhold access from any person who does not satisfy such conditions in all material respects its good faith judgment. While the Issuer or any direct or indirect parent of the Issuer is in registration with respect to an initial public offering, the requirements specified in such form; provided, however, that Issuer or any direct or indirect parent of the Company Issuer shall not be so obligated required to file disclose any information or take any actions which, in the view of the Issuer, would violate the securities laws or the SEC’s gun jumping rules. The Trustee will have no responsibility whatsoever to participate in any conference calls.
(d) Notwithstanding the foregoing, in the event that the Issuer or any direct or indirect parent of the Issuer is or becomes a public reporting company and files the financial statements and forms of reports required pursuant to Section 4.02(a) and holds the quarterly conference calls required by the immediately preceding paragraph, then the Issuer shall satisfy the requirements under this Section 4.02 upon the filing of such reports with the SEC or other securities commission or stock exchange and the holding of such conference calls; provided that if a direct or indirect parent of the Issuer files such reports with the SEC (and, as set forth in the second sentence of the third succeeding paragraph of this covenant, if the SEC does not permit direct or indirect parent has more than de minimis operations separate and apart from its ownership in the Issuer), such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders direct or indirect parent of the Notes, Issuer provides the consolidating information set forth in each case within 15 days after the time the Company would be required second sentence of Section 4.02(g). The Trustee shall have no responsibility to file determine whether such information with the SEC, if it were subject filing has occurred and will have no responsibility whatsoever to Section 13 or 15(dparticipate in any conference calls.
(e) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will The Issuer shall also furnish to Holders and to Holders, securities analysts and prospective investors, investors upon their request, request 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.
(bf) In If the event that Issuer has designated any direct of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or indirect parent company group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company becomes Issuer, then the annual and quarterly information required by Section 4.02(a)(1) shall include a guarantor reasonably detailed presentation, either on the face of the Notesfinancial statements or in the footnotes thereto, of the financial condition and results of operation of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Issuer.
(g) Notwithstanding the foregoing, the Company Issuer may satisfy its obligations under in this Section 4.03 4.02 with respect to financial information relating to the Company Issuer by furnishing financial information relating to such parenta direct or indirect parent of the Issuer consistent with this Section 4.02. Such reports need not include financial statements required by Rules 3-10, 3-16, 13-01 or 13-02 of Regulation S-X; providedprovided that if the direct or indirect parent has more than de minimis operations separate and apart from its ownership in the Issuer, however that then the same is accompanied by financial statements of the direct or indirect parent will be required to provide consolidating information information, which need not be audited, that explains in reasonable detail the differences between the information relating to such parentparent and its subsidiaries, on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand.
(ch) Notwithstanding anything herein to the foregoingcontrary, the requirements Issuer shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(c) until 120 days after the receipt of written notice delivered by the Trustee or the Holders of at least 30% in aggregate principal amount of the Notes then outstanding voting as a single class. Notwithstanding anything herein to the contrary, any failure to comply with this Section 4.03 4.02 shall be deemed satisfied prior automatically cured when the Issuer or any direct or indirect parent of the Issuer, as the case may be, makes available all required reports to the commencement Holders.
(i) Delivery of reports, information and documents to the Trustee under this Indenture is for informational purposes only and the information 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 Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no duty to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with any of the Exchange Offer covenants described herein, to determine whether any reports, information or the effectiveness of the Shelf Registration Statement by:
(1) the filing documents have been posted on any website or online data system or filed with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website other securities commission or providing stock exchange or to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such review or analyze reports, subject information or documents delivered to exceptions consistent with the presentation of financial information it or to participate in the Offering Memorandumany conference calls.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report reports on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall (a) file with the SEC (unless the SEC will not accept such filing), and make available (b) deliver to the Trustee and and,upon written request, the registered Holders of the Notes (without exhibits)Notes, without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,:
(1) within 90 days after the end of each fiscal year time periods specified by the Exchange Act (including all applicable extension periods), an annual report on Form 10-K (or any successor or comparable form) containing the information required to be contained therein in all material respects (or required in such shorter period successor or comparable form);
(2) within the time periods specified by the Exchange Act (including all applicable extension periods), a quarterly report on Form 10-Q (or any successor or comparable form); and
(3) all current reports that would be applicable required to be filed with the SEC on Form 8-K (or any successor or comparable form).
(b) In the event that the Company is not permitted to file such reports with the SEC pursuant to the Exchange Act, the Company shall nevertheless deliver to the Trustee and make available such Exchange Act reports to the Holders of the Notes as if it the Company were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified by the Exchange Act (including all applicable extension periods), which requirement may be satisfied by posting such information on Form 8-K after the occurrence of an event required to be therein reportedits website, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (Intralinks or any successor form) that would be required if the Company were comparable password-protected online data system which will require a U.S. Filer; provided, that such reports may be furnished, rather than filed, confidentiality acknowledgment (with a copy to the extent U.S. Filers are permitted Trustee). The Company will hold quarterly conference calls (for the avoidance of doubt, the Company’s quarterly earnings call shall satisfy such requirement) for the Holders and securities analysts to do so by discuss such financial information for the SEC; andprevious reporting period no later than ten Business Days after distribution of such financial information.
(4c) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree thatshall, for so long as any Notes are outstanding, it will furnish make available to the Holders of the Notes and to securities analysts 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 the Notes are not freely transferable under the Securities Act.
(bd) In Delivery of such reports and information to the event that Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(e) The Company will be deemed to have satisfied the information and reporting requirements of this Section 4.03 if the Company (or any direct or indirect parent company of the Company becomes a guarantor of Company) has filed reports or registration statements containing such information with the NotesSEC via the SEC’s Electronic Data Gathering, Analysis and Retrieval system (or any successor system) within the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to time periods specified above and such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handreports are publicly available.
(cf) Notwithstanding the foregoing, the requirements of such reports and other information required to be provided pursuant to this Section 4.03 shall be deemed satisfied prior to the commencement may be, rather than those of the Exchange Offer Company, those of any direct or the effectiveness indirect parent of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCompany.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject So long as any Notes are outstanding:
a. Holdings shall furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,Trustee:
(1) i. within 90 days after the end of each fiscal year of Holdings ending after the Issue Date (or such shorter longer period that would as may be applicable to permitted by the Company SEC and any successor thereto if it were a U.S. company that is not a foreign private issuer and that is Holdings was then subject to the such SEC reporting requirements of Section 13 or 15(d) as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the Exchange Act (Act), the consolidated financial statements of Holdings for such year prepared in accordance with GAAP, together with a report thereon by Holdings’ independent auditors, and a “U.S. Filer”) as the SEC may Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in the future prescribe), an annual report Annual Report on Form 10-K filed with the SEC by Holdings (or any successor if Holdings were required to prepare and file such form); it being understood that (x) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would Holdings shall not be required to include in Form 10any consolidating financial information with respect to Holdings, the Issuer, the Co-K (Issuer, any other Guarantor or any successor formother Affiliate of Holdings, or any separate financial statements or information for Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings and (y) if applicable, Holdings shall provide guarantor/non-guarantor financial data consistent with the Company were a U.S. Filer; provided, that guarantor/non-guarantor financial data presented in the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders “Summary—The Offering” section of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SECOffering Memorandum;
(2) ii. within 45 days after the end of each of the first three fiscal quarters of in each fiscal year of Holdings (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may in and any successor thereto if Holdings was then subject to such SEC reporting requirements as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the future prescribeExchange Act), a report containing substantially beginning with the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if first such fiscal quarter ending after the Company were a U.S. Filer; providedIssue Date, that the condensed consolidated financial statements included therein shall be of Holdings for such quarter prepared in accordance with GAAP, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in a Quarterly Report on Form 10-Q filed with the SEC by Holdings (if Holdings were required to prepare and file such form); it being understood that (x) Holdings shall not be required to include any consolidating financial information with respect to Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings, or any separate financial statements or information for Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings and (y) if applicable, Holdings shall provide guarantor/non-guarantor financial data consistent with the guarantor/non-guarantor financial data presented in the “Summary—The Offering” section of the Offering Memorandum; and
iii. information substantially similar to the information that would be required to be included in a Current Report on Form 8-K filed with the SEC by Holdings (if Holdings were required to prepare and file such form) pursuant to Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountants), Item 4.02 (Non Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant) or Items 5.02(b) and (c) (Departure of Directors or Certain Officers)(other than with respect to information otherwise required or contemplated by Item 402 or Regulation S-K promulgated by the SEC); Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers), of such form, within 10 days after the date of filing that would have been required for a current report on Form 8-K; provided, however, that no such information shall be required to include (x) any exhibits (except for agreements evidencing material Indebtedness) or (y) a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between Holdings (or any of its Subsidiaries) and any director, manager or executive officer of Holdings (or any of its Subsidiaries); and provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, no such information referenced under this clause (iii) shall be required to be made available or furnished if Holdings determines in its good faith judgment that such event is not material to the Holders of the Notes or the business, assets, operations or financial position of Holdings and its Restricted Subsidiaries, taken as a whole. Notwithstanding the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holdersforegoing, in lieu of being filed with the SEC;
(3A) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would Holdings will not be required to file with furnish any information, certificates or reports required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S K, (ii) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC if it were a U.S. Filer; providedwith respect to any non-generally accepted accounting principles financial measures contained therein, that or (iii) Rule 3-09 of Regulation S-X (including any successor provision), (B) such reports may information will not be furnished, rather than filed, required to contain the extent U.S. Filers are permitted to do so separate financial information for Subsidiaries contemplated by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in Rule 3-10 or Rule 3-16 of Regulation S-X (including any successor provision) and (C) such form; provided, however, that the Company information shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 present compensation or 15(d) of the Exchange Actbeneficial ownership information. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any the Notes are outstandingremain subject to this paragraph (a) and constitute “restricted securities” under Rule 144 under the Securities Act, it Holdings will furnish to Holders and to securities analysts thereof and prospective investorsinvestors in such Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) (as in effect on the Issue Date) under the Securities Act.
b. subject to clause (d) below, Holdings will make available such information and such reports (as well as the details regarding the conference call described below) to any Holder and, upon request, to any beneficial owner of the Notes, in each case, by posting such information and reports on its website, on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information and reports readily available to any Holder, any prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information and reports as confidential or accesses such information and reports on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that Holdings shall post such information and reports thereon and make readily available any password or other login information to any such Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that Holdings may deny access to any competitively-sensitive information and reports otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of Holdings and its Subsidiaries to the extent that Holdings determines in good faith that the provision of such information and reports to such Person would be competitively harmful to Holdings and its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein). Holdings will hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the Notes) to discuss such financial information (including a customary Q&A session) no later than 10 business days after distribution of such financial information, it being agreed, for avoidance of any doubt, that Holdings’ customary quarterly earnings’ call shall satisfy this covenant.
c. Notwithstanding clauses (a) or (b) In above, the event that obligations in clauses (a)(i), (a)(ii) and (a)(iii) above may be satisfied with respect to financial information of Holdings and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent company of Holdings or (B) Holdings’ (or any direct or indirect parent thereof, as applicable) Form 10-K, 10-Q or 8-K as applicable filed with the Company becomes a guarantor of the NotesSEC, the Company may satisfy its obligations under this Section 4.03 provided that, with respect to financial information relating each of clauses (A) and (B) of this paragraph, to the Company by furnishing financial extent such information relating relates to a parent of Holdings, such parent; provided, however that the same information is accompanied by consolidating or other information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Holdings and the Company and its Restricted Subsidiaries on a standalone basis, on the other hand; provided further that if there are no material differences in such information, no such consolidating or other information shall be required.
d. Holdings will be deemed to have furnished such information referred to above (including the immediately preceding clause (c)) Notwithstanding to the foregoingTrustee and the Holders if Holdings or any direct or indirect parent of Holdings has filed such information with the SEC via the XXXXX (or successor) filing system and such information is publicly available.
e. To the extent any such reports referred to in paragraph (a) above is not so filed or furnished, as applicable, within the requirements time periods specified above and such reports are subsequently filed or furnished, as applicable, Holdings 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.
f. Delivery of reports, information and documents to the Trustee under this Section 4.03 shall be deemed satisfied prior to are for informational purposes only and the commencement Trustee’s receipt of the Exchange Offer foregoing shall not constitute constructive or the effectiveness actual notice of the Shelf Registration Statement by:
any information contained therein or determinable from information contained therein, including Parent’s compliance with any of its covenants hereunder (1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing as to which the Trustee within 15 days of the time periods after the Company would have been required is entitled to file annual and interim reports with the SEC, the financial information (including a “Managementrely exclusively on Officer’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCertificates).
Appears in 1 contract
Samples: Indenture (GoDaddy Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company shall file with the SEC (and make available Hexion will provide to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non- accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non- accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (other than compensation information), 5.03(b) and Item 9.01 (only to the extent relating to any of the foregoing) of Form 8-K if Hexion had been a reporting company under the Exchange Act; provided, however, that no such current reports (or Items thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be provided (or included) if Hexion determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of Hexion and its Restricted Subsidiaries, taken as a whole. In addition to providing such information to the Trustee, Hexion shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) or (iii), by posting such information to its website (or any successor formof Hexion’s parent companies) if or on IntraLinks or any comparable online data system or website. Notwithstanding the Company were a U.S. Filer; providedforegoing, (A) Hexion will not be required to furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial statements included therein shall measures contained therein, (B) such reports will not be prepared in accordance with GAAP; providedrequired to contain the separate financial information for Subsidiary Guarantors contemplated by Rule 3-09, furtherRule 3-10 or Rule 3-16 of Regulation S-X, that if or include any annual report is filed on Form 20-F, the exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in the Offering Circular and shall not be required to file with the SEC if it were a U.S. Filer; providedpresent compensation or beneficial ownership information.
(b) The financial statements, that such reports information and other documents required to be provided as described above, may be furnishedthose of (i) Hexion or (ii) any direct or indirect parent of Hexion (any such entity, rather than fileda “Reporting Entity”), so long as in the case of (ii) such direct or indirect parent of Hexion shall not conduct, transact or otherwise engage, or commit to the extent U.S. Filers are permitted to do so by the SEC; in each caseconduct, transact or otherwise engage, in a manner that complies in any business or operations other than its direct or indirect ownership of all material respects with of the requirements specified in such formEquity Interests in, and its management of Hexion; providedprovided that, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit financial information so furnished relates to such filingdirect or indirect parent of Hexion, in which event the Company will make available same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such information to prospective purchasers of Notesparent, in addition to providing such information to on the Trustee one hand, and the Holders of information relating to Hexion and its Restricted Subsidiaries on a standalone basis, on the Notesother hand.
(c) Hexion shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, Hexion will be deemed to have delivered such reports and information referred to in this Section 4.02 to the Trustee and the holders if Hexion or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided to the Trustee and the holders on Hexion’s website (or that of any of Hexion’s parent companies). The Trustee shall have no obligation to monitor whether Hexion (or any of Hexion’s parent companies) posts such reports, subject to exceptions consistent information and documents on its website or the SEC’s XXXXX service, or collect any such information from Hexion’s (or any of Hexion’s parent companies) website or the SEC’s XXXXX service. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the presentation of financial information in the Offering Memorandumtransactions contemplated hereunder.
Appears in 1 contract
Samples: Indenture (Hexion Inc.)
Reports and Other Information. (a) Notwithstanding that The Borrower shall provide the Company may not be subject Administrative Agent, who will deliver to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits)Lenders, without cost to any Holdereach Lender, the following reports within 15 days after the Company files them with the SEC) from and after the Issue Date,specified time frames:
(1i) within 90 days after the end of each fiscal year (or such shorter period that would as may be applicable to required by the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribeSEC), an annual report (which, if permitted under applicable rules of the SEC, may be the annual report of Holdings) containing financial statements and a management’s discussion and analysis of financial condition and results of operations consistent with that which would be required in an SEC report on Form 10-K (or any successor form) or Form 20-F (or any successor formor comparable forms) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K be contained therein (or any required in such successor or comparable form) if the Company were a U.S. Filer); provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would as may be applicable to required by the Company if it were a U.S. Filer as the SEC may in the future prescribeSEC), a quarterly report (which, if permitted under applicable rules of the SEC, may be the quarterly report of Holdings) containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) financial statements and a management’s discussion and analysis of financial condition and results of operations consistent with that which would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly an SEC report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8or 6-K (or any successor formor comparable forms).
(b) that would The Borrower shall make the information required by Section 9.1(a) available to prospective lenders upon request.
(c) Notwithstanding the foregoing Sections 9.1(a) and (b), the Borrower will be deemed to have furnished the reports required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, by Sections 9.1(a) and (b) to the extent U.S. Filers are permitted to do so by Administrative Agent and the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC Lenders if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to or any Parent of the extent U.S. Filers are permitted to do so by the SEC; in each caseBorrower has filed (or, in the case of a manner that complies in all material respects with the requirements specified in such form; providedForm 6-K, however, that the Company shall not be so obligated to file furnished) such reports with the SEC if via the SEC does not permit XXXXX filing system and such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes reports are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Actpublicly available.
(bd) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company The Borrower may satisfy its obligations under this Section 4.03 9.1 with respect to financial information relating to the Company Borrower by furnishing financial information relating to such parentany Parent; providedprovided that, however that if Regulation S-X under the Securities Act were to apply and so require, the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentany Parent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company Borrower, any Subsidiary Guarantors, if any, and its Restricted the other Subsidiaries of the Borrower on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding In the foregoingevent that the Borrower changes its fiscal year end from the fiscal year end used by the Borrower as of the Closing Date, the requirements Borrower shall promptly give notice of this Section 4.03 shall be deemed satisfied prior such change to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumAdministrative Agent.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject The Borrower shall provide to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECLenders, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as soon as the SEC may same are available, and in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) event within 45 days after the end close of each of the first three fiscal quarters of each fiscal year of the Borrower, a combined balance sheet of the Borrower and the Management Company and any Subsidiaries of the Borrower as of the end of such quarter, together with combined statements of income, changes in cash and shareholders' equity for the Borrower and the Management Company and such Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter. All such statements shall be prepared on a consistent basis with the prior year's statements, in accordance with GAAP (or such shorter period that would except as may be applicable to the Company if it were a U.S. Filer as the SEC may expressly disclosed therein) in the future prescribe), a report containing substantially form included in the same information (including applicable certifications) required to be contained in Borrower's Form 10-Q as filed with the SEC, shall be certified by the Borrower's chief financial officer, principal accounting officer or chief executive officer, and shall be accompanied by a certificate of such officer stating that as of the date of such certificate and to the best of his knowledge, after reasonable inquiry: (or any successor formi) that would be required if the Company were a U.S. Filer; provided, that the such financial statements included therein shall be prepared present fairly, in all material respects, the combined financial position of the Borrower and the Management Company and the results of their combined operations for such quarter and for the Borrower's fiscal year-to-date in accordance with GAAP, subject to routine year-end audit adjustments; providedand (ii) no event has occurred which constitutes an Event of Default or would constitute an Event of Default with the giving of notice or the lapse of time or both, furtheror, that if any quarterly report an Event of Default or such an event has occurred and is filed on Form 6-Kcontinuing, a statement as to the nature thereof and the action which the Borrower has taken or proposes to take with respect thereto. Concurrently with the delivery of the foregoing materials, the certifications Borrower shall furnish, in such detail as is reasonably required by Form 10-Qthe Administrative Agent (x) a Compliance Certificate, but not Form 6-K, shall be made to documenting the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects Borrower's compliance with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee sections 7.16 and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.section 8
Appears in 1 contract
Samples: Credit Agreement (First Union Real Estate Equity & Mortgage Investments)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, for periods ending after the Company Issue Date, the Issuer shall file with the SEC (or attempt to file with the SEC if the SEC will not accept such a filing), and make available to provide the Trustee and Holders of the Notes (without exhibits)with copies thereof, without cost to any each Holder, within 15 days after the Company it files (or attempts to file) them with the SEC) from and after the Issue Date,
(1i) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of time periods specified by the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)for non-accelerated filers, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor comparable form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained therein (or required in such successor or comparable form);
(ii) within the time periods specified by the Exchange Act for non-accelerated filers, a quarterly report on Form 10-Q (or any successor or comparable form); and
(iii) all current reports that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall to be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified SEC on Form 8-K after K. In addition, the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information available to prospective purchasers investors upon request. Delivery of Notessuch reports, in addition to providing such information and documents to the Trustee is for informational purposes only and the Holders Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the NotesIssuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively (subject to Article 7 hereof) on Officers’ Certificates). The Trustee shall have no liability or responsibility for the filing, in each case within 15 days after timeliness or content of any such report or information.
(b) For so long as the time Notes remain outstanding during any period when the Company would be required to file such information with the SEC, if it were Issuer is not subject to Section 13 or 15(d) of the Exchange Act. In addition, the Issuer shall furnish to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bc) In So long as Affinion Holdings is a Guarantor (or any other Parent of the event that Issuer becomes a Guarantor) and holds no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer or of any direct or indirect parent company corporation of the Company becomes a guarantor Issuer (and performs the related incidental activities associated with such ownership), the reports, information and other documents required to be filed and furnished to Holders and the Trustee pursuant to this Section 4.02 may, at the option of the NotesIssuer, be filed by and be those of Affinion Holdings or such other Parent rather than the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handIssuer.
(cd) Notwithstanding the foregoing, the requirements reports, information and other documents that are filed or furnished to holders of the Notes and the Trustee pursuant to this Section 4.03 shall be deemed satisfied prior to 4.02 by the commencement Issuer or Affinion Holdings (or any other Parent of the Exchange Offer or the effectiveness Issuer that becomes a Guarantor) will not be required to contain (x) separate financial statements of the Shelf Registration Statement by:
(1any Subsidiary Guarantor required by Rule 3-10(a)(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X promulgated under the Securities Act at any time, (y) separate financial statements of any Subsidiary of the Issuer required by Rule 3-16 of Regulation S-X promulgated under the Securities ActAct at any time or (z) financial information required by Rule 3-10 of Regulation S-X promulgated under the Securities Act at any time when the conditions for excluding separate financial statements set forth in paragraphs (b), or(c), (d), (e), (f) or (g) are not met.
(2e) posting on its website or providing Notwithstanding the foregoing, the Issuer shall be deemed to have furnished such reports, information and other documents referred to above to the Trustee within 15 days of and the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in holders if it has filed such reports, subject to exceptions consistent information or other documents with the presentation of financial information in SEC via the Offering MemorandumXXXXX filing system and such reports are publicly available.
Appears in 1 contract
Samples: Indenture (Affinion Group, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company shall file with the SEC (and make available Issuer will provide to the Trustee and Holders and, upon request, to beneficial owners of the Notes (without exhibits)Notes, without cost a copy of all of the information and reports referred to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,below:
(1i) within 90 days after the end of each fiscal year (or in all cases such shorter longer period that would as may be applicable permitted by the SEC if the Issuer were then subject to such SEC reporting requirements as a non-accelerated filer), annual audited financial statements of the Reporting Entity for such fiscal year including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the Company if it were periods presented and a U.S. company that is not a foreign private issuer and that is subject to report on the reporting requirements of Section 13 or 15(d) annual financial statements by the Reporting Entity’s independent registered public accounting firm (all of the Exchange Act (foregoing financial information to be prepared on a “U.S. Filer”) as basis substantially consistent with the SEC may corresponding financial information included in the future prescribeOffering Memorandum), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or in all cases such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may if the Issuer were then subject to such SEC reporting requirements as a non-accelerated filer), unaudited financial statements of the Reporting Entity for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the future prescribeOffering Memorandum), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(3iii) within 15 days after the time periods period specified for filing current reports on Form 8-K after by the occurrence SEC, current reports containing substantially all of an event the information that would be required to be therein reported, such other reports filed in a Current Report on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (or any successor formother than compensation information), 5.03(b) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, and Item 9.01 (only to the extent U.S. Filers are permitted relating to do so by any of the SEC; and
(4foregoing) any other information, documents and other reports that of Form 8-K if the Company would be required to file with Issuer had been a reporting companies under the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; Exchange Act: provided, however, that the Company shall not no such current report will be so obligated required to file such reports with the SEC be furnished if the SEC does Issuer determines in its good faith judgment that such event is not permit such filingmaterial to holders or the business, in which event assets, operations, financial position or prospects of the Company will make available such information to prospective purchasers of NotesIssuer and its Restricted Subsidiaries, in taken as a whole. In addition to providing such information to the Trustee, the Issuer shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to clauses (i), (ii) or (iii) of this Section 4.02(a), by posting such information to its website or on IntraLinks or any comparable password-protected online data system or website.
(b) Notwithstanding the foregoing, (a) the Issuer will not be required to furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (b) such reports will not be required to contain the separate financial information for Guarantors or Subsidiaries whose securities are pledged to secure the Notes contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X, and (c) such reports shall not be required to present compensation or beneficial ownership information.
(c) The Issuer will be deemed to have furnished such reports referred to in clause (a) above to the Trustee and the Holders of holders if the Notes, in each case within 15 days after the time the Company would be required to file Issuer or any other Reporting Entity has filed such information with the SECSEC via the XXXXX (or successor) filing system and such information is publicly available.
(d) For so long as the Issuer has designated certain of its Subsidiaries as Unrestricted Subsidiaries, if it were subject then the quarterly and annual financial information required to be provided by this Section 13 or 15(d) 4.02 will include a reasonably detailed presentation, either on the face of the Exchange Act. In additionfinancial statements or in the footnotes thereto, to and in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, 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.
(e) To the extent not satisfied by the foregoing, the Company Issuer will agree that, for so long as any Notes are outstanding, it will furnish to Holders holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(bf) In The financial statements, information and other documents required to be provided as described above, may be those of (i) the event that Issuer, (ii) Taminco or (iii) any direct or indirect parent company of the Company becomes Issuer (any such entity, a guarantor “Reporting Entity”), so long as in the case of (ii) and (iii), Taminco or such direct or indirect parent of the NotesIssuer shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than its direct or indirect ownership of all of the Company may satisfy Equity Interests in, and its obligations under this Section 4.03 with respect to management of the Issuer; provided that, if the financial information relating so furnished relates to Taminco or such direct or indirect parent of the Company by furnishing financial information relating to such parent; providedIssuer, however that the same is accompanied by consolidating information that explains in reasonable detail a reasonably detailed description of the quantitative differences between the information relating to Taminco or to such parent, on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cg) Notwithstanding Delivery of such reports, information and documents to the foregoingTrustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof 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 under this Indenture (as to which the Trustee is entitled to certificates).
(h) So long as Notes are outstanding, the requirements Issuer will also:
(i) as promptly as reasonably practicable after furnishing to the Trustee the annual and quarterly reports required by clauses (a)(i) and (a)(ii) of this Section 4.03 shall be deemed satisfied 4.02, hold a conference call to discuss such reports and the results of operations for the relevant reporting period; and
(ii) post to its website or on IntraLinks or any comparable password-protected online data system, which will require a confidentiality acknowledgment (but not restrict the recipients of such information in trading of securities of the Issuer or its affiliates), prior to the commencement date of the Exchange Offer conference call required to be held in accordance with subclause (i) of this Section 4.02(h), announcing the time and date of such conference call and either including all information necessary to access the call or the effectiveness informing holders of Notes, prospective investors, market makers affiliated with any initial purchaser of the Shelf Registration Statement byNotes and securities analysts how they can obtain such information, including, without limitation, the applicable password or other login information.
(i) Any person who seeks to participate in any conference calls or requests or accesses the financial statements, information and other documents, in each case, required by this Section 4.02, will be required to represent to the Issuer (to the Issuer’s reasonable good faith satisfaction) that:
(1i) the filing with the SEC it is a holder of the Exchange Offer Registration Statement or Shelf Registration StatementNotes, and any amendments thereto, with such financial information that satisfies Regulation S-X a beneficial owner of the Securities ActNotes, ora prospective investor in the Notes, a market maker or an analyst covering the Issuer or the Notes; and
(2ii) posting on its website it is not a Person (which includes such Person’s parents, sister companies or providing to the Trustee within 15 days subsidiaries) that (i) is a customer of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information Issuer or its Subsidiaries principally engaged in a Similar Business or (including ii) derives a “Management’s Discussion and Analysis significant portion of Financial Condition and Results its revenues from operation of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memoranduma Similar Business.
Appears in 1 contract
Samples: Indenture (TAMINCO ACQUISITION Corp)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECCommission, the Company Issuer shall (x) file with the SEC Commission and (and make available to y) provide the Trustee and Holders of the Notes (without exhibits)with copies thereof, without cost to any each Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following information:
(1a) within 90 days after the end of each fiscal year (or such shorter period year, annual financial information that would be applicable required to be contained in a filing with the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report Commission on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially if the same information (including applicable certifications) that the Company would be Issuer were required to include in Form 10-K file such a form, including (or any successor formi) if a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (ii) a report on the Company were a U.S. Filer; provided, that the annual financial statements included therein shall be prepared in accordance with GAAP; providedby the Issuer’s certified independent accountants, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period commencing with the fiscal quarter ending March 31, 2010, all quarterly information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if a filing with the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made Commission on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company Issuer were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SECa form, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) ”; provided, however, that would the Issuer shall not be so obligated to file such reports with the Commission if the Commission does not permit such filing, in which event the Issuer shall make available such information to securities analysts and prospective investors upon request, in addition to providing such information to the Trustee and the Holders. The Issuer shall also furnish to Holders, securities analysts and prospective investors upon request the information required to be included delivered pursuant Rule 144A(d)(4) under the Securities Act. Notwithstanding the foregoing, the Issuer’s delivery obligations to the Trustee and Holders described in this Section 4.02 shall be deemed to be satisfied by posting of the information and reports referred to in clauses (a) and (b) above on the Issuer’s website or one maintained on its behalf for such purpose; provided that the Issuer shall use reasonable efforts to inform Holders and the Trustee of the availability of such information and reports, subject which may be satisfied by, among other things, a press release on any national business press release wire service. In addition, availability of the foregoing materials on the Commission’s XXXXX service shall be deemed to exceptions consistent with satisfy the presentation of financial information in Issuer’s delivery obligations to the Offering MemorandumHolders and the Trustee.
Appears in 1 contract
Samples: Purchase Agreement (GeoEye, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding and whether or not required by the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by of the SEC, the Company Parent shall file with the SEC (and make available furnish to the Trustee and Holders of the Notes (without exhibits), without cost to any HolderNotes, within 15 five days after of the Company files them with time periods specified in the SEC) from ’s rules and after the Issue Date,regulations:
(1i) within 90 days after the end of each fiscal year (or such shorter period all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Parent were required to file such reports; and
(ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Parent were required to file such reports. The availability of the foregoing materials on the SEC’s EXXXX service (or its successor) shall be deemed to satisfy the Parent’s delivery obligation.
(b) All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an such reports. Each annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially will include a report on the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the Parent’s consolidated financial statements included therein shall be prepared in accordance with GAAP; providedby the Parent’s certified independent accountants, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided 10-K will include a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that describes the financial condition and results of operations of the Parent and its consolidated Subsidiaries.
(c) If, at any time, the Parent is no longer subject to the Trustee periodic reporting requirements of the Exchange Act for any reason, the Parent shall nevertheless continue filing the reports specified in clauses (a) and made available to Holders, in lieu (b) of being filed this Section 4.03 with the SEC;
(3) SEC within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with above unless the SEC if it were will not accept such a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company filing. The Parent shall not be so obligated to file such reports with take any action for the purpose of causing the SEC if the SEC does not permit to accept any such filingfilings. If, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by notwithstanding the foregoing, the Company SEC will agree not accept the Parent’s filings for any reason, the Parent shall post the reports referred to in clauses (a) and (b) of this Section 4.03 on a website within the time periods that would apply if the Parent were required to file those reports with the SEC.
(d) If, at any time, the Parent has designated any of its Subsidiaries as Unrestricted Subsidiaries, then either on the face of the financial statements or in the footnotes to the financial statements and in any “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” or other comparable section, the Parent shall provide an analysis and discussion of the material differences with respect to the financial condition and results of operations of the Parent and its Restricted Subsidiaries as compared to the Parent and its Subsidiaries (including such Unrestricted Subsidiaries).
(e) In addition, the Parent agrees that, for so long as any Notes are outstandingremain outstanding and constitute “restricted securities” under Rule 144 under the Securities Act, it will shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bf) In [Reserved].
(g) Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or other information required by this covenant shall be deemed cured (and the event that any direct Parent shall be deemed to be in compliance with this Section 4.03) upon furnishing or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under filing such report or other information as contemplated by this Section 4.03 with respect to financial information relating (but without regard to the Company by furnishing financial date on which such report or other information relating is so furnished or filed); provided that such cure shall not otherwise affect the rights of Holders under Article 6 if payment of the Notes has been accelerated in accordance with the terms of this Indenture and such acceleration has not been rescinded or cancelled prior to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handcure.
(ch) Notwithstanding the foregoingDelivery of such reports, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, information and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing documents to the Trustee within 15 days 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 time periods after Parent’s compliance with any of its covenants under this Indenture (as to which the Company would have been required Trustee is entitled to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumrely exclusively on Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (Ocwen Financial Corp)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be required to be or remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall Issuer will file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or unless such shorter period that would be applicable to the Company if it were a U.S. company that filing is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of permitted under the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) ), so long as any other Notes are Outstanding, the annual reports, information, documents and other reports that the Company would be Issuer is required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if it the Issuer were a U.S. Filer; providedso subject.
(b) Notwithstanding the foregoing, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall Issuer will not be so obligated to file such reports with the SEC if the SEC does not permit such filing; provided, however, in which event such case, the Company will make available such information to prospective purchasers of Notes, in addition to providing Issuer shall provide such information to the Trustee and the Holders of Holders, prospective investors that certify they are qualified institutional buyers, securities analysts and market makers (“Permitted Parties”) by the Notes, in each case within 15 days after date the time the Company Issuer would be required to file such information with pursuant to the SEC, if it were preceding paragraph. The requirements set forth in this paragraph and the preceding paragraph may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Issuer or a third party) to which Permitted Parties are given access and to which such information is posted.
(c) For so long as the Issuer is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the Issuer shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in quarterly and annual conference calls to discuss results of operations with Permitted Parties. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Permitted Parties to contact the investor relations office of the Issuer to obtain access to the conference call.
(d) At any time when the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall use its reasonable efforts to participate in quarterly and annual private conference calls to discuss results of operations with Permitted Parties within 15 business days after the date on which quarterly and annual, as the case may be, reports are required to be furnished under this Indenture. In addition, The Issuer shall employ commercially reasonably means expected to reach Permitted Parties no fewer than three business days prior to the extent date of the conference call required to be held to announce the time and date of such conference call and either including all information necessary to access the call or directing Permitted Parties to contact the appropriate person at the Issuer to obtain such information.
(e) At any time when the Issuer is not satisfied by subject to the foregoingreporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will agree that, for so long as any Notes are outstanding, it Issuer will furnish to Holders and to securities analysts and prospective investors, upon their requestthe requests of such Holders, the 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.
(bf) In Delivery of reports, information and documents to the event that Trustee is for informational purposes only and its receipt of such reports shall not constitute constructive notice of any direct information contained therein or indirect parent company determinable from information contained therein, including the Issuer’s compliance with any of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations covenants under this Section 4.03 Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the any reports or other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing documents filed with the SEC of the Exchange Offer Registration Statement or Shelf Registration StatementXXXXX or website under this Indenture, and or participate in any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumconference calls.
Appears in 1 contract
Samples: Indenture (Entegris Inc)
Reports and Other Information. (a) Notwithstanding So long as any Notes are outstanding notwithstanding that following the Issue Date the Company may not be required to be or remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall will file with the SEC Commission (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or unless such shorter period that would be applicable to the Company if it were a U.S. company that filing is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of permitted under the Exchange Act (a “U.S. Filer”) or by the Commission), so long as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FNotes are outstanding, the certifications required by Form 10-Kannual reports, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company is required to file with the Commission pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject (the “Required Filing Dates”); provided that at any time the Company is not required to be subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act and the Company is not permitted by the Exchange Act or the Commission to file with the Commission the annual reports, information, documents and other reports that it would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree thatwithin 15 days of each Required Filing Date provide to the Trustee and, for so long as any Notes are outstandingupon request, it will furnish to Holders and to securities analysts and prospective investors, upon their request, a copy of all of the information and reports (without exhibits) it would have been required to be delivered file with the Commission pursuant to Rule 144A(d)(4Section 13(a) under the Securities Actor 15(d) if it were so subject.
(b) In The Company will be deemed to have satisfied the event that requirements of Section 3.2(a) if any direct Parent Entity is subject to the reporting requirements of Section 13(a) or indirect parent company 15(d) of the Company becomes a guarantor Exchange Act and has filed reports required under Section 13(a) or 15(d) of the Notes, Exchange Act with the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating Commission via the EXXXX (or successor) filing system and such reports are publicly available; provided that to the Company by furnishing financial extent such information relating is related to such parent; providedParent Entity, however that the same such information is accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the differences between the information relating to of such parentParent Entity, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone stand-alone basis, on the other hand.
(c) Notwithstanding the foregoingDelivery of reports, the requirements of information and documents (including, without limitation, reports contemplated under this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(13.2) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the time periods after Company’s compliance with any of its covenants hereunder (as to which the Company would Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have been required to file annual and interim reports with no liability or responsibility for the SECfiling, the financial information (including a “Management’s Discussion and Analysis timeliness or content of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Samples: Indenture (Lannett Co Inc)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company Issuer shall file with the SEC (and make available provide to the Trustee and and, upon request, to the Holders a copy of all of the Notes (without exhibits), without cost information and reports referred to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,below:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would as may be applicable permitted by the SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), annual audited financial statements for such fiscal year, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the Company if it were periods presented and a U.S. company that is not a foreign private issuer and that is subject to report on the reporting requirements of Section 13 or 15(d) annual financial statements by the Issuer’s independent registered public accounting firm (all of the Exchange Act (foregoing financial information to be prepared on a “U.S. Filer”) as basis substantially consistent with the SEC may corresponding financial information included in the future prescribeOffering Memorandum), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the future prescribeOffering Memorandum); and
(iii) within the time period specified for filing current reports on Form 8-K by the SEC, a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) current reports that would be required to be filed with the SEC on Form 8-K if the Company Issuer were required to file such reports for any of the following events: (a) significant acquisitions or dispositions (other than the Transactions), (b) the bankruptcy of the Issuer or a U.S. FilerSignificant Subsidiary, (c) the acceleration of any Indebtedness of the Issuer or any Restricted Subsidiary having a principal amount in excess of $75.0 million, (d) a change in the Issuer’s certifying independent auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of Holdings, (f) resignation of a director on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions (other than the Transactions), (j) entry into material agreements and (k) entry into material direct financial obligations; providedprovided that no such current report will be required to be furnished if the Issuer or any direct or indirect parent of the Issuer determines in its good faith judgment that such event is not material to Holders or to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole, or if the Issuer or any direct or indirect parent of the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial statements included therein shall be prepared in accordance with GAAPposition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that if any quarterly report is filed on Form 6such non-K, the certifications required by Form 10-Q, but not Form 6-K, disclosure shall be made limited only to the Holders of the Notes those specific provisions that would cause material competitive harm and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after not the occurrence of an the event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Fileritself; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and and, upon request, Holders, the Holders of Issuer shall, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of the Issuer (or any direct or indirect parent of the Issuer) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer) or a third party, in each case case, within 15 days after the time the Company Issuer would be required to file provide such information pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (as determined in good faith by the Issuer or any direct or indirect parent of the Issuer) (it being understood that, without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the foregoing, and for the avoidance of doubt, (i) the Issuer shall not be required to furnish any information, certificates or reports required by (A) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC with respect to financial measures contained therein, (ii) the information and reports referred to in Section 3.2(a) will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information is required to be provided by the Issuer (including with respect to the Transactions), the Issuer may provide only pro forma revenues, net income, EBITDA, Adjusted EBITDA (as such term is defined in the Offering Memorandum), senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the information and reports referred to in Section 3.2(a) shall not be required to present compensation or beneficial ownership information, (v) the information and reports referred to in Section 3.2(a) shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K and (vi) trade secrets and other proprietary information may be excluded from any disclosures. If at any time the Issuer or any direct or indirect parent of the Issuer has made a good faith determination to file a registration statement with the SECSEC with respect to an Equity Offering of such entity’s Capital Stock, if it were subject the Issuer will still be required to provide reports pursuant to this Section 13 or 15(d) 3.2, but the content of such reports will not be required to disclose any information that, in the good faith view of the Exchange Act. Issuer or any direct or indirect parent of the Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such Equity Offering.
(c) For so long as the Issuer has designated certain of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by Section 3.2(a) will include a reasonably detailed presentation (which need not be audited or reviewed by the auditors), either on the face of the financial statements or in the notes thereto, or in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, 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.
(d) In addition, to the extent not satisfied by the foregoing, the Company will agree Issuer agrees that, for so long as any Notes are outstanding, it will the Issuer shall furnish to Holders and to securities analysts and prospective investorsHolders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Issuer, those of (i) any predecessor or successor of the Issuer or any entity meeting the requirements of clause (ii) or (iii) of this Section 3.2(e), (ii) any Wholly Owned Subsidiary of the Issuer that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Issuer and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent company of the Company becomes a guarantor Issuer; provided that, if the financial information so furnished relates to such Qualified Reporting Subsidiary of the NotesIssuer or such direct or indirect parent of the Issuer, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information information, which may be posted to the website of the Issuer (or any direct or indirect parent of the Issuer) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer) or a third party, that explains in reasonable detail the differences between the information relating to such parentQualified Reporting Subsidiary or such parent entity (as the case may be), on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited or reviewed by the auditors.
(cf) Notwithstanding The Issuer will be deemed to have satisfied the foregoinginformation and reporting requirements of Section 3.2(a) if (i) the Issuer or any Qualified Reporting Subsidiary of the Issuer or any direct or indirect parent of the Issuer has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC via XXXXX to the extent it is otherwise provided to Holders pursuant to this Section 3.2) with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and that are publicly available or (ii) with respect to the Holders only, the Issuer or such Qualified Reporting Subsidiary or such parent entity has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2.
(g) So long as Notes are outstanding, the Issuer shall also:
(i) promptly after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(i) and 3.2(a)(ii), hold a conference call to discuss such reports and the results of operations for the relevant reporting period; provided, however, that the Issuer will be deemed to have satisfied the requirements of this Section 4.03 shall be deemed satisfied clause (i) if any direct or indirect parent of the Issuer holds a conference call to discuss such reports and results of operations for the relevant reporting period; and
(ii) announce by press release or post to the website of the Issuer (or any direct or indirect parent of the Issuer) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer) or a third party, which may require a confidentiality acknowledgment (but not restrict the recipients of such information from trading securities of the Issuer or its Affiliates), prior to the commencement date of the Exchange Offer conference call required to be held in accordance with Section 3.2(g)(i), the time and date of such conference call and either all information necessary to access the call or informing Holders, bona fide prospective investors in the effectiveness Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of an investment in the Shelf Registration Statement byNotes) how they can obtain such information, including, without limitation, the applicable password or other login information.
(h) Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this Section 3.2 may be required to provide its email address, employer name and other information reasonably requested by the Issuer and represent to the Issuer (to the Issuer’s reasonable good faith satisfaction) that:
(1i) it is a Holder, a beneficial owner of the filing Notes, a bona fide prospective investor in the Notes, a bona fide market maker in the Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of investment in the Notes;
(ii) it will not use the information in violation of applicable securities laws or regulations;
(iii) it will keep such provided information confidential and will not communicate the information to any Person; and
(iv) it (a) will not use such information in any manner intended to compete with the SEC business of the Exchange Offer Registration Statement Issuer and its Subsidiaries and (b) is not a Person (which includes such Person’s Affiliates) that (i) is principally engaged in a Similar Business or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X (ii) derives a significant portion of the Securities Act, orits revenues from operating or owning a Similar Business.
(2i) posting on its website or providing Delivery of reports, information and documents (including, without limitation, reports contemplated under this Section 3.2) to the Trustee within 15 days 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 compliance by the time periods after Issuer with any of its covenants hereunder (as to which the Company would Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have been required to file annual and interim reports with no liability or responsibility for the SECfiling, the financial information (including a “Management’s Discussion and Analysis timeliness or content of Financial Condition and Results of Operations” section) that would be required to be included in any such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumreport or filing.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Holdings shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (other than compensation information), 5.03(b) and Item 9.01 (only to the extent relating to any of the foregoing) of Form 8-K if Holdings had been a reporting company under the Exchange Act; provided, however, that no such current reports (or Items thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be provided (or included) if Holdings determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of Holdings and its Restricted Subsidiaries, taken as a whole. In addition to providing such information to the Trustee, Holdings shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) or (iii), by posting such information to its website (or any successor formof Holdings’ parent companies) if or on IntraLinks or any comparable online data system or website. Notwithstanding the Company were a U.S. Filer; providedforegoing, (A) Holdings will not be required to furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial statements included therein shall measures contained therein, (B) such reports will not be prepared in accordance with GAAP; providedrequired to contain the separate financial information for Subsidiary Guarantors contemplated by Rule 3-09, furtherRule 3-10 or Rule 3-16 of Regulation S-X, that if or include any annual report is filed on Form 20-F, the exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in the Offering Memorandum and shall not be required to file with the SEC if it were a U.S. Filer; providedpresent compensation or beneficial ownership information.
(b) The financial statements, that such reports information and other documents required to be provided as described above, may be furnishedthose of (i) Holdings or (ii) any direct or indirect parent of Holdings (any such entity, rather than fileda “Reporting Entity”), so long as in the case of (ii) such direct or indirect parent of Holdings shall not conduct, transact or otherwise engage, or commit to the extent U.S. Filers are permitted to do so by the SEC; in each caseconduct, transact or otherwise engage, in a manner that complies in any business or operations other than its direct or indirect ownership of all material respects with of the requirements specified in such formEquity Interests in, and its management of Holdings; providedprovided that, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit financial information so furnished relates to such filingdirect or indirect parent of Holdings, in which event the Company same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to Holdings and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Holdings will make available such information available to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesHoldings shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3 2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, Holdings will be deemed to have delivered such reports and information referred to in this Section 4.02 to the Trustee and the holders if Holdings or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided to the Trustee and the holders on Holdings’ website (or that of any of Holdings’ parent companies). The Trustee shall have no obligation to monitor whether Holdings (or any of Holding’s parent companies) posts such reports, subject information and documents on its website or the SEC’s XXXXX service, or collect any such information from Holding’s (or any of Holding’s parent companies) website or the SEC’s XXXXX service. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the transactions contemplated hereunder.
(e) Holdings will also hold quarterly conference calls for all holders of the Notes and securities analysts to exceptions consistent with the presentation of discuss such financial information in no later than five Business Days after the Offering Memorandumdistribution of such information required by clauses (i) or (ii) of Section 4.02(a) and prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company shall file with the SEC (and make available will provide to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor comparable form) if the Company were Reporting Entity had been a U.S. Filer; providedreporting company under the Exchange Act, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made except to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided extent permitted to the Trustee and made available to Holders, in lieu of being filed with be excluded by the SEC;
(2ii) within 45 15 days after the end of each time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the first three Reporting Entity for such fiscal quarters of each fiscal year (or such shorter period quarter containing the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q (or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report Reporting Entity had been made on Form 10-Q and provided to a reporting company under the Trustee and made available to HoldersExchange Act, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, except to the extent U.S. Filers are permitted to do so be excluded by the SEC; and
(4iii) any other informationwithin 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, documents and other current reports of the Reporting Entity containing substantially all of the information that the Company would be required to file with be filed in a Current Report on Form 8-K under the SEC if it were a U.S. Filer; providedExchange Act on the Issue Date pursuant to Sections 1, that such reports may be furnished2 and 4, rather than filedItems 5.01, 5.02(a), (b) and (c), 5.03(b) and Item 9.01 (only to the extent U.S. Filers are permitted relating to do so by any of the SEC; in each case, in foregoing) of Form 8-K if the Reporting Entity had been a manner that complies in all material respects with reporting company under the requirements specified in such formExchange Act; provided, however, that no such current reports will be required to be furnished if the Company shall determines in its good faith judgment that such event is not be so obligated material to file such reports with holders or the SEC if the SEC does not permit such filingbusiness, in which event assets, operations, financial position or prospects of the Company will make available such information to prospective purchasers of Notesand its Restricted Subsidiaries, in taken as a whole. In addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoingTrustee, the Company will agree thatshall make available to the holders, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be delivered provided pursuant to Rule 144A(d)(4the foregoing clauses (i), (ii) under and (iii), by posting such information to its website (or the Securities Actwebsite of any of the Company’s parent companies, including the Reporting Entity) or on IntraLinks or any comparable online data system or website. If at any time the Company or any direct or indirect parent of the Company has made a good faith determination to file a registration statement with the SEC with respect to an initial public offering of such entity’s Capital Stock, the Company will not be required to disclose any information or take any actions that, in the good faith view of the Company, would violate the securities laws or the SEC’s “gun jumping” rules.
(b) In Notwithstanding the event foregoing, (i) neither the Company nor another Reporting Entity will be required to furnish any information, certificates or reports that would otherwise be required by (A) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S-K, or (B) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (ii) such reports will not be required to contain financial information required by Rule 3.09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K or Form 10-Q (or any successor forms) or related rules under Regulation S-K, and (iii) such reports shall be subject to exceptions, exclusions and other differences consistent with the presentation of financial and other information in the Offering Memorandum and shall not be required to present compensation or beneficial ownership information.
(c) The financial statements, information and other documents required to be provided as described in this Section 4.02, may be those of (i) the Company or (ii) any direct or indirect parent company of the Company becomes (any such entity, a guarantor “Reporting Entity”), so long as in the case of clause (ii) such direct or indirect parent of the NotesCompany shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any material business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of, the Company may satisfy its obligations under this Section 4.03 with respect to Company; provided that, if the financial information relating to the Company by furnishing financial information relating so furnished relates to such parent; provideddirect or indirect parent of the Company, however that the same is accompanied by consolidating information that explains in reasonable detail a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. In addition, the Company will make such information available to prospective investors upon request.
(cd) In addition, the Company shall, for so long as any Notes remain outstanding during any period when neither it nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the holders of the Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) Notwithstanding the foregoing, the Company will be deemed to have furnished the reports and information referred to in this Section 4.02 to the Trustee, the holders, prospective investors, market makers and securities analysts if the Company or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity).
(f) Delivery of such reports, subject information and documents to exceptions consistent the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants under this Indenture (as to which the presentation of financial information in the Offering MemorandumTrustee is entitled to rely conclusively on Officers’ Certificates).
Appears in 1 contract
Samples: Indenture
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company Issuer shall file with the SEC (unless the SEC will not accept such a filing), and make available to provide the Trustee and Holders of the Notes (without exhibits)with copies thereof, without cost to any each Holder, within 15 days after the Company it files (or attempts to file) them with the SEC) from and after the Issue Date,
(1i) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of time periods specified by the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)Act, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor comparable form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained therein (or required in such successor or comparable form);
(ii) within the time periods specified by the Exchange Act, a quarterly report on Form 10-Q (or any successor or comparable form), it being expressly understood that the first of such quarterly reports to be furnished to the Holders shall be a report for the quarter ended September 30, 2005, which shall be required to be furnished on or prior to the 75th day following September 30, 2005; and
(iii) all current reports that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall to be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified SEC on Form 8-K after K. In addition, the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information available to prospective purchasers investors upon request. Delivery of Notessuch reports, in addition to providing such information and documents to the Trustee is for informational purposes only and the Holders Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Notes, in each case within 15 days after Issuer’s compliance with any of its covenants hereunder (as to which the time Trustee is entitled to rely exclusively (subject to Article 7 hereof) on Officers’ Certificates).
(b) For so long as the Company would be required to file such information with Notes remain outstanding during any period when the SEC, if it were Issuer is not subject to Section 13 or 15(d) of the Exchange Act. In addition, the Issuer shall furnish to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the Issuer shall be deemed to have furnished such reports referred to above to the Trustee and the Holders if it has filed such reports with the SEC via the XXXXX filing system and such reports are publicly available. In addition, such requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer exchange offer contemplated by the Registration Rights Agreement relating to the Notes or the effectiveness of the Shelf Registration Statement by:
(1) by the filing with the SEC of the Exchange Offer Registration Statement or and/or Shelf Registration StatementStatement in accordance with the provisions of the Registration Rights Agreement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, orAct and such registration statement and/or amendments thereto are filed at times that otherwise satisfy the time requirements set forth in Section 4.02(a).
(2d) posting on its website or providing to the Trustee within 15 days If at any time any Parent of the time periods after Issuer becomes a Guarantor (there being no obligation of any Parent to do so), holds no material assets other than cash, Cash Equivalents and the Company would have been Capital Stock of the Issuer or of any direct or indirect parent corporation of the Issuer (and performs the related incidental activities associated with such ownership) and complies with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision), the reports, information and other documents required to file annual be filed and interim reports with furnished to Holders pursuant to this Section 4.02 may, at the SECoption of the Issuer, be filed by and be those of such Parent rather than the Issuer.
(e) Notwithstanding the foregoing, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would Issuer shall not be required to be included in such reportsfurnish any information, subject certifications or reports required by Items 307 and 308 of Regulation S-K prior to exceptions consistent with the presentation effectiveness of financial information in the Offering MemorandumExchange Offer Registration Statement or Shelf Registration Statement, as applicable.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall file with the SEC (and make available provide to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following reports:
(1) within 90 days after the end of each fiscal year (or such shorter period beginning with the fiscal year ending December 31, 2023), an annual report containing substantially all the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially under the same information (including applicable certifications) that Exchange Act if the Company would had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter beginning with the fiscal quarter in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q (or any successor form) that would be required under the Exchange Act if the Company were had been a U.S. Filer; providedreporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), that the including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements included therein shall be prepared in accordance with GAAP; provided, further, provided that if any such quarterly report is filed on Form 6-K, shall not be required to contain the certifications information required by Form 10-QPart I, but not Form 6-K, shall be made to the Holders Item 4 of the Notes and the Trustee as if such report had been made on Form 10-Q (controls and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;procedures); and
(3) within ten Business Days after the time periods specified occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 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) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K after under the occurrence of an event required to be therein reportedExchange Act if the Company had been a reporting company under the Exchange Act, such other current reports on the appropriate form for reporting current events containing substantially all the same information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K (or any successor form) that would be required under the Exchange Act if the Company were had been a U.S. Filerreporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth a calculation of Adjusted EBITDA; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that that, so long as the Company shall is not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information subject to the Trustee and the Holders reporting requirements of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. , such reports (a) shall not be required to comply with Section 302 or 404 of the Xxxxxxxx-Xxxxx Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain the disclosure contemplated by Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC or a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC, (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Third Lien Exchangeable Notes are outstanding, it will the Company shall furnish to Holders and to securities analysts and prospective investorspurchasers of the Third Lien Exchangeable Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Third Lien Exchangeable Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(bc) In the event that any direct or indirect parent company of the The Company becomes a guarantor of the Notes, the Company may will be permitted to satisfy its obligations under this Section 4.03 covenant with respect to financial information relating to the Company (including, for the avoidance of doubt, the obligation to provide a calculation of Adjusted EBITDA) by furnishing financial information relating to such parentany Parent Entity; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentParent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cd) Notwithstanding anything to the foregoingcontrary set forth above, if the Company or any Parent Entity has furnished the Holders of Third Lien Exchangeable Notes or filed with the SEC the reports described in the preceding paragraphs with respect to the Company or any Parent Entity, the requirements of this Section 4.03 Company shall be deemed satisfied to be in compliance with the provisions of this covenant.
(e) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company or any Parent Entity shall also hold live quarterly conference calls with the opportunity to ask questions of the Company or such Parent Entity, as applicable (it being understood that such quarterly conference call may be the same conference call as that held for Company’s or, as applicable, any Parent Entity’s equity investors, debt investors or analysts). Prior to the commencement date such conference call is to be held, the Company, or, as applicable, the applicable Parent Entity shall issue a press release to the appropriate U.S. wire services or otherwise announce such quarterly conference call for the benefit of the Exchange Offer or the effectiveness Holders, beneficial owners of the Shelf Registration Statement by:
(1) the filing with the SEC Third Lien Exchangeable Notes, bona fide prospective purchasers of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X Third Lien Exchangeable Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), orsecurities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and include information on how to access such quarterly conference call.
(2f) posting If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.00% of consolidated total revenue of the Company and its website or providing to Restricted Subsidiaries for the Trustee period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, of selected financial metrics (which metrics will be selected by the Company in its sole discretion) of such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations” section.
(g) To the extent any information is not provided within 15 days of the time periods after specified in this Section 4.06 and such information is subsequently provided, the Company would will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been required cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to file annual make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and interim reports with the SEC, the financial information (including a “ManagementTrustee’s Discussion and Analysis receipt of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject information and documents shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to exceptions consistent which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the presentation provisions of financial this Third Lien Exchangeable Notes Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in the Offering Memorandumor monitor any conference calls.
Appears in 1 contract
Samples: Third Lien Exchangeable Senior Secured Pik Notes Indenture (WeWork Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report reports on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall (a) file with the SEC (unless the SEC will not accept such filing), and make available (b) deliver to the Trustee and and, upon written request, the registered Holders of the Notes (without exhibits)Notes, without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,:
(1) within 90 days after the end of each fiscal year time periods specified by the Exchange Act (including all applicable extension periods), an annual report on Form 10-K (or any successor or comparable form) containing the information required to be contained therein in all material respects (or required in such shorter period successor or comparable form);
(2) within the time periods specified by the Exchange Act (including all applicable extension periods), a quarterly report on Form 10-Q (or any successor or comparable form); and
(3) all current reports that would be applicable required to be filed with the SEC on Form 8-K (or any successor or comparable form).
(b) In the event that the Company is not permitted to file such reports with the SEC pursuant to the Exchange Act, the Company shall nevertheless deliver to the Trustee and make available such Exchange Act reports to the Holders of the Notes as if it the Company were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified by the Exchange Act (including all applicable extension periods), which requirement may be satisfied by posting such information on Form 8-K after the occurrence of an event required to be therein reportedits website, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (Intralinks or any successor form) that would be required if the Company were comparable password-protected online data system which will require a U.S. Filer; provided, that such reports may be furnished, rather than filed, confidentiality acknowledgment (with a copy to the extent U.S. Filers are permitted Trustee). The Company will hold quarterly conference calls (for the avoidance of doubt, the Company’s quarterly earnings call shall satisfy such requirement) for the Holders and securities analysts to do so by discuss such financial information for the SEC; andprevious reporting period no later than ten Business Days after distribution of such financial information.
(4c) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree thatshall, for so long as any Notes are outstanding, it will furnish make available to the Holders and to securities analysts 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 the Notes are not freely transferable under the Securities Act.
(bd) In Delivery of such reports and information to the event that Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no duty to review or analyze such reports, information or documents. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reports, information or documents, and the Trustee shall have no duty to participate in or monitor any conference calls.
(e) The Company will be deemed to have satisfied the information and reporting requirements of this Section 4.03 if the Company (or any direct or indirect parent company of the Company becomes a guarantor of Company) has filed reports or registration statements containing such information with the NotesSEC via the SEC’s Electronic Data Gathering, Analysis and Retrieval system (or any successor system) within the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to time periods specified above and such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handreports are publicly available.
(cf) Notwithstanding the foregoing, the requirements of such reports and other information required to be provided pursuant to this Section 4.03 shall be deemed satisfied prior to the commencement may be, rather than those of the Exchange Offer Company, those of any direct or the effectiveness indirect parent of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCompany.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Issuers shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Reporting Entity containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (a),(b) and (c) and Item 9.01(a) and (b) (only to the extent relating to any of the foregoing) of Form 8-K if the Reporting Entity had been a reporting company under the Exchange Act; provided, however, that no such current reports (or any successor formitems thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be delivered (or included) if the Company were determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Company and its Restricted Subsidiaries, taken as a U.S. Filer; provided, that whole. In addition to providing such information to the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FTrustee, the Issuers shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) and (iii), by posting such information to its website (or the website of any of the Company’s parent companies, including the Reporting Entity) or on IntraLinks or any comparable online data system or website. If at any time the Company or any direct or indirect parent of the Company has made a good faith determination to file a registration statement with the SEC with respect to an initial public offering of such entity’s Capital Stock, the Issuers will not be required to disclose any information or take any actions that, in the good faith view of the Company, would violate the securities laws or the SEC’s “gun jumping” rules. Notwithstanding the foregoing, (A) neither the Company nor another Reporting Entity will be required to deliver any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in the Offering Memorandum and shall not be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 present compensation or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Actbeneficial ownership information.
(b) In The financial statements, information and other documents required to be provided as described in this Section 4.02 may be those of (i) the event that Company or (ii) any direct or indirect parent company of the Company becomes (any such entity, a guarantor “Reporting Entity”), so long as in the case of clause (ii) such direct or indirect parent of the NotesCompany shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any material business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of, the Company may satisfy its obligations under this Section 4.03 with respect to Company; provided that, if the financial information relating to the Company by furnishing financial information relating so delivered relates to such parent; provideddirect or indirect parent of the Company, however that the same is accompanied by consolidating information that explains in reasonable detail a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) In addition, the Issuers will make such information available to prospective investors upon request. The Issuers have agreed that, for so long as any Notes remain outstanding during any period when neither it nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, they will furnish to the holders of the Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Notwithstanding the foregoing, the Issuers will be deemed to have delivered such reports and information referred to in this Section 4.02 to the holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Company or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior and the Issuers will be deemed to have delivered such reports and information referred to this Section 4.02 to the commencement Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the Exchange Offer or the effectiveness posting of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, reports and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity). The Trustee shall have no obligation to monitor whether the Issuers post such reports, subject to exceptions consistent information and documents on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity) or the SEC’s XXXXX service, or collect any such information from the Company’s (or any of the Company’s parent companies) website or the SEC’s XXXXX service.
(e) The Company will also hold quarterly conference calls, beginning with the presentation first full fiscal quarter ending after the Issue Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to discuss such financial information in no later than ten Business Days after the Offering Memorandumdistribution of such information required by clauses (i) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely conclusively on the Officer’s Certificates). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provision of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein.
Appears in 1 contract
Samples: Indenture (Exela Technologies, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
furnish: (1) within 90 days after of the end of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as permitted by the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were then subject to SEC reporting requirements as a U.S. Filer; providednon-accelerated filer, that including under Rule 12b-25 under the Securities Exchange Act of 1934), annual audited financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes for such fiscal year and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after of the end of each of the first three fiscal quarters of each every fiscal year (or such shorter longer period that would as may be applicable permitted by the SEC if the Company were then subject to SEC reporting requirements as a non-accelerated filer, including under Rule 12b-25 under the Securities Exchange Act of 1934), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter; in each case, including “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosures with respect to the Company if it were a U.S. Filer as periods presented and, with respect to the SEC may in the future prescribe)annual information only, a report containing substantially on the same annual financial statements by the Company’s Independent Registered Public Accounting Firm (all of the foregoing financial information (including applicable certifications) required to be contained prepared (i) on a basis substantially consistent with and subject to exceptions substantially consistent with, the corresponding financial information included in Form 10-Q the Offering Circular or (or any successor formii) on a basis substantially consistent with the then applicable SEC requirements); and information substantially similar to the information that would be required if the Company were to be included in a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly current report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after filed with the occurrence of an event required to be therein reported, such other reports on SEC by the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K Company (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to prepare and file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form) pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (other than compensation information) and 5.03(b) of such form, within 15 days after the date of filing that would have been required for a current report on Form 8-K; provided, however, that no report shall be required to include (1) any exhibits or (2) a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Subsidiaries); provided, however, that (1) in no event shall such reports be required to contain separate financial statements for Guarantors or Subsidiaries the shares of which are pledged to secure the Notes or any Guarantee that would be required under (a) Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries, (b) Section 3-10 of Regulation S-X or (c) Section 3-16 of Regulation S-X, (2) in no event shall such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained therein, (3) in no event shall the Company be required to furnish any information consisting of trade secrets and other proprietary information and (4) no information required to be furnished pursuant to this Section 4.03(a) will be required to include any segment reporting.
(b) The Company will (1) distribute such reports and information electronically to the Trustee (such delivery obligation satisfied by the filing of reports with the SEC) and (2) make available such reports and information to any Holder, any bona fide prospective purchaser of the Notes (a “Prospective Purchaser”), any bona fide security analyst or any bona fide market maker by posting such reports and information on Intralinks or any comparable password protected online data system or on a public website; provided that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would only be required to file make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker; provided, further that such Holders, Prospective Purchasers, security analysts and market makers shall agree to (i) treat all such reports (and the information with contained therein) and information as confidential, (ii) not use such reports and the SEC, if it were subject to Section 13 information contained therein for any purpose other than their investment or 15(dpotential investment in the Notes and (iii) of not publicly disclose any such reports (and the Exchange Act. information contained therein) and information.
(c) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will shall furnish to Holders and to securities analysts and prospective investors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bd) In Notwithstanding the event that any direct or indirect parent company foregoing, the financial statements, information and other documents required to be provided as described above, may be those of the Company becomes a guarantor or any Parent Entity rather than those of the Notes, Company; provided that to the extent the Parent Entity has material assets or operations other than through the Company may satisfy and its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; providedRestricted Subsidiaries, however that the same is accompanied by consolidating information information, that explains in reasonable detail the differences between the information relating to such parentParent Entity, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(ce) Notwithstanding the foregoingThe Trustee shall have no duty to review or analyze reports delivered to it. Delivery of such reports, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, information and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing documents to the Trustee within 15 days is for informational purposes only and the information and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein, or determinable from information contained therein, including the time periods after Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(f) The Company will be deemed to have furnished the reports referred to in Section 4.03(a) if the Company would have been required to file annual and interim or any Parent Entity has filed reports containing such information with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Issuer shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Reporting Entity containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(a), (b) and (c) of Form 8-K if the Reporting Entity had been a reporting company under the Exchange Act; provided, however, that no such current reports (or any successor formItems thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be delivered (or included) if the Company were Issuer determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a U.S. Filer; provided, that whole. In addition to providing such information to the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-FTrustee, the Issuer shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) and (iii), by posting such information to its website (or the website of any of the Issuer’s parent companies, including the Reporting Entity) or on IntraLinks or any comparable online data system or website. If at any time the Issuer or any direct or indirect parent of the Issuer has made a good faith determination to file a registration statement with the SEC with respect to an initial public offering of such entity’s Capital Stock, the Issuer will not be required to disclose any information or take any actions that, in the good faith view of the Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such initial public offering. Notwithstanding the foregoing, (A) neither the Issuer nor another Reporting Entity will be required to deliver any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in the Offering Memorandum and shall not be required to file with the SEC if it were a U.S. Filer; providedpresent compensation or beneficial ownership information.
(b) The financial statements, that such reports information and other documents required to be provided as described in this Section 4.02 may be furnishedthose of (i) the Issuer or (ii) any direct or indirect parent of the Issuer (any such entity described in clause (i) or (ii), rather a “Reporting Entity”), so long as in the case of clause (ii) either (1) such direct or indirect parent of the Issuer shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than filedits direct or indirect ownership of all of the Equity Interests in, and its management of, the Issuer or (2) if otherwise, the financial information so delivered shall be accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the extent U.S. Filers are permitted to do so by Issuer and its Restricted Subsidiaries on a standalone basis, on the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company other hand.
(c) The Issuer will make available such information available to prospective purchasers of Notesinvestors upon request. The Issuer shall, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, the Issuer will be deemed to have delivered such reports and information referred to in this Section 4.02 to the holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Issuer or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior and the Issuer will be deemed to have delivered such reports and information referred to this Section 4.02 to the commencement Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the Exchange Offer or the effectiveness posting of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, reports and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Issuer’s website (or that of any of the Issuer’s parent companies, including the Reporting Entity).
(e) The Issuer will also hold quarterly conference calls, beginning with the first full fiscal quarter ending after the Issue Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (i) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, subject information and documents to exceptions consistent the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof 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 under this Indenture (as to which the Trustee is entitled to rely conclusively on the Officer’s Certificates). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the presentation provision of financial this Indenture or to ascertain the correctness or otherwise of the information in or the Offering Memorandumstatements contained therein.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company Issuers shall file with the SEC (and make available provide to the Trustee and Holders and, upon request, to beneficial owners a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC) from ’s rules and after regulations for non-accelerated filers, annual reports of the Issue Date,
(1) within 90 days after the end of each Reporting Entity for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor comparable form) if the Company were Reporting Entity had been a U.S. Filer; providedreporting company under the Exchange Act, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made except to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided extent permitted to the Trustee and made available to Holders, in lieu of being filed with be excluded by the SEC;
(2ii) within 45 15 days after the end of each time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the first three Reporting Entity for such fiscal quarters of each fiscal year (or such shorter period quarter containing the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q (or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report Reporting Entity had been made on Form 10-Q and provided to a reporting company under the Trustee and made available to HoldersExchange Act, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, except to the extent U.S. Filers are permitted to do so be excluded by the SEC; and
(4iii) any other informationwithin 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, documents and other current reports of the Reporting Entity containing substantially all of the information that the Company would be required to file with be filed in a Current Report on Form 8-K under the SEC if it were a U.S. Filer; providedExchange Act on the Issue Date pursuant to Sections 1, that such reports may be furnished2 and 4, rather Items 5.01, 5.02 (a)-(d) (other than filedcompensation information), 5.03(b) and Item 9.01 (only to the extent U.S. Filers are permitted relating to do so by any of the SEC; in each case, in foregoing) of Form 8-K if the Reporting Entity had been a manner that complies in all material respects with reporting company under the requirements specified in such formExchange Act; provided, however, that no such current reports will be required to be furnished if the Issuers determine in their good faith judgment that such event is not material to holders or the business, assets, operations, financial position or prospects of the Issuers and their Restricted Subsidiaries, taken as a whole. If at any time the Company or any direct or indirect parent of the Company has made a good faith determination to file a registration statement with the SEC with respect to an initial public offering of such Person’s Capital Stock, the Issuers will not be required to disclose any information or take any actions that, in the good faith view of the Issuers, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such initial public offering. If the Issuers have designated any of their Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuers, then the annual and quarterly information required by clauses (a)(i) and (a)(ii) of this Section 4.02 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 Issuers and their Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(b) Notwithstanding the foregoing, (a) none of the Issuers nor any Reporting Entity will be required to furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (b) such reports will not be required to contain financial information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K or Form 10-Q (or any such successor or comparable forms) or related rules under Regulation S-K, and (c) such reports shall be subject to exceptions, exclusions and other differences consistent with the presentation of financial and other information in the Offering Memorandum and shall not be required to present compensation or beneficial ownership information.
(c) The financial statements, information and other documents required to be provided as described above, may be those of (i) the Company or (ii) any direct or indirect parent of the Company (any such entity described in clause (i) or (ii), a “Reporting Entity”), so obligated to file long as in the case of (ii) such reports with the SEC if the SEC does not permit such filing, in which event direct or indirect parent of the Company will make available such information not conduct, transact or otherwise engage, or commit to prospective purchasers of Notesconduct, transact or otherwise engage, in any business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of the Company; provided that, if the financial information so furnished relates to such direct or indirect parent of the Company, the same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the Issuers and their Restricted Subsidiaries on a standalone basis, on the other hand.
(d) In addition to providing such information to the Trustee and Trustee, the Holders Issuers will make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the NotesNotes and securities analysts the information required to be provided pursuant to clauses (a)(i), in each case within 15 days after (a)(ii) or (a)(iii) of this Section 4.02, by posting such information to the time website of the Company would be required to file such information with (or the SECwebsite of any direct or indirect parent of the Company) or on IntraLinks or any comparable online data system or website.
(e) The Issuers shall, if it were for so long as any Notes remain outstanding during any period when they are not or any Reporting Entity is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In . The Issuers shall also hold quarterly conference calls, beginning with the event that any direct or indirect parent company of first full fiscal quarter ending after the Company becomes a guarantor Issue Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Company may satisfy its obligations under Notes and securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (a)(i) or (a)(ii) of this Section 4.03 with respect to financial information relating 4.02, and prior to the Company by furnishing financial date of each such conference call, the Issuers will announce the time and date of such conference call and either include all information relating necessary to access the call in such parent; providedannouncement or inform holders of Notes, however that prospective investors, market makers affiliated with any initial purchaser of the same is accompanied by consolidating Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or other login information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand(if applicable).
(cf) Notwithstanding the foregoing, the Issuers will be deemed to have furnished such reports referred to in this Section 4.02 to the Trustee and the holders if an Issuer or a Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided to the holders on the Company’s website (or the website of any direct or indirect parent of the Company). The Trustee shall have no responsibility to monitor whether any such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumfiling or posting has occurred.
Appears in 1 contract
Samples: Indenture (ADT Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall file with the SEC (and make available provide to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following reports:
(1) within 90 days after the end of each fiscal year (or such shorter period beginning with the fiscal year ending December 31, 2023), an annual report containing substantially all the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially under the same information (including applicable certifications) that Exchange Act if the Company would had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter beginning with the fiscal quarter in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (or any successor formcontrols and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be required reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 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) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company were had been a U.S. Filerreporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; providedprovided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the financial statements included therein shall be prepared in accordance with GAAPOffering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, that if any quarterly report however, that, so long as the Company is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made subject to the Holders reporting requirements of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. , such reports (a) shall not be required to comply with Section 302 or 404 of the Xxxxxxxx-Xxxxx Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain the disclosure contemplated by Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC or a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will the Company shall furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(bc) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, 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.
(f) In the event that any direct or indirect parent company of the Company becomes a guarantor Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect 4.06 to provide consolidated financial information relating to of the Company by furnishing consolidated financial information relating to such parent; provided, however provided that the same is (1) such financial statements are accompanied by consolidating financial information that explains in reasonable detail the differences between the information relating to for such parent, on the one handCompany, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements Trustee’s receipt of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to exceptions consistent which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the presentation provisions of financial this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in the Offering Memorandumor monitor any conference calls.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that The Borrower shall provide the Company may not be subject Administrative Agent, who will deliver to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits)Lenders, without cost to any Holdereach Lender, the following reports within 15 days after the Company files them with the SEC) from and after the Issue Date,specified time frames:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would be applicable to permitted by the Company SEC if it the Borrower were a U.S. company that is not a foreign private issuer and that is then subject to the such SEC reporting requirements of Section 13 as a required filer, voluntary filer or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribeotherwise), an annual report (which, if permitted under applicable rules of the SEC, may be the annual report of Intelsat, Ltd. or another Parent of the Borrower) on Form 10-K (or any successor form) or Form 20-F (or any successor formor comparable forms) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K be contained therein (or any required in such successor or comparable form) if the Company were a U.S. Filer); provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may in if the future prescribeBorrower were then subject to such SEC reporting requirements as a required filer, voluntary filer or otherwise), a quarterly report (which, if permitted under applicable rules of the SEC, may be the quarterly report of Intelsat, Ltd. or another Parent of the Borrower) containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) financial statements and a management’s discussion and analysis of financial condition and results of operations consistent with that which would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly an SEC report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8or 6-K (or any successor formor comparable forms).
(b) that would The Borrower shall make the information required by Section 9.1(a) available to prospective lenders upon request
(c) Notwithstanding the foregoing Sections 9.1(a) and (b), the Borrower will be deemed to have furnished the reports required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, by Sections 9.1(a) and (b) to the extent U.S. Filers are permitted to do so by Administrative Agent and the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC Lenders if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to or PanAmSat Holdco or another Parent of the extent U.S. Filers are permitted to do so by the SEC; in each caseBorrower has filed (or, in the case of a manner that complies in all material respects with the requirements specified in such form; providedForm 8-K, however, that the Company shall not be so obligated to file furnished) such reports with the SEC if via the SEC does not permit XXXXX filing system and such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes reports are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Actpublicly available.
(bd) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company The Borrower may satisfy its obligations under this Section 4.03 9.1 with respect to financial information relating to the Company Borrower by furnishing financial information relating to such parentany Parent; providedprovided that, however that if required by Regulation S-X under the Securities Act, the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentany Parent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company Borrower, any Subsidiary Guarantors, if any, and its Restricted the other Subsidiaries of the Borrower on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding In the foregoingevent that the Borrower changes its fiscal year end from the fiscal year end used by the Borrower as of the Closing Date, the requirements Borrower shall promptly give notice of this Section 4.03 shall be deemed satisfied prior such change to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumAdministrative Agent.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may Whether or not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated required by the SECCommission, the Company shall file so long as any Securities are outstanding, if not filed electronically with the SEC Commission through the Commission’s Electronic Data Gathering, Analysis, and Retrieval System (and make available or any successor system), CDW will furnish to the Trustee and Holders of the Notes (without exhibits)Holders, without cost to any Holderthe Trustee, within 15 days after the Company files them with time periods specified in the SEC) from Commission’s rules and after the Issue Date,regulations for a filer that is a “non-accelerated filer”:
(1) within 90 days after substantially the end of each fiscal year (or such shorter period same quarterly and annual financial information that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if a filing with the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed Commission on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form Forms 10-Q and provided to the Trustee and made available to Holders10-K, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company CDW were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SECforms, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sectionand, with respect to the annual information only, a report on the annual financial statements by CDW’s certified independent accountants; and
(2) substantially the same current reports that would be required to be included filed with the Commission on Form 8-K if CDW were required to file such reports. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, CDW 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; provided, that such cure shall not otherwise affect the rights of the Holders pursuant to Article VI if holders of at least 25% in principal amount of the then total outstanding Securities have declared the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Securities to be due and payable immediately and such declaration shall not have been rescinded or cancelled prior to such cure. In addition, if at any time any direct or indirect parent company (other than Parent) becomes a Guarantor (there being no obligation of any such parent company to do so), holds no material assets other than cash, Cash Equivalents and the Capital Stock of CDW or any other direct or indirect parent of CDW (and performs the related incidental activities associated with such ownership) and complies with the requirements of Rule 3-10 of Regulation S-X promulgated by the Commission (or any successor provision), the reports, information and other documents required to be filed and furnished to Holders of the Securities pursuant to this Section 4.03 may, at the option of CDW, be filed by and be those of such parent company rather than CDW; provided that the same are accompanied by consolidating information as required by Rule 3-10 of Regulation S-X (or any successor provision) that explains in reasonable detail the differences between the information relating to Parent and such other parent, on the one hand, and the information relating to CDW and its Subsidiaries on a standalone basis, on the other hand. The Trustee’s receipt of such reports, subject information and documents shall not constitute constructive notice of any information contained therein, including CDW’s compliance with any of the covenants under this Indenture. The Trustee is under no duty to exceptions consistent examine such reports, information or documents to ensure compliance with the presentation provisions of financial this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee is entitled to assume such compliance and correctness unless and to the extent a Responsible Officer of the Trustee is informed otherwise in an Officers’ Certificate delivered to it pursuant to the Offering Memorandumterms of this Indenture.
Appears in 1 contract
Samples: Indenture (CDW Technologies, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall either file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits)SEC, without cost to any each Holder, within 15 days after the Company files them following information or comply with the SECSection 12(b) from and after the Issue Date,with respect thereto:
(1i) within 90 days after the end of each fiscal year (or such shorter period year, annual financial information that would be applicable required to the Company if it were be contained in a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as filing with the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were required to file such a U.S. Filer; providedform, that including (i) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (ii) a report on the annual financial statements included therein shall be prepared in accordance with GAAPby the Company’s certified independent accountants; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period commencing with the first fiscal quarter after the Initial Issuance Date, all quarterly information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if a filing with the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made SEC on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were such a U.S. Filerform, including “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will shall make available such information to securities analysts and prospective purchasers of Notesinvestors upon request, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Holders. The Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will shall also furnish to Holders and to Holders, securities analysts and prospective investors, investors upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Company’s delivery obligations described in Section 4.03 12(a) shall be deemed to be satisfied prior to the commencement by posting of the Exchange Offer information and reports referred to in clauses (i) and (ii) of Section 12(a) above on the Company’s website or one maintained on its behalf for such purpose; provided, that the effectiveness Company shall use reasonable efforts to inform Holders of the Shelf Registration Statement by:
(1) the filing with the SEC availability of the Exchange Offer Registration Statement or Shelf Registration Statement, such information and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumwhich may be satisfied by, among other things, a press release on any national business press release wire.
Appears in 1 contract
Samples: Purchase Agreement (GeoEye, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject The Borrower shall provide to the reporting requirements Lenders, as soon as the same are available, and in any event within 45 days after the close of Section 13 or 15(d) each of the Exchange Act or otherwise report first three quarters of each fiscal year of the Borrower, a combined balance sheet of the Borrower and the Management Company and any Subsidiaries of the Borrower as of the end of such quarter, together with combined statements of income, changes in cash and shareholders' equity for the Borrower and the Management Company and such Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter. All such statements shall be prepared on an annual and quarterly a consistent basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by with the prior year's statements, in accordance with GAAP (except as may be expressly disclosed therein) in the form included in the Borrower's Form 10-Q as filed with the SEC, shall be certified by the Borrower's chief financial officer, principal accounting officer or chief executive officer, and shall be accompanied by a certificate of such officer stating that as of the date of such certificate and to the best of his knowledge, after reasonable inquiry: (i) such financial statements present fairly, in all material respects, the combined financial position of the Borrower and the Management Company shall file and the results of their combined operations for such quarter and for the Borrower's fiscal year-to-date in accordance with GAAP, subject to routine year-end audit adjustments; and (ii) no event has occurred which constitutes an Event of Default or would constitute an Event of Default with the SEC (giving of notice or the lapse of time or both, or, if an Event of Default or such an event has occurred and make available is continuing, a statement as to the Trustee nature thereof and Holders the action which the Borrower has taken or proposes to take with respect thereto. Concurrently with the delivery of the Notes foregoing materials, the Borrower shall furnish, in such detail as is reasonably required by the Administrative Agent (without exhibits)x) a Compliance Certificate, without cost to any Holder, within 15 days after documenting the Company files them Borrower's compliance with the SECrequirements of sections 7.16 and section 8 of this Agreement, (y) from a borrowing report, certified by a duly authorized officer of the Borrower, and after (z) such other information as may reasonably be requested by the Issue Date,Administrative Agent with respect to the Borrower or the Borrower's business or Property.
(1b) The Borrower shall provide to the Lenders, as soon as the same are available and in any event within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Borrower, a copy of the combined annual financial statements of the Borrower and the Management Company and any Subsidiaries of the Borrower for such year, including therein a copy of the combined balance sheet of the Borrower and the Management Company and any such Subsidiaries as of the end of such fiscal year and combined statements of income and changes in cash and statements of shareholders' equity. All of the foregoing shall be prepared on a consistent basis with the prior year's statements, in accordance with GAAP (a “U.S. Filer”except as may be expressly disclosed therein) as the SEC may in the future prescribe), an annual report on form included in the Borrower's Form 10-K as filed with the SEC. The foregoing statements shall be certified without qualification by Borrower's Accountants, and shall be accompanied by a certificate of the chief financial officer, principal accounting officer or chief executive officer of the Borrower stating that, as of the date of such certificate, to the best of his knowledge, after reasonable inquiry: (or any successor formi) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the such financial statements included therein shall be prepared reflect all adjustments (consisting of normal, recurring accruals) necessary to present fairly the combined financial position of the Borrower and the Management Company for such fiscal year in accordance with GAAP; provided, furtherand (ii) no event has occurred which constitutes an Event of Default or would constitute an Event of Default with the giving of notice or the lapse of time or both, that or, if any annual report an Event of Default or such an event has occurred and is filed on Form 20-Fcontinuing, a statement as to the nature thereof and the action which the Borrower has taken or proposes to take with respect thereto. Concurrently with the delivery of the foregoing materials, the certifications Borrower shall furnish, in such detail as is reasonably required by Form 10-Kthe Administrative Agent (x) a Compliance Certificate, but not Form 20-F(y) a borrowing report, shall certified by a duly authorized officer of the Borrower, and (z) such other information as may be made reasonably requested by the Administrative Agent with respect to the Holders of Borrower or the Notes and the Trustee as if such report had been made on Form 10-K and provided Borrower's business or Property.
(c) The Borrower shall provide to the Trustee Lenders, promptly after sending or filing thereof, copies of all reports which the Borrower sends to holders of beneficial interests in the Borrower, and made available to Holders, in lieu copies of being filed all reports and registration statements which the Borrower files with the SEC;.
(2d) The Borrower shall provide to the Lenders, concurrently with its delivery to the Lenders of the Borrower's quarterly financial reports in accordance with section 7.1(a), above, and in any event within 45 days after the end of each calendar quarter of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe)Borrower, a report containing substantially as to each Mortgaged Property setting forth for such Mortgaged Property a statement showing, in such detail as the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-KAdministrative Agent may reasonably request, the certifications required by Form 10-Q, but not Form 6-K, Property NOI for such Mortgaged Property for such quarter.
(e) The Borrower shall be made also provide the Lenders with such other information relating to the Holders Borrower (including, without limitation, any business plan of the Notes and Borrower) as any Lender may from time to time reasonably request. Without limiting the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu generality of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree thatBorrower shall provide the Lenders, for so long as any Notes are outstandingsemi-annually, it will furnish to Holders and to securities analysts and prospective investors, upon their request, within 45 days after the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company end of the Company becomes a guarantor second and fourth fiscal quarters of the Notes, Borrower in each fiscal year during the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements pendency of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration StatementAgreement, and any amendments thereto, with such financial information that satisfies Regulation Sa current rent-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumroll for each Mortgaged Property.
Appears in 1 contract
Samples: Credit Agreement (First Union Real Estate Equity & Mortgage Investments)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall will file with the SEC (and make available to upon written request provide the Trustee and Holders of the Notes (without exhibits)holders with copies thereof, without cost to any Holdereach holder, within 15 5 days after receipt of such request):
(i) within the Company files them with time period specified in the SEC) from ’s rules and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)regulations for non-accelerated filers, an annual report reports on Form 10-K (or any successor form) or Form 20-F (or any successor comparable form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained therein (or required in such successor or comparable form), except to the extent permitted to be excluded by the SEC; and
(ii) within the time period specified in the SEC’s rules and regulations for non-accelerated filers (except for any delay permitted by Rule 13a-13(a) promulgated under the Exchange Act), reports on Form 10-Q (or any successor or comparable form) that would be required if containing the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K therein (or any required in such successor or comparable form) that would be required if the Company were a U.S. Filer; provided), that such reports may be furnished, rather than filed, except to the extent U.S. Filers are permitted to do so be excluded by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, Notes in addition to providing such information to the Trustee and the Holders of the Notesholders, in each case case, within 15 days after the time the Company would be required to file such information with the SEC, SEC if it were subject to Section 13 or 15(d) of the Exchange ActAct as provided above; provided, further, that such reports will not be required to contain the separate financial information for the Company or the Guarantors contemplated by Rule 3-10 or Rule 3-16 under Regulation S-X promulgated by the SEC (or any successor provision). In addition to providing such information to the Trustee, the Company shall make available to the holders, prospective investors, market makers affiliated with any Initial Purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i) and (ii), by posting such information to its website or on IntraLinks or any comparable online data system or website, it being understood that the Trustee shall have no responsibility to determine if such information has been posted on any website.
(b) In the event that:
(i) the rules and regulations of the SEC permit the Company and any direct or indirect parent of the Company to report at such parent entity’s level on a consolidated basis and such parent entity is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the capital stock of the Company, or
(ii) any direct or indirect parent of the Company is or becomes a Guarantor of the Notes, reporting at such parent entity’s level in a manner consistent with that described in this Section 4.02 for the Company will satisfy this Section 4.02, and the Company is permitted to satisfy its obligations in this Section 4.02 with respect to financial information relating to the Company by furnishing financial information relating to such direct or indirect parent; provided that such financial information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and any of its Subsidiaries other than the Company 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.
(c) In addition, the Company will make such information available to prospective investors upon request. In addition, to the extent not satisfied by the foregoing, the Company will agree thatshall, for so long as any Notes are outstandingremain outstanding during any period when it is not subject to Section 13 or 15(d) of the Exchange Act, it will or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to Holders the holders of the Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, the requirements of Company will be deemed to have furnished the reports referred to in this Section 4.03 shall be deemed satisfied prior 4.02 to the commencement of Trustee and the Exchange Offer or holders if the effectiveness of the Shelf Registration Statement by:
(1) the filing Company has filed such reports with the SEC of via the Exchange Offer Registration Statement XXXXX filing system (or Shelf Registration Statementany successor thereto) and such reports are publicly available, and it being understood that the Trustee shall have no responsibility to determine if such information has been posted on any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, orwebsite.
(2e) posting on its website or providing Delivery of such reports, information and documents to the Trustee within 15 days pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the time periods after Company’s compliance with any of its covenants under this Indenture (as to which the Company would have been required Trustee is entitled to file annual and interim reports with the SEC, the financial information (including a “Managementrely exclusively on Officer’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCertificates).
Appears in 1 contract
Samples: Indenture (Gap Inc)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so So long as any Notes are outstanding, it whether or not required by the rules and regulations of the SEC, the Parent shall furnish, without cost, to each Holder of Notes and shall make available on the website referred to in clause (d) of this Section 4.03 below to the extent required therein:
(a) all quarterly and annual financial information (excluding exhibits) that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Parent were required to file such 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 Parent and its consolidated Subsidiaries and, with respect to the annual information only, a report thereon by the Parent’s certified independent accounts; and
(b) the information (excluding exhibits) required to be contained in all current reports that would be required to be filed with the SEC on Form 8-K if the Parent were required to file such reports, in each case within the time periods specified in the SEC’s rules and regulations if the Parent were a “non-accelerated filer” as defined in the applicable rules and regulations of the SEC; provided, however that the provisions of this paragraph shall be satisfied if the Parent files reports containing such information with the SEC within the time periods required by the applicable SEC rules and regulations for “non-accelerated filers.” In addition, the Parent will include in the annual and quarterly reports described in Section 4.03(a) hereof, or otherwise furnish or file with the SEC, annual financial information for the most recently completed fiscal year and quarterly financial information for the most recently completed fiscal quarter and interim period, in each case for the Issuer or for Toys “R” Us, Europe, LLC or any other parent company of the Issuer that is a subsidiary of the Parent, substantially consistent with the presentation of such financial information in the Offering Memorandum under the caption “Summary Historical Condensed Consolidated Financial Data”; provided that such financial information may be presented for Toys “R” Us, Europe, LLC or any other such parent company, in lieu of the Issuer, only if (i) the Issuer is a Wholly-Owned Subsidiary of Toys “R” Us, Europe, LLC or such other parent company and (ii) Toys “R” Us, Europe, LLC or such other parent company has no material assets or operations other than in connection with acting as a direct or indirect holding company for the Issuer. Notwithstanding the foregoing, no such reports shall be required to comply with (a) sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002 and Items 000, 000 xxx 000 xx Xxxxxxxxxx X-X, (x) Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein or (c) Rule 3-10 or Rule 3-16 of Regulation S-X (including, without limitation, Rule 3-10(a) to the extent such Rule would otherwise require the provision of financial statements of the Issuer or any Guarantor other than consolidated financial statements of the Parent). For so long as any Notes remain outstanding, the Issuer shall furnish to the Holders and to securities analysts analysts, market makers and bona fide prospective investorsinvestors that certify that they are qualified institutional buyers, upon their request, the information described above as well as, so long as the Notes constitute “restricted securities” as defined in Rule 144(a)(3) under the Securities Act, all information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
. Notwithstanding anything herein to the contrary, the Parent will file the reports and financial information specified in clauses (a) and (b) In of this Section 4.03 with the event SEC, unless the SEC will not accept such filings. The Parent will not take any action for the purpose of causing the SEC not to accept such filings. If the SEC will not accept such filings, the Parent shall maintain a website to which all of the reports and press releases required by this Section 4.03 are posted. It shall be understood that for the purposes of this Section 4.03, the filing by any direct or indirect parent company of the Company Parent with the SEC of the required information shall constitute a filing by the Parent. The Parent shall also hold a quarterly conference call to discuss the financial results of the Parent with Holders. Such conference call may be part of or separate from any conference call relating to the financial results of any of the Parent’s Subsidiaries. The conference call shall not be later than five Business Days from the date on which the Parent would be required to file its annual or quarterly report with the SEC if the Parent were a “non-accelerated filer” as defined in the applicable rules and regulations of the SEC. No fewer than two days prior to the conference call, the Parent shall issue a press release to the appropriate wire services announcing the time, date and access details of such conference call. If at any time any direct or indirect parent of the Parent becomes a guarantor Guarantor (there being no obligation of any such parent to do so), the reports, information and other documents required to be furnished to Holders of the Notes, the Company may satisfy its obligations under Notes pursuant to this Section 4.03 with respect to financial information relating to and made available on the Company website referenced in clause (d) of this Section 4.03(d)may, at the option of the Parent, be furnished by furnishing financial information relating to and be those of such parentparent rather than the Parent; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentparent and its subsidiaries other than the Parent and its Subsidiaries, on the one hand, and the information relating to the Company Parent and its Restricted Subsidiaries on a standalone basisSubsidiaries, on the other hand.
(c) Notwithstanding the foregoingIn addition, the requirements Issuer will provide without cost to the Holders on the website referred to in clause (d) of this the Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement bybelow:
(1) on or before the filing 20th Business Day after the end of each fiscal month of the Issuer, commencing with the SEC fiscal month ending on or about December 31, 2017, the information required by Schedule D hereto, provided that (i) Holders shall only be provided the information contemplated to be provided on a “public” basis by such Schedule D and (ii) information contemplated by such Schedule D to be provided on a quarterly basis only need be provided with respect to the end of each completed fiscal quarter of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, orIssuer;
(2) posting on its website the 20th Business Day after the end of each fiscal month of the Issuer commencing with the fiscal month ending on or providing about December 31, 2017, a certificate of a responsible financial Officer of the Issuer confirming compliance with the Financial Covenant with respect to the Trustee within 15 days Issuer’s last completed fiscal month; and
(3) copies of all reports or other materials provided to lenders under the Toys Delaware Term Loan DIP Facility that are provided to “public side” lenders, at the time such reports or other materials are provided.
(d) So long as any Notes are outstanding, the Issuers will also maintain a website to which beneficial owners of the time periods after Notes or prospective purchasers of beneficial ownership of the Company would have been Notes are given access (subject to reasonable confidentiality restrictions) and to which all of the reports and other information required to file annual by this “Reports and interim reports Other Information” covenant are posted, unless they are otherwise publicly filed with the SEC, and the financial posting of such reports to such website shall satisfy the above reporting requirements. Such website may be password protected so long as such password is made available to beneficial owners of the Notes and bona fide prospective purchasers of beneficial ownership of the Notes.
(e) Reports and any other information of the Parent or the Issuers, if any, delivered to the Trustee should be considered 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 Issuers’ or the Parent’s compliance with any of their covenants hereunder (including as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to (i) monitor or confirm, on a “Managementcontinuing basis or otherwise, the Parent’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent or the Issuers’ compliance with the presentation covenants described herein or with respect to any reports or other information filed with the SEC or XXXXX or posted on any website under this Indenture, (ii) provide the Holders of financial the Notes with any of the reports or other information required by this “Reports and Other Information” covenant, or (iii) participate in the Offering Memorandumany conference calls.
Appears in 1 contract
Samples: Indenture (Toys R Us Inc)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company Issuer shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with time periods specified in those sections for a large accelerated filer, to the SEC) from and after extent the Issue Date,Issuer is one, or otherwise for a non-accelerated filer:
(1i) within 90 days after the end of each fiscal year (or such shorter period all financial information that would be applicable required to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may be contained in the future prescribe), an annual report on Form 10-K (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 Issuer’s independent registered public accounting firm;
(ii) or Form 20-F (or any successor form) containing substantially the same all financial information (including applicable certifications) that the Company would be required to include be contained in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual quarterly report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to HoldersQ, in lieu of being or any successor or comparable form, filed with the SEC;
(2iii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) all current reports that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall to be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified SEC on Form 8-K after if the occurrence of an event Issuer were required to be therein reported, file such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SECreports; and
(4iv) any other information, documents and other reports that which the Company Issuer would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, subject to Section 13 or 15(d) of the extent U.S. Filers are permitted to do so by the SECExchange Act; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided. Notwithstanding the foregoing, however, that the Company Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make so long as Issuer makes available such information to prospective purchasers of the Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after case, at the time Issuer’s expense and by the Company applicable date the Issuer would be required to file such information pursuant to the immediately preceding sentence. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, the Issuer shall be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the SECrights of the Holders under Article 6 if Holders of at least 25% in principal amount of the then total outstanding Notes have declared the principal, premium, if it were subject any, interest and any other monetary obligations on all the then outstanding Notes to Section 13 be due and payable immediately and such declaration shall not have been rescinded or 15(d) of the Exchange Actcancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company will agree thatIssuer shall, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) Substantially concurrently with the furnishing or making such information available to the Trustee pursuant to the immediately preceding paragraph, the Issuer shall also post copies of such information required by the immediately preceding paragraph on a website (which may be nonpublic and may be maintained by the Issuer or a third party) to which access shall be given to Holders, prospective investors in the Notes (which prospective investors, prior to the consummation of an exchange offer or the effectiveness of a shelf registration statement as required by the Registration Rights Agreement, shall be limited to QIBs, non-U.S. persons (as defined in Regulation S under the Securities Act) or IAIs, and securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer. The Issuer shall hold quarterly conference calls that are publicly accessible after the Issuer’s financial statements for the prior fiscal period have been made available; provided that such conference calls shall be held no later than 5 Business Days after the date that such financial statements are required to be made available. No fewer than three Business Days prior to the date of the conference call required to be held in accordance with the preceding sentence the Issuer shall issue a press release to the appropriate U.S. wire services announcing the time and the date of such conference call and directing the beneficial owners of, and prospective investors in, the Notes and securities analysts to contact an individual at the Issuer (for whom contact information shall be provided in such press release) to obtain information on how to access such conference call.
(c) In the event that any direct or indirect parent company of the Company Issuer becomes a guarantor of the Notes, the Company may Indenture shall permit the Issuer to satisfy its obligations under in this Section 4.03 covenant with respect to financial information relating to the Company Issuer by furnishing financial information relating to such parent; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding Delivery of all such reports, information and documents to the foregoingTrustee is for informational purposes only, and the requirements Trustee’s receipt of this Section 4.03 such reports, information or documents 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 is entitled to rely exclusively on Officer’s Certificates).
(e) The Issuer shall be deemed satisfied prior to have furnished such reports to the commencement of Trustee and the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing Holders if it has filed such reports with the SEC of using the Exchange Offer Registration Statement or Shelf Registration Statement, XXXXX filing system and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumare publicly available.
Appears in 1 contract
Samples: Indenture (Radioshack Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to the rules and regulations promulgated by the SEC, the Company shall will file with the SEC (and make available to within the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with time periods specified in the SEC) from ’s rules and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period regulations that would be are then applicable to the Company (or if it were a U.S. company that the Company is not a foreign private issuer and that is then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, then the time periods for filing applicable to a filer that is not an “accelerated filer” as defined in such rules and regulations) (a “U.S. Filer”in either case, including any extension as would be permitted by Rule 12b-25 under the Exchange Act):
(1) as the SEC may all financial information that would be required to be contained in the future prescribe), an annual report on Form 10-K (K, or any successor or comparable form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period all financial information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-Kor any successor or comparable form, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section; and
(3) within all current reports that would be required to be filed with the time periods specified SEC on Form 8-K after the occurrence of an event required to be therein reportedK, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor or comparable form) that would be required , if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; providedsuch reports, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, case in a manner that complies in all material respects with the requirements specified in such form; form provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred.
(b) Notwithstanding Section 4.06(a), (i) the Company shall will not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event so long as the Company will make available such information to prospective purchasers of Notes, in addition to providing provides such information to the Trustee and the Holders and makes available such information to prospective purchasers of the Notes, in each case within 15 days after at the time Company’s expense and by the applicable date the Company would be required to file such information with pursuant to Section 4.06(a) and (ii) the Company will not be obligated to provide to the Trustee or the Holders or make available to prospective purchasers of the Notes any materials for which it has sought and received confidential treatment by the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it the Company will furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
. The requirements set forth in Sections 4.06(a) and 4.06(b) may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (b) In the event that any direct or indirect parent company of which may be nonpublic and may be maintained by the Company becomes or a guarantor third party) to which access will be given to Holders and prospective purchasers of the Notes; provided that the Trustee shall have no responsibility to determine if such posting has occurred. Delivery of such reports, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating and documents to the Company by furnishing financial information relating to such parent; provided, however that the same Trustee is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information relating contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Company and its Restricted Subsidiaries Trustee is entitled to rely exclusively on a standalone basis, on the other handOfficer’s Certificates).
(c) Notwithstanding In addition, no later than five Business Days after the foregoingdate the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or (2), the requirements Company shall also hold live quarterly conference calls with the opportunity to ask questions of this Section 4.03 management for the benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions (any such call, a “Bondholder Call”); provided that, so long as the Company holds quarterly conference calls for investors of its Common Stock, it shall not be deemed satisfied required to hold separate or additional Bondholder Calls. If the Company holds any Bondholder Call, no fewer than five calendar days prior to the commencement date such Bondholder Call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such Bondholder Call for the benefit of the Exchange Offer or Trustee, the effectiveness Holders, beneficial owners of the Shelf Registration Statement by:Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions, which press release shall contain the time and the date of such Bondholder Call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such Bondholder Call.
(1d) If the filing with Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then the SEC annual and quarterly financial information required by this Section 4.06 shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the Exchange Offer Registration Statement financial statements or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of in the Securities Act, or
(2) posting on its website or providing footnotes to the Trustee within 15 days of financial statements and in the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section, 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.
(e) that would be The Company shall also make available copies of all reports required by this Section 4.06 at the offices of the Paying Agent in London or, to be included in such reports, subject to exceptions consistent with the presentation of financial information extent and in the Offering Memorandummanner permitted by the rules of the Exchange, post such reports on the official website of the Exchange.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (DIEBOLD NIXDORF, Inc)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Holdings shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (other than compensation information), 5.03(b) and Item 9.01 (only to the extent relating to any of the foregoing) of Form 8-K if Holdings had been a reporting company under the Exchange Act; provided, however, that no such current reports (or Items thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be provided (or included) if Holdings determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of Holdings and its Restricted Subsidiaries, taken as a whole. In addition to providing such information to the Trustee, Holdings shall make available to the holders, prospective investors, market makers affiliated with the initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) or (iii), by posting such information to its website (or any successor formof Holdings’ parent companies) if or on IntraLinks or any comparable online data system or website. Notwithstanding the Company were a U.S. Filer; providedforegoing, (A) Holdings will not be required to furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial statements included therein shall measures contained therein, (B) such reports will not be prepared in accordance with GAAP; providedrequired to contain the separate financial information for Subsidiary Guarantors contemplated by Rule 3-09, furtherRule 3-10 or Rule 3-16 of Regulation S-X, that if or include any annual report is filed on Form 20-F, the exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in this offering memorandum and shall not be required to file with the SEC if it were a U.S. Filer; providedpresent compensation or beneficial ownership information.
(b) The financial statements, that such reports information and other documents required to be provided as described above, may be furnishedthose of (i) Holdings or (ii) any direct or indirect parent of Holdings (any such entity, rather than fileda “Reporting Entity”), so long as in the case of (ii) such direct or indirect parent of Holdings shall not conduct, transact or otherwise engage, or commit to the extent U.S. Filers are permitted to do so by the SEC; in each caseconduct, transact or otherwise engage, in a manner that complies in any business or operations other than its direct or indirect ownership of all material respects with of the requirements specified in such formEquity Interests in, and its management of Holdings; providedprovided that, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit financial information so furnished relates to such filingdirect or indirect parent of Holdings, in which event the Company same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to Holdings and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Holdings will make available such information available to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesHoldings shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, Holdings will be deemed to have delivered such reports and information referred to in this Section 4.02 to the Trustee and the holders if Holdings or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided to the Trustee and the holders on Holdings’ website (or that of any of Holdings’ parent companies). The Trustee shall have no obligation to monitor whether Holdings (or any of Holding’s parent companies) posts such reports, subject information and documents on its website or the SEC’s XXXXX service, or collect any such information from Holding’s (or any of Holding’s parent companies) website or the SEC’s XXXXX service. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the transactions contemplated hereunder.
(e) Holdings will also hold quarterly conference calls for all holders of the Notes and securities analysts to exceptions consistent with the presentation of discuss such financial information in no later than five Business Days after the Offering Memorandumdistribution of such information required by clauses (i) or (ii) of Section 4.02(a) and prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, from and after the Issue Date, the Company shall file with the SEC (and make available furnish to the Trustee and Holders of the Notes (without exhibits), without cost to any HolderTrustee, within 15 days after the Company files them with the SEC) from and after the Issue Date,time periods specified below:
(1) within 90 120 days (or 150 days in the case of the fiscal year containing the Issue Date) after the end of each fiscal year (or if such shorter period that would be applicable to the Company if it were a U.S. company that day is not a foreign private issuer and that is subject to Business Day, on the reporting requirements of Section 13 or 15(d) next succeeding Business Day), annual financial statements of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders a “Management’s discussion and analysis of the Notes financial condition and the Trustee as results of operations” containing information customarily included if such report had been made on section was included in a Form 10-K and provided to a report on the Trustee and made available to Holders, in lieu of being filed with annual financial statements by the SECCompany’s independent auditors;
(2) within 45 60 days (or 90 days in the case of the first fiscal quarter after the Issue Date) after the end of each of the first three fiscal quarters of each fiscal year (or if such shorter period that would be applicable to day is not a Business Day, on the Company if it were a U.S. Filer as the SEC may in the future prescribenext succeeding Business Day), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that GAAP and a “Management’s discussion and analysis of financial condition and results of operations,” containing information customarily included if any quarterly report is filed on Form 6-K, the certifications required by such section was included in a Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;; and
(3) within 15 days after the time periods period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Company containing substantially all of the information that would be required to be filed in a current report on Form 8-K after under the occurrence of an event required to be therein reported, such other reports Exchange Act on the appropriate form for reporting current events containing substantially the same information required Issue Date pursuant to be contained in Items 1.03, 2.01, 4.01, 4.02, and 5.01 of Form 8-K if the Company had been a reporting company under the Exchange Act; provided, however, that no such current reports (or Items thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be furnished to the Trustee (or included in any successor formfurnished current report) if the Company determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Company and its Restricted Subsidiaries, taken as a whole, and, in addition, the Company shall not be obligated to furnish to the Trustee (i) an exhibit or a summary of the terms or any employment or compensatory arrangement, agreement, plan or understanding between the Company or any of its Subsidiaries and any director, officer or manager of the Company or any of its Subsidiaries, (ii) copies of any agreements, financial statements or other items that would be required if the Company were to be filed as exhibits to a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
current report on Form 8-K or (4iii) any other trade secrets, privileged or confidential information obtained from another Person and competitively sensitive information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Circular; provided, however, that the Company shall not be so obligated required to file such reports (i) comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein, (ii) provide any information that is not otherwise similar to information currently included in the Offering Circular, (iii) provide separate financial statements or other information contemplated by Rules 3-05, 3-09, 3-10 or 3-16 of Regulation S-X, or in each case any successor provisions or any schedules required by Regulation S-X or comply with the SEC if requirements of Regulation S-X or (iv) contain any “segment reporting.” In addition, notwithstanding the SEC does not permit such filingforegoing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would not be required to file (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, (ii) comply with rules or regulations promulgated by the SEC concerning Extensible Business Reporting Language (XBRL) or (iii) otherwise furnish any information, certificates or reports required by Items 307, 308, 402, 405, 406, 407 and 601 of Regulation S-K. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is 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 with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the SECrights of the Holders under Section 6.1 hereof if Holders of at least 30.0% in aggregate principal amount of the outstanding Notes have declared the principal, premium, if it were subject any, interest and any other monetary obligations on all the then outstanding Notes to Section 13 be due and payable immediately and such declaration shall not have been rescinded or 15(d) of the Exchange Actcancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company will shall agree that, for so long as any Notes are outstanding, it will shall furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In Delivery of reports, information and documents to the event Trustee under this Indenture will be for informational purposes only and the information and the Trustee’s receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein, or determinable from information contained therein, including the Company’s compliance with any of its covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee shall have no duty to monitor or confirm whether the Company or any Parent Entity posts reports, information or documents on SEC’s website or otherwise, collect any such information from the SEC’s website or otherwise, or review or analyze reports delivered to it.
(c) Substantially concurrently with the furnishing of such information to the Trustee pursuant to Section 3.10(a), the Company shall also use its commercially reasonable efforts to post copies of such information required by Section 3.10(a) on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to the Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), and securities analysts and market making financial institutions that are reasonably satisfactory to the Company. To the extent the Company determines in good faith that it cannot make such reports available in the manner described in the preceding sentence after the use of its commercially reasonable efforts, the Company shall furnish such reports to the Holders, upon their request. The Company may condition the delivery of any direct such reports to such Holders, prospective investors in the Notes and securities analysts and market making financial institutions on the agreement of such Persons to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports (and the information contained therein) and information for any purpose other than their investment or indirect parent company potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein) and information.
(d) The Company will participate in quarterly conference calls (which may be a single conference call together with investors and lenders holding other securities or Indebtedness of the Company, its Restricted Subsidiaries and/or any Parent Entity) to discuss results of operations. The conference call will be following the last day of each fiscal quarter of the Company becomes and not later than twenty (20) Business Days from the time that the Company distributes the financial information as set forth in Section 3.10(a). No fewer than two days prior to the conference call, the Company will issue a guarantor press release or otherwise announce the time and date of such conference call and providing instructions for Holders, prospective investors in the Notes, the securities analysts and market making financial institutions to obtain access to such call.
(e) The Company may satisfy its obligations under pursuant to this Section 4.03 3.10 with respect to financial information relating to the Company by furnishing financial information relating to such parenta Parent Entity; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentParent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cf) Notwithstanding anything to the foregoingcontrary set forth in this Section 3.10, if the Company or any Parent Entity has furnished to the Holders of Notes or filed with the SEC the reports described in this Section 3.10 with respect to the Company or any Parent Entity, the requirements Company shall be deemed to be in compliance with the provisions of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:3.10.
(1g) the filing with the SEC of the Exchange Offer Registration Statement The Trustee shall have no duty to determine whether any filings or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would postings described in this Section 3.10 have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandummade.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject The Issuer shall furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,Trustee:
(1) within 90 100 days after the end of each fiscal year (or of the Issuer ending after the Issue Date, the consolidated financial statements of the Issuer for such shorter period year prepared in accordance with GAAP, together with a report thereon by the Issuer’s independent auditors, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may included in the future prescribe), an annual report Annual Report on Form 10-K (or any successor as in effect on the Issue Date) filed with the SEC by the Issuer (if the Issuer were required to prepare and file such form); it being understood that (x) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would Issuer shall not be required to include in Form 10-K (any consolidating financial information with respect to the Issuer, any Subsidiary Guarantor or any successor formother affiliate of the Issuer, or any separate financial statements or information for the Issuer, any Subsidiary Guarantor or any other Affiliate of the Issuer and (y) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-Fapplicable, the certifications required by Form 10Issuer shall provide guarantor/non guarantor financial data consistent with the guarantor/non-K, but not Form 20-F, shall be made to guarantor financial data presented in the Holders “Summary—The Offering” section of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SECOffering Memorandum;
(2) within 45 55 days after the end of each of the first three fiscal quarters of in each fiscal year (or of the Issuer, beginning with the first such shorter period fiscal quarter ending after the Issue Date, the condensed consolidated financial statements of the Issuer for such quarter prepared in accordance with GAAP, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be applicable to the Company if it were included in a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Quarterly Report on Form 10-Q (as in effect on the Issue Date) filed with the SEC by the Issuer (if the Issuer were required to prepare and file such form); it being understood that (x) the Issuer shall not be required to include any consolidating financial information with respect to the Issuer, any Subsidiary Guarantor or any successor formother affiliate of the Issuer, or any separate financial statements or information for the Issuer, any Subsidiary Guarantor or any other Affiliate of the Issuer and (y) if applicable, the Issuer shall provide guarantor/non guarantor financial data consistent with the guarantor/non-guarantor financial data presented in the “Summary—The Offering” section of the Offering Memorandum; and
(3) information substantially similar to the information that would be required if the Company were to be included in a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified Current Report on Form 8-K (as in effect on the Issue Date) filed with the SEC by the Issuer (if the Issuer were required to prepare and file such form) pursuant to Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountants), Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review, 5.01 (Changes in Control of Registrant) or Items 5.02(b) and (c) (Departure of Directors or Certain Officers); Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers), of such form, within 15 days after the occurrence date of an event filing that would have been required to be therein reported, such other reports for a current report on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such formK; provided, however, that the Company no report shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 include (1) any exhibits or 15(d(2) a summary of the Exchange Actterms of, any employment or compensatory arrangement, agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer of the Issuer (or any of its Subsidiaries). In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any the Notes are outstandingremain subject to this Section 4.03(a), it will the Issuer shall furnish to Holders and to securities analysts thereof and prospective investorsinvestors in such Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under (as in effect on the Issue Date) of the Securities Act.
(b) Substantially concurrently with the furnishing or making available to the Trustee of the information specified in Section 4.03(a) hereof, the Issuer shall also
(1) use its commercially reasonable efforts (i) to post copies of such reports on such website as may be then maintained by the Issuer, or (ii) to post copies of such reports on a website (which may be nonpublic) to which access is given to Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act that certify their status as such to the reasonable satisfaction of the Issuer), and securities analysts and market-making financial institutions reasonably satisfactory to the Issuer, or (iii) otherwise to provide substantially comparable availability of such reports (as determined by the Issuer in good faith) (it being understood that, without limitation, making such reports available on the Issuer’s website, Bloomberg or another private electronic information service shall constitute substantially comparable availability), or
(2) to the extent the Issuer determines in good faith that it cannot make such reports available in the manner described in clause (1) of this Section 4.03(b) after the use of its commercially reasonable efforts, furnish such reports to the Holders of the Notes, upon their request.
(c) In the event that any direct or indirect parent company of the Company becomes a guarantor of Issuer guarantees the NotesNotes (which shall be permitted, subject to compliance with this Indenture, at any time, at the Company may Issuer’s sole discretion) or files the reports specified in Section 4.03(a) with the SEC, this Indenture will permit the Issuer to satisfy its obligations under in this Section 4.03 with respect to the financial information relating to the Company Issuer by furnishing financial information relating to such parent; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. Such parent shall not be considered a Guarantor by virtue of providing such guarantee, which may be released at any time. The obligations under this Section 4.03 may be satisfied by having the applicable entity file reports containing the information contemplated hereby within the timeframes contemplated hereunder with the SEC.
(cd) Notwithstanding At any time that any of the foregoingIssuer’s Subsidiaries are Unrestricted Subsidiaries, then the requirements of quarterly and annual financial information required by this Section 4.03 shall be deemed satisfied prior to include a reasonably detailed presentation, on or in any of (i) the commencement face of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
financial statements, (1ii) the filing with footnotes thereto or (iii) the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, of the financial condition and results of operations of the Issuer and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(e) that would be required to be included in such reports, subject to exceptions consistent with the presentation Delivery of reports or financial information in to the Offering MemorandumTrustee pursuant to this Section 4.03 shall not constitute actual or constructive knowledge or notice of the information contained therein.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that For so long as the Company may is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with the SEC (subject to the next sentence), and provide to the Holders of the Notes, within the time periods specified in such Sections:
(i) all quarterly and annual reports required to be filed with the SEC on Forms 10-Q and 10-K; and
(ii) all current reports required to be filed with the SEC on Form 8-K. While the Company remains subject to the periodic reporting requirements of the Exchange Act, the Company agrees that it will not be take any action for the purpose of causing the SEC not to accept such filings.
(b) If, at any time, the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECany reason, the Company shall will nevertheless provide to the holders of the Notes the substance of the reports specified above, other than (a) separate financial statements or condensed consolidating financial information required by Rule 3-10 or 3-16 of Regulation S-X; (b) information required by Item 10(e) of Regulation S-K or Regulation G under the Securities Act (in each case with respect to any non-GAAP financial measures contained therein); and (c) information required by Item 402 or 601 of Regulation S-K (but will not be required to file such reports with the SEC SEC), in each case within the time periods that would apply if the Company were required to file those reports with the SEC. Such information may be provided to holders of the Notes via a non-public, password protected website maintained by the Company, any direct or indirect parent of the Company, any Restricted Subsidiary or a third party to which access will be given to holders of the Notes, prospective investors in the Notes and securities analysts and market making financial institutions. Any person who requests or accesses financial information required by this covenant and provided via a non-public website as set forth above will be required to provide its email address, employer name and represent to the Company that:
(1) it is a holder of the Notes, a beneficial owner of the Notes, a bona fide prospective investor in the Notes, a bona fide market maker in the Notes or a bona fide securities analyst providing an analysis of investment in the Notes;
(2) it will not use the information in violation of applicable securities laws or regulations;
(3) it will keep such provided information confidential; and
(4) it (a) will not use such information in any manner intended to compete with the business of the Company and make available its Subsidiaries and (b) is not a Person (which includes such Person’s Affiliates (other than any affiliate that is a bona fide debt fund, mutual fund, insurance company, financial institution or investment vehicle engaged in the business of investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course)) that (i) is principally engaged in a Similar Business or (ii) derives a significant portion of its revenues from operating or owning a Similar Business.
(c) For purposes of this Section 4.02, the Company will be deemed to have provided a required report to the Trustee and Holders of the Notes if it has timely filed such report with the SEC via the XXXXX filing system (without exhibitsor any successor system).
(d) For so long as Notes are outstanding, without cost to any Holder, within 15 days after the Company files them will hold quarterly conference calls for the Holders of the Notes to discuss the financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as the Company’s conference call with equity investors and analysts). The conference call will be held following the SEC) from and after the Issue Date,
(1) within 90 days after the end last day of each fiscal year quarter of the Company and not later than 10 Business Days from the time that the Company (i) distributes the financial information as set forth in Sections 4.02(a) and (b) above or such shorter period that would be applicable (ii) distributes substantially similar financial information in an earnings release format. No fewer than two days prior to the conference call, the Company if it were will issue a U.S. company that press release announcing the time and date of such conference call and providing instructions for Holders of the Notes, securities analysts and prospective investors to obtain access to such call.
(e) At any time when the Company is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)Act, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made will furnish to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their requestthe requests of such holders, the 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.
(bf) In Notwithstanding the event that any direct or indirect parent company of the Company becomes a guarantor of the Notesforegoing, the Company may satisfy its obligations under pursuant to this Section 4.03 4.02 with respect to financial information relating to the Company by providing, furnishing or filing the required financial information relating to a direct or indirect parent company and, unless such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on direct or indirect parent company becomes a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement guarantor of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration StatementNotes, and any amendments thereto, with such financial information that satisfies Regulation S-X will include a reasonably detailed presentation, either on the face of the Securities Actfinancial statements or in the footnotes thereto, or
(2) posting on its website or providing to in the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or in another comparable section, of the financial condition and results of operations of the Company and Restricted Subsidiaries separate from the financial condition and results of operations of such direct or indirect parent company of the Company.
(g) Notwithstanding anything herein to the contrary, the Company will not be deemed to have failed to comply with its obligations under this Section 4.02 for purposes of Section 6.01(3) until the date that would is 90 days after the date any report hereunder is due, and any failure to comply with this Section 4.02 shall be automatically cured when the Company or its direct or indirect parent company, as the case may be, provides all required reports to be included in such reports, subject to exceptions consistent the Holders of the Notes or files all required reports with the presentation SEC.
(h) At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries and any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, taken together as one Subsidiary, constitute or would constitute a Significant Subsidiary of the Company based on the financial statements for the most recently ended fiscal year for which financial statements are available, then the quarterly and annual financial information required by this Section 4.02 will include a reasonably detailed presentation, either on the face of the financial statements or in the Offering Memorandumfootnotes thereto, in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or in another comparable section, of the financial condition and results of operations of the Company and Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Company.
(i) With respect to this Section 4.02, the Trustee shall have no obligation to determine whether such information, documents or reports have been so posted or filed. Delivery, if any, of such information, documents and reports to the Trustee under this Indenture is for informational purposes only and the information and Trustee’s receipt of the foregoing shall not constitute actual or constructive notice or knowledge of any 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 exclusively on an Officer’s Certificate). The Trustee shall have no duty to review or analyze reports delivered to it or filed with the SEC. Additionally, 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 any internet or intranet website or datasite under this Indenture or to participate in any conference calls.
Appears in 1 contract
Samples: Indenture (Glatfelter Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall file with the SEC (and make available provide to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,following reports:
(1) within 90 days after the end of each fiscal year (or such shorter period beginning with the fiscal year ending December 31, 2023), an annual report containing substantially all the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially under the same information (including applicable certifications) that Exchange Act if the Company would had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter beginning with the fiscal quarter in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q (or any successor form) that would be required under the Exchange Act if the Company were had been a U.S. Filer; providedreporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), that the including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements included therein shall be prepared in accordance with GAAP; provided, further, provided that if any such quarterly report is filed on Form 6-K, shall not be required to contain the certifications information required by Form 10-QPart I, but not Form 6-K, shall be made to the Holders Item 4 of the Notes and the Trustee as if such report had been made on Form 10-Q (controls and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;procedures); and
(3) within ten Business Days after the time periods specified occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 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) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K after under the occurrence of an event required to be therein reportedExchange Act if the Company had been a reporting company under the Exchange Act, such other current reports on the appropriate form for reporting current events containing substantially all the same information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K (or any successor form) that would be required under the Exchange Act if the Company were had been a U.S. Filerreporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth a calculation of Adjusted EBITDA; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that that, so long as the Company shall is not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information subject to the Trustee and the Holders reporting requirements of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. , such reports (a) shall not be required to comply with Section 302 or 404 of the Xxxxxxxx-Xxxxx Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain the disclosure contemplated by Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC or a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC, (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any First Lien Notes are outstanding, it will the Company shall furnish to Holders and to securities analysts and prospective investorspurchasers of the First Lien Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the First Lien Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(bc) In the event that any direct or indirect parent company of the The Company becomes a guarantor of the Notes, the Company may will be permitted to satisfy its obligations under this Section 4.03 covenant with respect to financial information relating to the Company (including, for the avoidance of doubt, the obligation to provide a calculation of Adjusted EBITDA) by furnishing financial information relating to such parentany Parent Entity; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentParent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cd) Notwithstanding anything to the foregoingcontrary set forth above, if the Company or any Parent Entity has furnished the Holders of First Lien Notes or filed with the SEC the reports described in the preceding paragraphs with respect to the Company or any Parent Entity, the requirements of this Section 4.03 Company shall be deemed satisfied to be in compliance with the provisions of this covenant.
(e) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company or any Parent Entity shall also hold live quarterly conference calls with the opportunity to ask questions of the Company or such Parent Entity, as applicable (it being understood that such quarterly conference call may be the same conference call as that held for Company’s or, as applicable, any Parent Entity’s equity investors, debt investors or analysts). Prior to the commencement date such conference call is to be held, the Company, or, as applicable, the applicable Parent Entity shall issue a press release to the appropriate U.S. wire services or otherwise announce such quarterly conference call for the benefit of the Exchange Offer or the effectiveness Holders, beneficial owners of the Shelf Registration Statement by:
(1) the filing with the SEC First Lien Notes, bona fide prospective purchasers of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X First Lien Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), orsecurities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and include information on how to access such quarterly conference call.
(2f) posting If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its website or providing to Restricted Subsidiaries for the Trustee period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, of selected financial metrics (which metrics will be selected by the Company in its sole discretion) of such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations” section.
(g) To the extent any information is not provided within 15 days of the time periods after specified in this Section 4.06 and such information is subsequently provided, the Company would will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been required cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to file annual make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and interim reports with the SEC, the financial information (including a “ManagementTrustee’s Discussion and Analysis receipt of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject information and documents shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to exceptions consistent which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the presentation provisions of financial this First Lien Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in the Offering Memorandumor monitor any conference calls.
Appears in 1 contract
Samples: First Lien Senior Secured Pik Notes Indenture (WeWork Inc.)
Reports and Other Information. The Borrower shall furnish to the Administrative Agent (and the Administrative Agent will forward to or post on the Approved Electronic Platform for the Lenders) each of the following:
(a) Notwithstanding that within the Company may not be subject to time period specified in the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to Commission's rules and regulations promulgated by the SECregulations, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report reports on Form 10-K (or any successor form) or Form 20-F (or any successor comparable form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained therein (or required in such successor or comparable form), and
(b) within the time period specified in the Commission's rules and regulations, reports on Form 10-Q (or any successor or comparable form) that would be required if containing the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K therein (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such successor or comparable form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act). In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that that:
(i) the rules and regulations of the Commission permit the Borrower and any direct or indirect parent company of the Company becomes Borrower to report at such parent entity's level on a guarantor consolidated basis and
(ii) such parent entity of the NotesBorrower is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the Company may capital stock of the Borrower, such consolidated reporting at such parent entity's level in a manner consistent with that described in this covenant for the Borrower will satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parentcovenant; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentdirect or indirect parent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand. Notwithstanding the foregoing, the Borrower will be deemed to have furnished such reports referred to above to the Administrative Agent and the Lenders if (i) Marquee has filed such reports (with respect to Marquee) with the Commission via the XXXXX filing system and such reports are publicly available and (ii) the Borrower has provided to the Administrative Agent the financial statements which it would have been required to include in such reports if the Borrower had been the registrant thereunder. In addition, such requirements shall be deemed satisfied by the filing with the Commission of a registration statement or an amendment thereto relating to debt or equity securities of the Borrower if such registration statement and/or amendments thereto are filed at times that otherwise satisfy the time requirements set forth in the first paragraph of this covenant. In the event that any direct or indirect parent of the Borrower is or becomes a guarantor of the Loans, the Borrower shall satisfy its obligations under this Section 5.9 (Reports and Other Information) with respect to financial information relating to the Borrower by furnishing financial information relating to such direct or indirect parent; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, so long as any Notes are Outstanding, the Company shall file with the SEC (and make available will furnish to the Trustee and Holders of the Notes following:
(without exhibits), without cost to any Holder, within 15 days after the Company files them with the SECa) from and after the Issue Date,
(1) within 90 days after the end time periods specified in the SEC’s rules and regulations for non-accelerated filers, all quarterly and annual financial information of each fiscal year (or such shorter period the Company that would be applicable required to be contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor comparable forms) if the Company were required to file such Forms; and
(b) promptly from time to time after the occurrence of an event required to be therein reported (and in any event within the time periods specified in the SEC’s rules and regulations), current reports that would be required to be filed with the SEC on Form 8-K if it the Company were a U.S. company required to file such reports; provided that is such reports will not a foreign private issuer and that be required to contain the separate financial information for the Company or the Guarantors contemplated by Rule 3-10 under Regulation S-X or information required by Rule 3-16 under Regulation S-X promulgated by the SEC (or any successor provisions). If any direct or indirect parent of the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)Act, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required then reporting by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, parent entity in a manner consistent with that complies described in all material respects with the first paragraph of this Section 1006 for the Company will satisfy the requirements specified in of such form; providedclause, however, provided that the Company shall furnish, together with such financial information, a reasonably detailed explanation of the assets, liabilities and expenses included in such financial information that are not be so obligated attributable to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to and its Subsidiaries. After the Trustee Issue Date and the Holders of the Notes, in each case within 15 days after the time for so long as any Notes remain Outstanding during any period when the Company would be required to file such information with the SEC, if it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the extent not satisfied by SEC with certain information pursuant to Rule 12g3-2(b) of the foregoingExchange Act, the Company will agree that, for so long as any Notes are outstanding, it will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) . Notwithstanding the foregoing, the requirements of this Section 4.03 shall Company will be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with have furnished such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing reports referred to above to the Trustee within 15 days of the time periods after if the Company would have been required to file annual and interim has filed such reports with (or furnished such reports to) the SECSEC via the XXXXX filing system (or any successor thereto) and such reports are publicly available, it being understood that the financial Trustee shall have no responsibility to determine if such information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumhas been posted on any website.
Appears in 1 contract
Samples: Indenture (NMI Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company Issuer shall file with the SEC (and make available provide to the Trustee and and, upon request, to the Holders a copy of all of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from following information and after the Issue Date,reports:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would as may be applicable permitted by the SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), annual audited financial statements for such fiscal year including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the Company if it were periods presented and a U.S. company that is not a foreign private issuer and that is subject to report on the reporting requirements of Section 13 or 15(d) annual financial statements by the Issuer’s independent registered public accounting firm (all of the Exchange Act (foregoing financial information to be prepared on a “U.S. Filer”) as basis substantially consistent with the SEC may corresponding financial information included in the future prescribeOffering Memorandum), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;,
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the future prescribeOffering Memorandum), a report containing substantially and
(iii) within the same information (including applicable certifications) required to be contained in time period specified for filing current reports on Form 108-Q (or any successor form) K by the SEC, current reports that would be required to be filed with the SEC on Form 8-K if the Company Issuer were required to file such reports for any of the following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of the Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of the Issuer or any Restricted Subsidiary having a principal amount in excess of $75 million, (d) a change in the Issuer’s certifying independent auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of Holdings, (f) resignation of a director on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions, (j) entry into material agreements, (k) entry into material financial obligations and (l) historical financial statements of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K to the extent and in the form available to the Issuer (as determined by the Issuer in good faith) if the Issuer were a U.S. Filerreporting company under the Exchange Act); providedprovided that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders or to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial statements included therein shall be prepared in accordance with GAAPposition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that if any quarterly report is filed on Form 6such non-K, the certifications required by Form 10-Q, but not Form 6-K, disclosure shall be made limited only to the Holders of the Notes those specific provisions that would cause material competitive harm and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after not the occurrence of an the event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Fileritself; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and upon request, Holders, the Holders of Issuer shall, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of the Issuer or on a non-public, password-protected website maintained by the Issuer or a third party, in each case case, within 15 days after the time the Company Issuer would be required to file provide such information with pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (as determined by the SECIssuer in good faith) (it being understood that, if it were subject without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the foregoing, (i) the Issuer shall not be required to furnish any information, certificates or reports required by (A) Section 13 302, Section 404 or 15(dSection 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the Exchange Act. SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (ii) the information and reports referred to in Section 3.2(a) will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information including, without limitation, in respect of the Transactions is required to be provided by the Issuer, the Issuer may provide only pro forma revenues, net income, income before extraordinary items and the cumulative effect of accounting changes, EBITDA, Adjusted EBITDA (as such term is defined in the Offering Memorandum), senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the information and reports referred to in Section 3.2(a) shall not be required to present compensation or beneficial ownership information and (v) the information and reports referred to in Section 3.2(a) shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K.
(c) For so long as the Issuer has designated certain of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by Section 3.2(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, or in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, 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.
(d) In addition, to the extent not satisfied by the foregoing, the Company will agree Issuer agrees that, for so long as any Notes are outstanding, it will shall furnish to Holders and to securities analysts and prospective investorsHolders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Issuer, those of (i) any predecessor or successor of the Issuer or any entity meeting the requirements of clauses (ii) or (iii) of this Section 3.2(e), (ii) any Wholly Owned Subsidiary of the Issuer that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Issuer and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent company of the Company becomes a guarantor Issuer; provided that, if the financial information so furnished relates to such Qualified Reporting Subsidiary of the NotesIssuer or such direct or indirect parent of the Issuer, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information information, which may be posted to the website of the Issuer or on a non-public, password-protected website maintained by the Issuer or a third party, that explains in reasonable detail the differences between the information relating to such parentQualified Reporting Subsidiary or such parent entity (as the case may be), on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cf) Notwithstanding The Issuer will be deemed to have satisfied the foregoinginformation and reporting requirements of Section 3.2(a) if (i) the Issuer or any Qualified Reporting Subsidiary of the Issuer or any direct or indirect parent of the Issuer has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC via XXXXX to the extent it is otherwise provided to Holders pursuant to this covenant) with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and that are publicly available or (ii) with respect to the Holders only, the requirements of Issuer or any Qualified Reporting Subsidiary or any parent entity has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 4.03 3.2.
(g) So long as Notes are outstanding, the Issuer shall be deemed satisfied also:
(i) promptly after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(i) and (ii), hold a conference call to discuss such reports and the results of operations for the relevant reporting period; and
(ii) post to the website of the Issuer, announce by press release or on a non-public, password-protected website maintained by the Issuer or a third party, which will require a confidentiality acknowledgment (but not restrict the recipients of such information from trading securities of the Issuer or its affiliates), prior to the commencement date of the Exchange Offer conference call required to be held in accordance with Section 3.2(g)(i), the time and date of such conference call and either all information necessary to access the call or informing the effectiveness Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of an investment in the Shelf Registration Statement byNotes) how they can obtain such information, including, without limitation, the applicable password or other login information.
(h) Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this covenant will be required to provide its email address, employer name and other information reasonably requested by the Issuer and represent to the Issuer (to the Issuer’s reasonable good faith satisfaction) that:
(1i) the filing with the SEC it is a Holder, a beneficial owner of the Exchange Offer Registration Statement or Shelf Registration StatementNotes, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information bona fide prospective investor in the Offering Memorandum.Notes, a bona fide market maker in the Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of investment in the Notes;
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, CommScope or the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company Issuer shall file with the SEC (and make available provide to the Trustee and and, upon request, to the Holders a copy of all of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from following information and after the Issue Date,reports:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would as may be applicable permitted by the SEC if CommScope were then subject to SEC reporting requirements as a non-accelerated filer), annual audited financial statements for such fiscal year including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the Company if it were periods presented and a U.S. company that is not a foreign private issuer and that is subject to report on the reporting requirements of Section 13 or 15(d) annual financial statements by CommScope’s independent registered public accounting firm (all of the Exchange Act (foregoing financial information to be prepared on a “U.S. Filer”) as basis substantially consistent with the SEC may corresponding financial information included in the future prescribeOffering Memorandum), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;,
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may if CommScope were then subject to SEC reporting requirements as a non-accelerated filer), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the future prescribeOffering Memorandum), a report containing substantially and
(iii) within the same information (including applicable certifications) required to be contained in time period specified for filing current reports on Form 108-Q (or any successor form) K by the SEC, current reports that would be required to be filed with the SEC on Form 8-K if CommScope were required to file such reports for any of the Company following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of CommScope, the Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of CommScope or any Restricted Subsidiary having a principal amount in excess of $75 million, (d) a change in CommScope’s certifying independent auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of Holdings, (f) resignation of a director on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions, (j) entry into material agreements, (k) entry into material financial obligations and (l) historical financial statements of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K to the extent and in the form available to CommScope (as determined by CommScope in good faith) if CommScope were a U.S. Filerreporting company under the Exchange Act); providedprovided that no such current report will be required to be furnished if CommScope determines in its good faith judgment that such event is not material to Holders or to the business, assets, operations, financial position or prospects of CommScope and its Restricted Subsidiaries, taken as a whole, or if CommScope determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial statements included therein shall be prepared in accordance with GAAPposition or prospects of CommScope and its Restricted Subsidiaries, taken as a whole; provided, further, that if any quarterly report is filed on Form 6such non-K, the certifications required by Form 10-Q, but not Form 6-K, disclosure shall be made limited only to the Holders of the Notes those specific provisions that would cause material competitive harm and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after not the occurrence of an the event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Fileritself; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and upon request, Holders, CommScope or the Holders of Issuer shall, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of CommScope or the Issuer or on a non-public, password-protected website maintained by CommScope, the Issuer or a third party, in each case case, within 15 days after the time the Company CommScope would be required to file provide such information with pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (as determined by CommScope in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the SECforegoing, if it were subject (i) neither CommScope nor the Issuer shall be required to furnish any information, certificates or reports required by (A) Section 13 302, Section 404 or 15(dSection 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the Exchange Act. SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (ii) the information and reports referred to in Section 3.2(a) will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information, including, without limitation, in respect of the Transactions, is required to be provided by CommScope, CommScope may provide only pro forma revenues, net income, income before extraordinary items and the cumulative effect of accounting changes, EBITDA, Adjusted EBITDA (as such term is defined in the Offering Memorandum), senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the information and reports referred to in Section 3.2(a) shall not be required to present compensation or beneficial ownership information and (v) the information and reports referred to in Section 3.2(a) shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K.
(c) For so long as CommScope has designated certain of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by Section 3.2(a) will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, or in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, of the financial condition and results of operations of CommScope and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of CommScope.
(d) In addition, to the extent not satisfied by the foregoing, CommScope and the Company will Issuer agree that, for so long as any Notes are outstanding, it will CommScope or the Issuer shall furnish to Holders and to securities analysts and prospective investorsHolders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of CommScope, those of (i) any predecessor or successor of CommScope or any entity meeting the requirements of clauses (ii) or (iii) of this Section 3.2(e), (ii) any Wholly Owned Subsidiary of CommScope that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of CommScope and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent company of CommScope; provided that, if the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating so furnished relates to such parent; providedQualified Reporting Subsidiary of CommScope or such direct or indirect parent of CommScope, however that the same is accompanied by consolidating information information, which may be posted to the website of CommScope or the Issuer or on a non-public, password-protected website maintained by CommScope or the Issuer or a third party, that explains in reasonable detail the differences between the information relating to such parentQualified Reporting Subsidiary or such parent entity (as the case may be), on the one hand, and the information relating to the Company CommScope and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cf) Notwithstanding The Issuer will be deemed to have satisfied the foregoinginformation and reporting requirements of Section 3.2(a) if (i) CommScope or any Qualified Reporting Subsidiary of CommScope or any direct or indirect parent of CommScope has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC via XXXXX to the extent it is otherwise provided to Holders pursuant to this covenant) with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and that are publicly available or (ii) with respect to the Holders only, CommScope or any Qualified Reporting Subsidiary or any parent entity has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2.
(g) So long as Notes are outstanding, CommScope shall also:
(i) promptly after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(i) and (ii), hold a conference call to discuss such reports and the results of operations for the relevant reporting period; and
(ii) post to the website of CommScope or the Issuer, announce by press release or on a non-public, password-protected website maintained by CommScope, the requirements Issuer or a third party, which will require a confidentiality acknowledgment (but not restrict the recipients of this Section 4.03 shall be deemed satisfied such information from trading securities of CommScope or its affiliates), prior to the commencement date of the Exchange Offer conference call required to be held in accordance with Section 3.2(g)(i), the time and date of such conference call and either all information necessary to access the call or informing the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of an investment in the Notes) how they can obtain such information, including, without limitation, the applicable password or other login information.
(h) Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this covenant will be required to provide its email address, employer name and other information reasonably requested by CommScope or the effectiveness of Issuer and represent to CommScope or the Shelf Registration Statement byIssuer (to CommScope’s or the Issuer’s reasonable good faith satisfaction) that:
(1i) the filing with the SEC it is a Holder, a beneficial owner of the Exchange Offer Registration Statement or Shelf Registration StatementNotes, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information bona fide prospective investor in the Offering Memorandum.Notes, a bona fide market maker in the Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of investment in the Notes;
Appears in 1 contract
Reports and Other Information. So long as any Securities are outstanding:
(ai) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to provide the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, Securities with annual consolidated financial statements audited by an internationally recognized firm of independent public accountants within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 120 days after the end of each the Company’s fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information unaudited quarterly financial statements (including applicable certifications) that a balance sheet, statement of operations and statement of cash flows for the Company would be required to include in Form 10fiscal quarter and year-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20to-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes date period then ended and the Trustee as if such report had been made on Form 10corresponding fiscal quarter and year-K and provided to to-date period from the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2prior year) within 45 60 days after of the end of each of the first three fiscal quarters of each fiscal year year. Such annual and quarterly financial statements will (or i) be prepared in accordance with GAAP (with the exception of the absence of year-end adjustments and footnotes in the case of quarterly financial statements) and (ii) be accompanied by a “management discussion and analysis” of the results of operations of the Company and its Subsidiaries on a consolidated basis for the periods presented in a level of detail comparable (in the reasonable judgment of the Company) to the management discussion and analysis of the results of operations of the Company contained in the Offering Memorandum. Unless otherwise publicly available, such shorter period financial statements and related discussion shall be made available to Holders of Securities and prospective investors in the Securities by posting on a password protected website accessible by all such persons, which shall announce when such items have been posted (it being understood that the Company may require a certification and customary non-disclosure agreement to access such site); and
(ii) the Company shall furnish to the Trustee and Holders of Securities all information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in filings with the SEC on Form 108-Q K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02 and 5.01 (or any successor form) but excluding, for the avoidance of doubt, financial statements and exhibits that would be required pursuant to Item 9.01 of Form 8-K, other than financial statements and pro forma financial information required pursuant to clauses (a) and (b) of Item 9.01 of Form 8-K (in each case relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K) to the extent available (as determined by the Company in good faith, which determination shall be conclusive)) if the Company were had been a U.S. Filerreporting company under the Exchange Act; provided, however, that no such report will be required to be furnished if the financial statements included therein Company determines in its good faith judgment (which determination shall be prepared conclusive) that such event is not material to Holders of the Securities or the business, assets, operations, financial position or prospects of the Company and its Subsidiaries, taken as a whole, or if the Company determines in accordance with GAAPits good faith judgment (which determination shall be conclusive) that such disclosure would otherwise cause material competitive or other material harm to the business, assets, operations, financial position or prospects of the Company and its Subsidiaries, taken as a whole; provided that such non-disclosure shall be limited only to those specific provisions that would cause material competitive or other material harm and not the occurrence of the event itself; provided, further, that if no such report will be required to include a summary of the terms of any quarterly report is filed on Form 6-Kemployment or compensatory arrangement, agreement, plan or understanding between the certifications required by Form 10-QCompany (or any of its Subsidiaries) and any director, but not Form 6-Kmanager or executive officer, of the Company (or any of its Subsidiaries). All information to be furnished pursuant to this clause (ii) shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) furnished within the time periods specified on Form 8in the SEC’s rules and regulations for non-K after accelerated filer reporting companies under the occurrence of an event required Exchange Act. Information to be therein reported, such other reports furnished pursuant to this clause (ii) shall be made by posting on the appropriate form for reporting current events containing substantially the same information required website referred to be contained in Form 8-K clause (or i) above. So long as any successor form) that would be required if the Company were a U.S. Filer; providedSecurities are outstanding, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not also issue a notification (which can be so obligated a notification through the website described above or by email to file such reports with registered Holders of Securities) upon the SEC if posting of the SEC does not permit such filing, in which event the information required by clauses (i) and (ii) above. The Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and shall hold a conference call for the Holders of the Notes, Securities to discuss such financial information described in each case within 15 clause (i) above no later than 10 calendar days after posting the time annual financial information and the quarterly financial information described in clause (i) above. The Company would will issue a notification (which can be required a notification through the website described above or by email to file such information with the SEC, if it were subject to Section 13 or 15(dregistered Holders of Securities) of the Exchange Actany such conference call at least three Business Days in advance. In addition, to the extent not satisfied by the foregoinginformation referred to in the first paragraph above, the Company will agree that, for so long as any Notes are outstanding, it will shall furnish to Holders and to of Securities, securities analysts and prospective investorsinvestors in the Securities, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company . Delivery of the Company becomes a guarantor of the Notessuch reports, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating and documents to the Company by furnishing financial information relating Trustee pursuant to such parent; provided, however that the same foregoing is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one handfor informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information relating contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under this Indenture (as to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to which the Trustee within 15 days of the time periods after the Company would have been required is entitled to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumrely upon certificates).
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject Subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECimmediately following sentence, the Company shall file with the SEC the annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K that the Company would have been required to file with the SEC pursuant to Sections 13(a) or 15(d) of the Exchange Act if the Company were so subject on or prior to the respective dates by which the Company would have been required to file such reports if the Company were so subject (assuming the Company is a non-accelerated filer), taking into account any permitted extensions of time under the Exchange Act (the “Required Filing Dates”), and shall make such reports available to the Trustee and Holders of the Notes (without exhibits), without cost to any each Holder, within 15 days after the Company it files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such obligation to make such reports may be furnished, rather than filed, available to the extent U.S. Filers Trustee and the Holders will be satisfied if such reports are permitted to do so by filed through and are available on the SEC; and
’s Electronic Data Gathering, Analysis, and Retrieval Filing System (4) or any other informationsuccessor thereto). Notwithstanding the foregoing, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will shall make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the NotesHolders, in each case within 15 days after the time the Company would be required to file Required Filing Dates by posting such information with to a publicly accessible website on the SEC, if it were subject to Section 13 or 15(d) of Company’s website. The Company and the Exchange Act. In addition, Guarantors shall make available to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investorsinvestors in the Securities, upon their requestthe request of such Holders, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In Act so long as the event that any direct or indirect parent company of Securities are not freely transferable under the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating Securities Act to the Company extent not satisfied by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Samples: Indenture (Lin Tv Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company shall file with the SEC (and make available provide to the Trustee and Holders and, upon request, to the Holders, a copy of all of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from following information and after the Issue Date,reports:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would as may be applicable to permitted by the SEC if the Company if it were a U.S. company that is not a foreign private issuer and that is then subject to the SEC reporting requirements of Section 13 or 15(d) as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the Exchange Act (Act), annual audited financial statements for such fiscal year including a “U.S. Filer”) as Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the SEC may periods presented and a report on the annual financial statements by the Company’s independent registered public accounting firm (all of the foregoing financial information to be prepared on a basis substantially consistent with that which would be included in the future prescribe), an annual report Annual Report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially filed with the same information (including applicable certifications) that SEC by the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes prepare and the Trustee as if file such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;form),
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period as may be permitted by the SEC if the Company were then subject to SEC reporting requirements as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the Exchange Act), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with that which would be applicable to the Company if it were included in a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Quarterly Report on Form 10-Q filed with the SEC by the Company (or any successor if the Company were required to prepare and file such form), and
(iii) within the time period specified for filing current reports on Form 8-K by the SEC, current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports for any of the following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of the Company, an Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of the Company or any Restricted Subsidiary having a principal amount in excess of $100.0 million, (d) a change in the Company’s certifying independent auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of the Company, (f) resignation of a director on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions, (j) entry into material agreements, (k) entry into material direct financial obligations and (l) historical financial statements (other than pro forma financial statements, the provision of which shall be governed by the next succeeding paragraph) of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K to the extent and in the form available to the Company (as determined by the Company in good faith) if the Company were a U.S. Filerdomestic reporting company under the Exchange Act); providedprovided that no such current report will be required to be furnished if the Company determines in its good faith judgment that such event is not material to Holders or to the business, assets, operations, financial position or prospects of the Company and its Restricted Subsidiaries, taken as a whole, or if the Company determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial statements included therein shall be prepared in accordance with GAAPposition or prospects of the Company and its Restricted Subsidiaries, taken as a whole; provided, further, that if any quarterly report is filed on Form 6such non-K, the certifications required by Form 10-Q, but not Form 6-K, disclosure shall be made limited only to the Holders of the Notes those specific provisions that would cause material competitive harm and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after not the occurrence of an the event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Fileritself; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and upon request, Holders, the Holders of Issuers or the Company shall, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (A) posting to the website of the Company (or any direct or indirect parent of the Company or of a Restricted Subsidiary) or on a non-public, password-protected website maintained by the Company (or any direct or indirect parent of the Company or of a Restricted Subsidiary) or a third party, in each case case, within 15 days after the time the Company would be required to file provide such information pursuant to clause (i), (ii) or (iii) above, as applicable, or (B) otherwise providing substantially comparable availability of such reports (as determined by the Company in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the foregoing, (i) the Issuers and the Company shall not be required to furnish any information, certificates or reports required by (A) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC with respect to financial measures contained therein, (ii) the information and reports referred to in Section 3.2(a) will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information is required to be provided by the Company, the Company may provide only pro forma revenues, net income, EBITDA, Adjusted EBITDA (as such term is defined in the Offering Memorandum), senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the information and reports referred to in Section 3.2(a) shall not be required to present compensation or beneficial ownership information and (v) the information and reports referred to in Section 3.2(a) shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K.
(c) For so long as the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then substantially concurrently with the SEC, if it were subject to Section 13 or 15(d) provision of the Exchange Actquarterly and annual financial information required by Section 3.2(a), the Company will provide the Holders with the percentage of the Adjusted EBITDA (presented on a basis substantially consistent with the presentation of Adjusted EBITDA in the Offering Memorandum) that the Unrestricted Subsidiaries contribute to such Adjusted EBITDA for the Company and its Subsidiaries for the applicable period; provided, however, that no such information shall be required to be provided to the extent the Company determines in its reasonable judgment that any such Unrestricted Subsidiaries are not material to the operations or performance of the Company and its Subsidiaries as a whole. Such information need not be provided in the financial report itself and may be separately provided to Holders via a non-public, password protected website maintained by the Company or a third party in accordance with Section 3.2(i).
(d) In addition, to the extent not satisfied by the foregoing, the Issuers and the Company will agree that, for so long as any Notes are outstanding, it will the Issuers or the Company shall furnish to Holders and to securities analysts and prospective investorsHolders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Company, those of (i) any predecessor or successor of the Company or any entity meeting the requirements of clauses (ii) or (iii) of this Section 3.2(e), (ii) any Wholly Owned Subsidiary of the Company that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Company and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent company of the Company; provided that, if the financial information so furnished relates to such Qualified Reporting Subsidiary of the Company becomes a guarantor or such direct or indirect parent of the NotesCompany, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information information, which may be posted to the website of the Company (or any direct or indirect parent of the Company or of a Restricted Subsidiary) on a non-public, password-protected website maintained by the Company or a third party, that explains in reasonable detail the differences between the information relating to such parentQualified Reporting Subsidiary or such parent entity (as the case may be), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cf) Notwithstanding The Company will be deemed to have satisfied the foregoinginformation and reporting requirements of Section 3.2(a) if (i) the Company or any Qualified Reporting Subsidiary of the Company or any direct or indirect parent of the Company has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC via XXXXX to the extent it is otherwise provided to Holders pursuant to this covenant) with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and that are publicly available or (ii) with respect to the Holders only, the Company or any Qualified Reporting Subsidiary or any parent has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2.
(g) To the extent any such reports referred to in the first paragraph of this covenant 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 it obligations with respect thereto at such time and any Default or Event of Default with respect thereto shall be deemed to have been cured.
(h) So long as Notes are outstanding, the Company shall also:
(i) promptly after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(i) and (ii), hold a conference call to discuss such reports and the results of operations for the relevant reporting period; provided, however, that the Company will be deemed to have satisfied the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement clause (i) if any Qualified Reporting Subsidiary or any direct or indirect parent of the Exchange Offer or Company holds a conference call to discuss such reports and results of operations for the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.relevant reporting period; and
Appears in 1 contract
Samples: Indenture (PPD, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report reports on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall (a) file with the SEC (unless the SEC will not accept such filing), and make available (b) deliver to the Trustee and and, upon written request, the registered Holders of the Notes (without exhibits)Notes, without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,:
(1) within 90 days after the end of each fiscal year time periods specified by the Exchange Act (including all applicable extension periods), an annual report on Form 10-K (or any successor or comparable form) containing the information required to be contained therein in all material respects (or required in such shorter period successor or comparable form);
(2) within the time periods specified by the Exchange Act (including all applicable extension periods), a quarterly report on Form 10-Q (or any successor or comparable form); and
(3) all current reports that would be applicable required to be filed with the SEC on Form 8-K (or any successor or comparable form).
(b) In the event that the Company is not permitted to file such reports with the SEC pursuant to the Exchange Act, the Company shall nevertheless deliver to the Trustee and make available such Exchange Act reports to the Holders of the Notes as if it the Company were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified by the Exchange Act (including all applicable extension periods), which requirement may be satisfied by posting such information on Form 8its website, on Intralinks or any comparable password-K protected online data system which will require a confidentiality acknowledgment (with a copy to the Trustee). The Company will hold quarterly conference calls (for the avoidance of doubt, the Company’s quarterly earnings call shall satisfy such requirement) for the Holders and securities analysts to discuss such financial information for the previous reporting period no later than ten Business Days after distribution of such financial information.
(c) The Company shall deliver an Officer’s Certificate to the occurrence Trustee certifying compliance with the requirements of an event Section 4.18 (including setting forth what the Consolidated Total Debt Ratio was for the relevant period) on each date that it is required to deliver the reports required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K delivered by clauses (or any successor forma) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; andand (b) of this Section 4.03.
(4d) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree thatshall, for so long as any Notes are outstanding, it will furnish make available to the Holders of the Notes and to securities analysts 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 the Notes are not freely transferable under the Securities Act.
(be) In Delivery of such reports and information to the event that Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(f) The Company will be deemed to have satisfied the information and reporting requirements of this Section 4.03 if the Company (or any direct or indirect parent company of the Company becomes a guarantor of Company) has filed reports or registration statements containing such information with the NotesSEC via the SEC’s Electronic Data Gathering, Analysis and Retrieval system (or any successor system) within the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to time periods specified above and such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handreports are publicly available.
(cg) Notwithstanding the foregoing, the requirements of such reports and other information required to be provided pursuant to this Section 4.03 shall be deemed satisfied prior to the commencement may be, rather than those of the Exchange Offer Company, those of any direct or the effectiveness indirect parent of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCompany.
Appears in 1 contract
Samples: Indenture (Maxar Technologies Inc.)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available Issuer will deliver to the Trustee and Holders of the Notes (without exhibits)registered Holders, without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
, within the time periods specified in the SEC’s rules and regulations (1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were for a U.S. company filer that is not a foreign private issuer an “accelerated filer,” as defined in such rules and regulations (provided that is subject to such time period shall be extended for (i) the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report first Annual Report on Form 10-K following the Issue Date until the date that is 120 days after the Issuer’s fiscal year end and (or any successor formii) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made first Quarterly Report on Form 10-K and provided to Q following the Trustee and made available to Holders, in lieu of being filed with Issue Date until the SEC;
(2) within 45 date that is 60 days after the end of each of the first three Issuer’s fiscal quarters of each fiscal year quarter end):
(or such shorter period 1) all quarterly and annual financial information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form a filing with the SEC on Forms 10-K and 10-Q if the Issuer were required to filed such reports, 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 independent registered public accounting firm; and
(or any successor form2) all current reports that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall to be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified SEC on Form 8-K after if the occurrence of an event Issuer were required to be therein reported, filed such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SECreports; in each case, case in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company Issuer shall not be so obligated to file such reports with the SEC if at any time prior to becoming subject to Section 13 or 15(d) of the SEC does not permit such filingExchange Act, in which event event, the Company Issuer will make available such information to prospective purchasers of Notesthe Notes (by posting such reports and information on the primary investor relations website of the Issuer), in addition to providing such information to the Trustee and the Holders Holders.
(b) If the Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then the quarterly and annual financial information required by Section 3.11(a) shall include a reasonably detailed presentation, as determined in good faith by senior management of the NotesIssuer, in each case within 15 days after either on the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) face of the Exchange Act. In addition, financial statements or in the footnotes to the extent not satisfied by financial statements and in management’s discussion and analysis of financial condition and results of operations, of the foregoing, financial condition and results of operations of the Company will agree that, for so long as any Notes are outstanding, it will furnish Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(c) The Issuer and the Guarantors shall make available to the Holders and to securities analysts and prospective investors, upon their requestthe 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.
(bd) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under All financial information provided pursuant to this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is 3.11 will be accompanied by consolidating financial information that explains in reasonable detail the differences between the financial information relating to such parentthe Unrestricted Subsidiaries, on the one hand, and the information relating to the Company Issuer and its the Restricted Subsidiaries on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding The filing requirements set forth above for the foregoing, applicable period may be satisfied by the requirements of this Section 4.03 shall be deemed satisfied Issuer prior to the commencement of the Exchange Offer exchange offer or the effectiveness of the Shelf shelf registration statement as contemplated under the Registration Statement by:
(1) Rights Agreement by the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statementexchange 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, or.
(2f) posting on its website If the Issuer has electronically filed with the Securities and Exchange Commission’s Next-Generation XXXXX system (or providing any successor system), the reports described in above (including any consolidating information required by clause (d), unless otherwise provided to the Trustee within 15 days and the Holders), the Issuer shall be deemed to have satisfied the requirements of this Section 3.11.
(g) The Issuer will also hold quarterly conference calls for the Holders of the Notes to discuss financial information for the previous quarter. The conference call will be following the last day of each fiscal quarter of the Issuer and not later than ten Business Days from the time periods after that the Company would have been required to file annual and interim reports with the SEC, Issuer distributes the financial information as set forth in clauses (including a) and (b) of this Section 3.11. No fewer than two days prior to the conference call, the Issuer shall issue a “Management’s Discussion press release announcing the time and Analysis date of Financial Condition such conference call and Results providing instructions for Holders, securities analysts and prospective investors to obtain access to such call.
(h) Until the consummation of Operations” section) that would the Exchange Offer, nothing in this Section 3.11 shall be required construed so as to be included require the Issuer to include in such reports, subject to exceptions consistent with the presentation reports any information specified in Rules 3-10 or 3-16 of financial information in the Offering Memorandum.Regulation S-X.
Appears in 1 contract
Samples: Indenture (Bankrate, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Company may not be subject Issuer shall furnish to the reporting requirements of Section 13 or 15(d) of Holders requesting such reports and the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,Trustee:
(1) within 90 days after the end of each fiscal year (or such shorter longer period as may be permitted by the SEC if the Issuer were then subject to such SEC reporting requirements as a non-accelerated filer), annual reports of the Issuer containing substantially all of the financial information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K on the Issue Date (or any successor formbut only to the extent similar information is included herein), and will include (a) or Form 20-F “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (or any successor formb) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the audited financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders GAAP and (c) a presentation of Adjusted EBITDA of the Notes Issuer and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed its Subsidiaries consistent with the SEC;presentation thereof in the Offering Circular,
(2) within 45 days after the end of each of the first three fiscal quarters (other than for the fiscal quarter ended June 25, 2016, which shall be 60 days after the end of such fiscal quarter) of each fiscal year (or such shorter longer period as may be permitted by the SEC if the Issuer were then subject to such SEC reporting requirements as a non-accelerated filer), quarterly reports of the Issuer containing substantially all of the financial information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a Quarterly Report on Form 10-Q on the Issue Date under the Exchange Act if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included herein), and will include (a) “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (b) unaudited quarterly financial statements prepared in accordance with GAAP and reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor formprovision) and (c) a presentation of Adjusted EBITDA of the Issuer and its Subsidiaries consistent with the presentation thereof in the Offering Circular and derived from such financial statements, and
(3) within 5 Business Days after the occurrence of each event that would have been required to be reported in a Current Report on Form 8-K under the Exchange Act if the Issuer had been a reporting company under the Exchange Act (or such later time period provided for in such Form 8-K), current reports containing substantially all of the information that would be required to be filed in a Current Report on Form 8-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01 and 5.02 (other than compensation information) and Item 9.01 (only to the extent relating to any of the foregoing) of Form 8-K if the Company were Issuer had been a U.S. Filerreporting company under the Exchange Act; provided, however, that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial statements included therein position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided that such non-disclosure shall be prepared in accordance with GAAPlimited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself; provided, furtherhowever, that if any quarterly report is filed on Form 6-K(i) in each of clauses (1), (2) and (3) above, the certifications Issuer will not be required to furnish any information, certificates or reports required by Form 10(a) Section 302, Section 404 or Section 906 of the Xxxxxxxx-QXxxxx Act of 2002, but not Form 6or (b) Items 10(e), 307, 308 or 402 of Regulation S-KK and (ii) such reports required by clauses (1), (2) and (3), shall not be made required to contain separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC; provided that annual and quarterly reports will include summary guarantor and non-guarantor information consistent with that disclosed in the Offering Circular.
(b) Notwithstanding the foregoing, the Issuer shall be deemed to have furnished such reports referred to above to the Trustee and the Holders if the Issuer or any direct or indirect parent of the Issuer has filed such reports with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and such reports are publicly available or (b) with respect to the Holders of the Notes only, the Issuer or such parent entity has made such reports available electronically and has notified the Holders of the Notes of such (including by posting to a non-public, password-protected website as provided above) pursuant to this covenant, it being understood that the Trustee as if shall not be responsible for determining whether such report had filings have been made made.
(c) At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either taken together or individually, constitute a Significant Subsidiary, then the quarterly and annual reports required by Section 3.2(a) will include a reasonably detailed presentation, either on Form 10-Q the face of the financial statements or in the footnotes thereto, and provided in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, 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.
(d) The Issuer will make available such information electronically by posting such information to a secure website or distributing such information via electronic mail and, upon receipt of a request for access to such website or such information via electronic mail, shall promptly grant access to such website or distribute such information via electronic mail to any of the following:
(1) any Noteholder;
(2) any beneficial owner of the Notes that provides its electronic mail address to the Trustee Issuer and made available to Holders, in lieu certifies that it is a beneficial owner of being filed with the SECNotes;
(3) within any prospective investor in the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) Notes that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, provides its electronic mail address to the extent Issuer and certifies that it is (i) a prospective investor in the Notes and (ii) a Qualified Institutional Buyer (as defined in the Securities Act) or a non-U.S. Filers are permitted to do so by person (as defined in Regulation S under the SECSecurities Act); and
(4) any other informationmarket maker or securities analyst that provides its electronic mail address to the Issuer and certifies that it is or intends to be a market maker with respect to the Notes or to provide an analysis of investment in the Notes, documents and other reports that as the Company would case may be. Any person who requests or receives such financial information from the Issuer will be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, represent to the extent U.S. Filers are permitted Issuer or seeks to do so participate in any conference calls required by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information this Section 3.2 (to the Trustee and the Holders Issuer’s reasonable good faith satisfaction) that:
(1) it is a Holder of the Notes, a beneficial owner of the Notes, a prospective investor in the Notes, a market maker or a securities analyst;
(2) it will not use the information in violation of applicable securities laws or regulations;
(3) it will not communicate the information to any Person; provided that high yield research analysts shall be permitted to publish research reports in the ordinary course of business; and
(4) it (a) will not use such information in any manner intended to compete with the business of the Issuer and its Subsidiaries and (b) is not a Person (which includes such Person’s Affiliates) that (i) is principally engaged in a Similar Business or (ii) derives a significant portion of its revenues from operating or owning a Similar Business.
(e) Within 10 Business Days after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(1) and (2) the Issuer would hold a conference call to discuss such reports and the results of operations for the relevant reporting period. Each notice for each case within 15 days after conference call may be given electronically by posting to a secure website or distribution via electronic mail and shall be issued no fewer than three Business Days prior to the date of the conference call required to be held in accordance with this paragraph and shall include the time and date of such conference call and either include all information necessary to access the Company would call or direct holders, prospective investors, broker-dealers, securities analysts or market makers to contact the appropriate person at the Issuer to obtain such information; provided that participation in such conference call may be required limited to file such information with persons that meet the SEC, if it were subject to Section 13 or 15(drequirements and make the representations set forth in the two preceding paragraphs.
(f) of the Exchange Act. In addition, addition to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will Issuer shall furnish to Holders and to Holders, prospective investors, broker-dealers, securities analysts and prospective investorsmarket makers, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(bg) In the event that any direct or indirect parent company Delivery of the Company becomes a guarantor of the Notesreports, the Company may satisfy its obligations information and documents (including without limitation reports contemplated under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c3.2) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days 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 time periods after Issuer’s compliance with any of its covenants hereunder (as to which the Company would have been required Trustee is entitled to file annual and interim reports with the SEC, the financial information (including a “Managementrely exclusively on Officer’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCertificates).
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Holdings shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (other than compensation information), 5.03(b) and Item 9.01 (only to the extent relating to any of the foregoing) of Form 8-K if Holdings had been a reporting company under the Exchange Act; provided, however, that no such current reports (or Items thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be provided (or included) if Holdings determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of Holdings and its Restricted Subsidiaries, taken as a whole. In addition to providing such information to the Trustee, Holdings shall make available to the holders, prospective investors, market makers affiliated with the initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) or (iii), by posting such information to its website (or any successor formof Holdings’ parent companies) if or on IntraLinks or any comparable online data system or website. Notwithstanding the Company were a U.S. Filer; providedforegoing, (A) Holdings will not be required to furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial statements included therein shall measures contained therein, (B) such reports will not be prepared in accordance with GAAP; providedrequired to contain the separate financial information for Subsidiary Guarantors contemplated by Rule 3-09, furtherRule 3-10 or Rule 3-16 of Regulation S-X, that if or include any annual report is filed on Form 20-F, the exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; provided, that or related rules under Regulation S-K and (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in this offering memorandum and shall not be required to file with the SEC if it were a U.S. Filer; providedpresent compensation or beneficial ownership information.
(b) The financial statements, that such reports information and other documents required to be provided as described above, may be furnishedthose of (i) Holdings or (ii) any direct or indirect parent of Holdings (any such entity, rather than fileda “Reporting Entity”), so long as in the case of (ii) such direct or indirect parent of Holdings shall not conduct, transact or otherwise engage, or commit to the extent U.S. Filers are permitted to do so by the SEC; in each caseconduct, transact or otherwise engage, in a manner that complies in any business or operations other than its direct or indirect ownership of all material respects with of the requirements specified in such formEquity Interests in, and its management of Holdings; providedprovided that, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit financial information so furnished relates to such filingdirect or indirect parent of Holdings, in which event the Company same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to Holdings and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Holdings will make available such information available to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesHoldings shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3 2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, Holdings will be deemed to have delivered such reports and information referred to in this Section 4.02 to the Trustee and the holders if Holdings or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided to the Trustee and the holders on Holdings’ website (or that of any of Holdings’ parent companies). The Trustee shall have no obligation to monitor whether Holdings (or any of Holding’s parent companies) posts such reports, subject information and documents on its website or the SEC’s XXXXX service, or collect any such information from Holding’s (or any of Holding’s parent companies) website or the SEC’s XXXXX service. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the transactions contemplated hereunder.
(e) Holdings will also hold quarterly conference calls for all holders of the Notes and securities analysts to exceptions consistent with the presentation of discuss such financial information in no later than five Business Days after the Offering Memorandumdistribution of such information required by clauses (i) or (ii) of Section 4.02(a) and prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Reports and Other Information. (a) Notwithstanding that Holdings, on behalf of itself and each of the Company may not be subject Borrowers, shall provide to the reporting Agent as soon as available, and in any event within thirty (30) days after the close of each month of each fiscal year of Holdings, Consolidated balance sheets of Holdings as of the end of such month and Consolidated and consolidating statements of income and statements of cash flow of Holdings for such month and for the period commencing at the end of the previous fiscal year and ending with the end of such month, certified by the chief financial officer, principal accounting officer or chief executive officer of Holdings to the effect that such financial statements, while not examined by independent public accountants, reflect in his opinion and in the opinion of senior management of Holdings, all adjustments necessary to present fairly the Consolidated financial position of Holdings as at the end of such month and the results of its operations for the month then ended in conformity with GAAP consistently applied, subject only to year-end and audit adjustments, which statements shall be delivered at the end of each month, together with a certificate of such officer stating that as of the date of such certificate that, to the best of his knowledge, after reasonable inquiry, no event has occurred which constitutes an Event of Default or would constitute an Event of Default with the giving of notice or the lapse of time or both, or, if an Event of Default or such an event has occurred and is continuing, a statement as to the nature thereof and the action which Holdings has taken or proposes to take with respect thereto, and further setting out in such detail as is reasonably required by the Lenders' calculations demonstrating Borrowers' compliance with the requirements of Section 13 or 15(dArticle 7 and Sections 8.8 and 8.11 hereof.
(b) Holdings, on behalf of itself and each of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant Borrowers, shall provide to rules and regulations promulgated by the Agent a copy of its Form 10-Q within 5 days after it is filed with the SEC, or if Holdings is not required to file a Form 10-Q, then Holdings, on behalf of itself and each of the Company Borrowers, shall file with the SEC (and make available provide to the Trustee Agent, as soon as available, and Holders of the Notes in any event within forty-five (without exhibits), without cost to any Holder, within 15 45) days after the Company files them close of each quarter of each fiscal year of Borrowers, quarterly Consolidated financial statements for such year for Holdings and each of its subsidiaries and divisions, including therein a copy of the Consolidated balance sheets of Holdings as of the end of such fiscal year and consolidated and consolidating statements of income and statements of cash flow and statements of shareholders' equity of Holdings and its divisions and Subsidiaries, certified without qualification by the Accountants, all adjustments necessary to present fairly the financial position of Holdings as at the end of such quarter and the results of their respective operations for the quarter then ended in conformity with GAAP consistently applied, subject only to year-end and audit adjustments, which statements shall be delivered at the end of each fiscal quarter. A Compliance Certificate of the chief financial officer, principal accounting officer or chief executive officer of Holdings shall be included with such reports stating that as of the date of such certificate, to the best of his knowledge, after reasonable inquiry, no event has occurred which constitutes a Default or an Event of Default or would constitute a Default or an Event of Default with the giving of notice or the lapse of time or both, or, if a Default or an Event of Default or such an event has occurred and is continuing, a statement as to the nature thereof and the action which the Borrowers have taken or proposes to take with respect thereto, and further setting out in such detail as is reasonably required by the Lenders each Borrower's compliance with the requirements of Article 7 and Sections 8.8 and 8.11 hereof.
(c) Holdings, on behalf of itself and each of the Borrowers, shall provide to the Agent a copy of its Form 10-K within five (5) days after it is filed with the SEC, or if Holdings is not required to file a Form 10-K, then Holdings, on behalf of itself and each of the Borrowers, shall provide to the Agent, as soon as available and in any event within ninety (90) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were of Holdings a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) copy of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included for such year for Holdings, including therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders a copy of the Notes and the Trustee Consolidated balance sheet of Holdings as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of such fiscal year and consolidated and consolidating statements of income and statements of cash flow and statements of shareholders' equity of Holdings and its respective divisions and Subsidiaries, certified without qualification by the Accountants. A Compliance Certificate of the chief financial officer, principal accounting officer or chief executive officer of Holdings shall be included with such reports stating that, as of the date of such certificate, to the best of his knowledge and after reasonable inquiry, no event has occurred which constitutes a Default or an Event of Default, or, if a Default or an Event of Default or such an event has occurred and is continuing, a statement as to the nature thereof and the action which Borrowers have taken or proposes to take with respect thereto and further setting out in such detail as is reasonably required by the Lenders each Borrowers' compliance with the requirements of Article 7 and Sections 8.8 and 8.11 hereof.
(d) Together with each delivery of financial statements of Holdings pursuant to Sections 6.1(a), 6.1(b), or 6.1(c), Holdings, on behalf of itself and each of the first three Borrowers, will deliver a management report: (1) describing the Consolidated operations and financial condition of Holdings and its Subsidiaries and divisions for the period then ended and the portion of the current fiscal quarters year then elapsed (or for the fiscal year then ended in the case of year-end financials). The information above shall be presented in reasonable detail and shall be certified by the chief financial officer or controller of Holdings to the effect that such information fairly presents the Consolidated results of operations and financial condition of Holdings and its subsidiaries and divisions as at the dates and for the periods indicated.
(e) Holdings, on behalf of itself and each of the Borrowers, shall provide, periodically at the request of the Agent or the Requisite Lenders and in any event no less frequently than the fifteenth (15th) day of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe)month beginning August 15, 1998, a report containing substantially with respect to the same information (including applicable certifications) required to be contained Eligible Inventory and Eligible Accounts included in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; providedBorrowing Base, which report shall indicate that the financial statements included therein shall be prepared information set forth in accordance with GAAP; provided, further, that if any quarterly report the most recent Borrowing Base Certificate delivered by Borrowers is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes accurate and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies complete in all material respects respects. Agent expects to conduct periodic field audits of each Borrower and a comprehensive field audit of such Borrower on a semi-annual basis. Each Borrower shall cooperate fully with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information Agent in the Offering Memorandumcompletion of each such audit.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Issuers shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Reporting Entity containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (a),(b) and (c) and Item 9.01(a) and (b) (only to the extent relating to any of the foregoing) of Form 8-K if the Reporting Entity had been a reporting company under the Exchange Act. In addition to providing such information to the Trustee, the Issuers shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) and (iii), by posting such information to its website (or the website of any successor formof the Company’s parent companies, including the Reporting Entity) if or on IntraLinks or any comparable online data system or website. If at any time the Company were or any direct or indirect parent of the Company has made a U.S. Filer; provided, that good faith determination to file a registration statement with the financial statements included therein shall be prepared in accordance SEC with GAAP; provided, further, that if any annual report is filed on Form 20-Frespect to an initial public offering of such entity’s Capital Stock, the Issuers will not be required to disclose any information or take any actions that, in the good faith view of the Company, would violate the securities laws or the SEC’s “gun jumping” rules. Notwithstanding the foregoing, (A) neither the Company nor another Reporting Entity will be required to deliver any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Sxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 309, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would or related rules under Regulation S-K and (C) such reports shall not be required to present compensation or beneficial ownership information.
(b) The financial statements, information and other documents required to be provided as described in this Section 4.02 may be those of (i) the Company and its Subsidiaries and the Affiliated Guarantors and their Subsidiaries (on a combined basis) or (ii) any direct or indirect parent of all of the Company and the Affiliated Guarantors (any such entity, a “Reporting Entity”), so long as in the case of clause (ii) such direct or indirect parent of the Company and Affiliated Guarantors shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any material business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of, the Affiliated Guarantors and the Company; provided that, if the financial information so delivered relates to such direct or indirect parent of the Company were and Affiliated Guarantors, the same is accompanied by a U.S. Filer; providedreasonably detailed description of the quantitative differences between the information relating to such parent, that such reports may be furnishedon the one hand, rather than filedand the information relating to each of the Affiliated Guarantors and the Company and its Subsidiaries on a standalone basis, on the other hand, together with consolidating financial statements of the foregoing for the applicable period. Notwithstanding any of the foregoing herein, to the extent U.S. Filers are permitted to do so by any of the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, Company’s parent companies is subject to the extent U.S. Filers are permitted to do so by reporting requirements under Section 13 or 15(d) of the SEC; in each caseExchange Act, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, described in addition to providing such information to this paragraph shall be included in the Trustee Form 10-K and the Holders Form 10-Q reports of the Notes, Reporting Entity described in each case within 15 days after the time the Company would be required to file such information Section 4.02(a)(i) and (ii) filed with the SEC.
(c) In addition, if the Issuers will make such information available to prospective investors upon request. The Issuers have agreed that, for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the extent not satisfied by SEC with certain information pursuant to Rule 12g3-2(b) of the foregoingExchange Act, the Company will agree that, for so long as any Notes are outstanding, it they will furnish to Holders the holders of the Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, the Issuers will be deemed to have delivered such reports and information referred to in this Section 4.02 to the holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Company or another Reporting Entity has filed such reports with the SEC via the EXXXX filing system (or any successor system) and such reports are publicly available. In addition, except as required by the last sentence of Section 4.02(b), the requirements of this Section 4.03 4.02 shall be deemed satisfied prior and the Issuers will be deemed to have delivered such reports and information referred to this Section 4.02 to the commencement Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the Exchange Offer or the effectiveness posting of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, reports and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity). The Trustee shall have no obligation to monitor whether the Issuers post such reports, subject to exceptions consistent information and documents on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity) or the SEC’s EXXXX service, or collect any such information from the Company’s (or any of the Company’s parent companies) website or the SEC’s EXXXX service.
(e) The Company will also hold quarterly conference calls, beginning with the presentation first full fiscal quarter ending after the Issue Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (i) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the information and the Trustee’s receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein, or determinable from information contained therein, including the Issuers’ compliance with any of its covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provision of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. In addition, the Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the Offering Memorandumtransactions contemplated hereunder, and the Trustee shall have no duty to participate in or monitor any conference calls.
Appears in 1 contract
Samples: Restructuring Support Agreement (Exela Technologies, Inc.)
Reports and Other Information. So long as any Notes are outstanding:
(a) Notwithstanding that the Company may not be subject Holdings shall furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,Trustee:
(1i) within 90 days after the end of each fiscal year of Holdings ending after the Issue Date (or such shorter longer period that would as may be applicable to permitted by the Company SEC and any successor thereto if it were a U.S. company that is not a foreign private issuer and that is Holdings was then subject to the such SEC reporting requirements of Section 13 or 15(d) as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the Exchange Act (Act), the consolidated financial statements of Holdings for such year prepared in accordance with GAAP, together with a report thereon by Holdings’ independent auditors, and a “U.S. Filer”) as the SEC may Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in the future prescribe), an annual report Annual Report on Form 10-K filed with the SEC by Holdings (or any successor if Holdings were required to prepare and file such form); it being understood that (x) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would Holdings shall not be required to include in Form 10any consolidating financial information with respect to Holdings, the Issuer, the Co-K (Issuer, any other Guarantor or any successor formother Affiliate of Holdings, or any separate financial statements or information for Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings and (y) if applicable, Holdings shall provide guarantor/non-guarantor financial data consistent with the Company were a U.S. Filer; provided, that guarantor/non-guarantor financial data presented in the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders “Summary—The Offering” section of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SECOffering Memorandum;
(2ii) within 45 days after the end of each of the first three fiscal quarters of in each fiscal year of Holdings (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may in and any successor thereto if Holdings was then subject to such SEC reporting requirements as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the future prescribeExchange Act), a report containing substantially beginning with the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if first such fiscal quarter ending after the Company were a U.S. Filer; providedIssue Date, that the condensed consolidated financial statements included therein shall be of Holdings for such quarter prepared in accordance with GAAP, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in a Quarterly Report on Form 10-Q filed with the SEC by Holdings (if Holdings were required to prepare and file such form); it being understood that (x) Holdings shall not be required to include any consolidating financial information with respect to Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings, or any separate financial statements or information for Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings and (y) if applicable, Holdings shall provide guarantor/non-guarantor financial data consistent with the guarantor/non-guarantor financial data presented in the “Summary—The Offering” section of the Offering Memorandum; and
(iii) information substantially similar to the information that would be required to be included in a Current Report on Form 8-K filed with the SEC by Holdings (if Holdings were required to prepare and file such form) pursuant to Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountants), Item 4.02 (Non Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant) or Items 5.02(b) and (c) (Departure of Directors or Certain Officers)(other than with respect to information otherwise required or contemplated by Item 402 or Regulation S-K promulgated by the SEC); Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers), of such form, within 10 days after the date of filing that would have been required for a current report on Form 8-K; provided, however, that no such information shall be required to include (x) any exhibits (except for agreements evidencing material Indebtedness) or (y) a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between Holdings (or any of its Subsidiaries) and any director, manager or executive officer of Holdings (or any of its Subsidiaries); and provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, no such information referenced under this clause (iii) shall be required to be made available or furnished if Holdings determines in its good faith judgment that such event is not material to the Holders of the Notes or the business, assets, operations or financial position of Holdings and its Restricted Subsidiaries, taken as a whole. Notwithstanding the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holdersforegoing, in lieu of being filed with the SEC;
(3A) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would Holdings will not be required to file with furnish any information, certificates or reports required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S K, (ii) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC if it were a U.S. Filer; providedwith respect to any non-generally accepted accounting principles financial measures contained therein, that or (iii) Rule 3-09 of Regulation S-X (including any successor provision), (B) such reports may information will not be furnished, rather than filed, required to contain the extent U.S. Filers are permitted to do so separate financial information for Subsidiaries contemplated by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in Rule 3-10 or Rule 3-16 of Regulation S-X (including any successor provision) and (C) such form; provided, however, that the Company information shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 present compensation or 15(d) of the Exchange Actbeneficial ownership information. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any the Notes are outstandingremain subject to this paragraph (a) and constitute “restricted securities” under Rule 144 under the Securities Act, it Holdings will furnish to Holders and to securities analysts thereof and prospective investorsinvestors in such Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) (as in effect on the Issue Date) under the Securities Act.
(b) In subject to clause (d) below, Holdings will make available such information and such reports (as well as the event details regarding the conference call described below) to any Holder and, upon request, to any beneficial owner of the Notes, in each case, by posting such information and reports on its website, on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information and reports readily available to any Holder, any prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information and reports as confidential or accesses such information and reports on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that Holdings shall post such information and reports thereon and make readily available any password or other login information to any such Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that Holdings may deny access to any competitively-sensitive information and reports otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of Holdings and its Subsidiaries to the extent that Holdings determines in good faith that the provision of such information and reports to such Person would be competitively harmful to Holdings and its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein). Holdings will hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the Notes) to discuss such financial information (including a customary Q&A session) no later than 10 business days after distribution of such financial information, it being agreed, for avoidance of any doubt, that Holdings’ customary quarterly earnings’ call shall satisfy this covenant.
(c) Notwithstanding clauses (a) or (b) above, the obligations in clauses (a)(i), (a)(ii) and (a)(iii) above may be satisfied with respect to financial information of Holdings and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent company of Holdings or (B) Holdings’ (or any direct or indirect parent thereof, as applicable) Form 10-K, 10-Q or 8-K as applicable filed with the Company becomes a guarantor of the NotesSEC, the Company may satisfy its obligations under this Section 4.03 provided that, with respect to financial information relating each of clauses (A) and (B) of this paragraph, to the Company by furnishing financial extent such information relating relates to a parent of Holdings, such parent; provided, however that the same information is accompanied by consolidating or other information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Holdings and the Company and its Restricted Subsidiaries on a standalone basis, on the other hand; provided further that if there are no material differences in such information, no such consolidating or other information shall be required.
(d) Holdings will be deemed to have furnished such information referred to above (including the immediately preceding clause (c)) Notwithstanding to the foregoingTrustee and the Holders if Holdings or any direct or indirect parent of Holdings has filed such information with the SEC via the XXXXX (or successor) filing system and such information is publicly available.
(e) To the extent any such reports referred to in paragraph (a) above is not so filed or furnished, as applicable, within the requirements time periods specified above and such reports are subsequently filed or furnished, as applicable, Holdings 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.
(f) Delivery of reports, information and documents to the Trustee under this Section 4.03 shall be deemed satisfied prior to are for informational purposes only and the commencement Trustee’s receipt of the Exchange Offer foregoing shall not constitute constructive or the effectiveness actual notice of the Shelf Registration Statement by:
any information contained therein or determinable from information contained therein, including Parent’s compliance with any of its covenants hereunder (1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing as to which the Trustee within 15 days of the time periods after the Company would have been required is entitled to file annual and interim reports with the SEC, the financial information (including a “Managementrely exclusively on Officer’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCertificates).
Appears in 1 contract
Samples: Indenture (GoDaddy Inc.)
Reports and Other Information. (a) Notwithstanding that the Company Designated Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, so long as any Notes are outstanding hereunder, the Company shall file Designated Parent will furnish to the Trustee and holders the following:
(i) within the time periods specified in the SEC’s rules and regulations for non-accelerated filers, all quarterly and annual financial information of the Designated Parent that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor comparable forms) if the Designated Parent were required to file such Forms; and
(ii) promptly from time to time after the occurrence of an event required to be therein reported (and in any event within the time periods specified in the SEC’s rules and regulations), current reports that would be required to be filed with the SEC on Form 8-K if the Designated Parent were required to file such reports; provided that such reports will not be required to contain the separate financial information for the Issuers or the Guarantors contemplated by Rule 3-10 under Regulation S-X promulgated by the SEC (or any successor provision). In addition to providing such information to the Trustee, the Designated Parent shall make available to the Trustee and Holders holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to clauses (without exhibits1) and (2) of this paragraph, by posting such information to its website or on IntraLinks or any comparable online data system or website, it being understood that the Trustee shall have no responsibility to determine if such information has been posted on any website.
(b) If the Designated Parent has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Designated Parent, then the annual and quarterly information required by clause (1) of the first paragraph of this covenant 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 Designated Parent and the Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(c) In the event that:
(i) any Excluded Parent Entity (together with its Subsidiaries other than the Designated Parent and its Subsidiaries), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after had consolidated net sales of less than 2.5% of the consolidated net sales of such Excluded Parent Entity and all of its Subsidiaries for the most recently ended four fiscal quarter period of such Excluded Parent Entity; and
(2) had total assets (excluding investment in subsidiaries, intercompany receivable, intercompany loan receivable, and any other item that would be eliminated in the consolidation of such Excluded Parent Entity’s consolidated financial statements) of less than 5.0% of the consolidated total assets of such Excluded Parent Entity and all of its Subsidiaries as of the end of each the most recently ended fiscal year quarter of such Excluded Parent Entity; or
(or ii) in connection with any reporting requirements described in clause (i) of Section 4.02(a), the Designated Parent delivers consolidating financial information that explains, in a reasonable level of detail, the differences between the information relating to such shorter period that would be applicable Excluded Parent Entity and its Subsidiaries other than the Designated Parent and its Subsidiaries, on the one hand, and the information relating to the Company if it were Designated Parent and its Subsidiaries on a U.S. company stand-alone basis, on the other hand, then such consolidated reporting at the level of such Excluded Parent Entity in a manner consistent with that is not a foreign private issuer and that described in clause (i) of Section 4.02(a) for the Designated Parent will satisfy the requirements of such clause. If any Excluded Parent Entity is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe)Act, an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required then reporting by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, Excluded Parent Entity in a manner consistent with that complies described in all material respects with clause (ii) of Section 4.02(a) for the Designated Parent will satisfy the requirements specified in of such form; providedclause.
(d) In addition, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company Designated Parent will make available such information available to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesDesignated Parent shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if Issue Date and for so long as any Notes remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(ce) Notwithstanding the foregoing, the requirements of Designated Parent will be deemed to have furnished the reports referred to in this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing 4.02 to the Trustee within 15 days of and the time periods after holders if the Company would have been required to file annual and interim Designated Parent (or the applicable Excluded Parent Entity) has filed such reports with (or furnished such reports to) the SECSEC via the XXXXX filing system and such reports are publicly available, it being understood that the financial Trustee shall have no responsibility to determine if such information has been posted on any website.
(including a “Management’s Discussion and Analysis f) Delivery of Financial Condition and Results of Operations” section) that would be required to be included in such any reports, subject information and documents to exceptions consistent the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof 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 under this Indenture (as to which the presentation of financial information in the Offering MemorandumTrustee is entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (Mallinckrodt PLC)
Reports and Other Information. (a) Notwithstanding that the Company Issuer may not be required to be or remain subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall Issuer will file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or unless such shorter period that would be applicable to the Company if it were a U.S. company that filing is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of permitted under the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) ), so long as any other Notes are Outstanding, the annual reports, information, documents and other reports that the Company would be Issuer is required to file with the SEC pursuant to such Section 13 (a) or 15(d) or would be so required to file if it the Issuer were a U.S. Filer; providedso subject.
(b) Notwithstanding the foregoing, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall Issuer will not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event so long as the Company will make available such information to prospective purchasers of Notes, in addition to providing Issuer provides such information to the Trustee and the Holders of by the Notes, in each case within 15 days after date the time the Company Issuer would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, pursuant to the extent not preceding paragraph. The requirements set forth in this paragraph and the preceding paragraph may be satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the delivering such information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial Trustee and posting copies of such information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on website (which may be nonpublic and may be maintained by the other handIssuer or a third party) to which access will be given to Holders.
(c) Notwithstanding Prior to the foregoingEffective Date, the Issuer will be deemed to be in compliance with such reporting requirements by virtue of the filing of the Form 10 containing all the information, audit reports and exhibits required for such report.
(d) Delivery of such reports, information and documents to the Trustee pursuant to any of the provisions of this Section 4.03 10.09 is for informational purposes only and the Trustee’s receipt thereof shall not constitute actual or constructive knowledge or 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 is entitled to rely exclusively on Officer’s Certificates). The Trustee will not be deemed satisfied prior obligated to monitor or confirm, on a continuing basis or otherwise, the commencement of the Exchange Offer Issuer’s compliance with this covenant or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement to determine whether such reports, information or Shelf Registration Statement, and documents have been posted on any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports filed with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Samples: Indenture (Apergy Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Holdings shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor comparable form) if the Company were Reporting Entity had been a U.S. Filer; providedreporting company under the Exchange Act, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made except to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided extent permitted to the Trustee and made available to Holders, in lieu of being filed with be excluded by the SEC;
(2ii) within 45 15 days after the end of each time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the first three Reporting Entity for such fiscal quarters of each fiscal year (or such shorter period quarter containing the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q (or any successor or comparable form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report Reporting Entity had been made on Form 10-Q and provided to a reporting company under the Trustee and made available to HoldersExchange Act, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, except to the extent U.S. Filers are permitted to do so be excluded by the SEC; and
(4iii) any other informationwithin 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, documents and other current reports containing substantially all of the information that the Company would be required to file with be filed in a current report on Form 8-K under the SEC if it were a U.S. Filer; providedExchange Act on the Issue Date pursuant to Sections 1, that such reports may be furnished2 and 4, rather Items 5.01, 5.02 (other than filedcompensation information), 5.03(b) and Item 9.01 (only to the extent U.S. Filers are permitted relating to do so by any of the SEC; in each case, in foregoing) of Form 8-K if Holdings had been a manner that complies in all material respects with reporting company under the requirements specified in such formExchange Act; provided, however, that no such current reports (or Items thereof or all or a portion of the Company shall financial statements that would have otherwise been required thereby) will be required to be provided (or included) if Holdings determines in its good faith judgment that such event (or information) is not be so obligated material to file such reports with holders or the SEC if the SEC does not permit such filingbusiness, in which event the Company will make available such information to prospective purchasers assets, operations, financial position or prospects of NotesHoldings and its Restricted Subsidiaries, in taken as a whole. In addition to providing such information to the Trustee and Trustee, Holdings shall make available to the Holders holders, prospective investors, market makers affiliated with any initial purchaser of the NotesNotes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), in each case within 15 days after (ii) or (iii), by posting such information to its website (or any of Holdings’ parent companies) or on IntraLinks or any comparable online data system or website. Notwithstanding the time the Company would foregoing, (A) Holdings will not be required to file furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S K, or (ii) Item 10(e) of Regulation S K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain the separate financial information for Subsidiary Guarantors contemplated by Rule 3 09, Rule 3 10 or Rule 3 16 of Regulation S X, or include any exhibits or certifications required by Form 10 K, Form 10 Q or Form 8 K (or successor or comparable forms) or related rules under Regulation S K and (C) such reports shall be subject to exceptions, exclusions and other differences consistent with the presentation of financial and other information in this offering memorandum and shall not be required to present compensation or beneficial ownership information.
(b) The financial statements, information and other documents required to be provided as described above, may be those of (i) Holdings or (ii) any direct or indirect parent of Holdings (any such entity, a “Reporting Entity”), so long as in the case of (ii) such direct or indirect parent of Holdings shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of Holdings; provided that, if the financial information so furnished relates to such direct or indirect parent of Holdings, the same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to Holdings and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Holdings will make such information with the SECavailable to prospective investors upon request. In addition, if Holdings shall, for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3 2(b) of the Exchange Act, furnish to the extent not satisfied by holders of the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, Holdings will be deemed to have delivered such reports and information referred to in this Section 4.02 to the Trustee and the holders if Holdings or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior to by the commencement posting of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided to the Trustee and the holders on Holdings’ website (or that of any of Holdings’ parent companies). The Trustee shall have no obligation to monitor whether Holdings (or any of Holding’s parent companies) posts such reports, subject information and documents on its website or the SEC’s XXXXX service, or collect any such information from Holding’s (or any of Holding’s parent companies) website or the SEC’s XXXXX service. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the transactions contemplated hereunder.
(e) Holdings will also hold quarterly conference calls for all holders of the Notes and securities analysts to exceptions consistent with the presentation of discuss such financial information in no later than five Business Days after the Offering Memorandumdistribution of such information required by clauses (i) or (ii) of Section 4.02(a) and prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of their covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject Parent shall furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,Trustee:
(1i) within 90 days after the end of each fiscal year of Parent ending after the Issue Date (or such shorter longer period that would as may be applicable to permitted by the Company SEC and any successor thereto if it were a U.S. company that is not a foreign private issuer and that is Parent was then subject to the such SEC reporting requirements of Section 13 or 15(d) as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the Exchange Act (Act), the consolidated financial statements of Parent for such year prepared in accordance with GAAP, together with a report thereon by Parent’s independent auditors, and a “U.S. Filer”) as the SEC may Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in the future prescribe), an annual report Annual Report on Form 10-K filed with the SEC by Parent (or any successor if Parent were required to prepare and file such form); it being understood that (x) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would Parent shall not be required to include in Form 10-K (any consolidating financial information with respect to Parent, the Issuer, any other Guarantor or any successor formother Affiliate of Parent, or any separate financial statements or information for Parent, the Issuer, any other Guarantor or any other Affiliate of Parent and (y) if applicable, Parent shall provide guarantor/non- guarantor financial data consistent with the Company were a U.S. Filer; provided, that guarantor/non-guarantor financial data presented in the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders “Summary—The Offering” section of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SECOffering Memorandum;
(2ii) within 45 days after the end of each of the first three fiscal quarters of in each fiscal year of Parent (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may in and any successor thereto if Parent was then subject to such SEC reporting requirements as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the future prescribeExchange Act), a report containing substantially beginning with the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if first such fiscal quarter ending after the Company were a U.S. Filer; providedIssue Date, that the condensed consolidated financial statements included therein shall be of Parent for such quarter prepared in accordance with GAAP, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in a Quarterly Report on Form 10-Q filed with the SEC by Parent (if Parent were required to prepare and file such form); it being understood that (x) Parent shall not be required to include any consolidating financial information with respect to Parent, the Issuer, any other Guarantor or any other Affiliate of Parent, or any separate financial statements or information for Parent, the Issuer, any other Guarantor or any other Affiliate of Parent and (y) if applicable, Parent shall provide guarantor/non-guarantor financial data consistent with the guarantor/non-guarantor financial data presented in the “Summary—The Offering” section of the Offering Memorandum; and
(iii) information substantially similar to the information that would be required to be included in a Current Report on Form 8-K filed with the SEC by Parent (if Parent were required to prepare and file such form) pursuant to Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountants), Item 4.02 (Non Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant) or Items 5.02(b) and (c) (Departure of Directors or Certain Officers)(other than with respect to information otherwise required or contemplated by Item 402 or Regulation S-K promulgated by the SEC); Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers), of such form, within 10 days after the date of filing that would have been required for a current report on Form 8-K; provided, however, that no such information shall be required to include (x) any exhibits or (y) a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between Parent (or any of its Subsidiaries) and any director, manager or executive officer of Parent (or any of its Subsidiaries); and provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, no such information referenced under this clause (iii) shall be required to be made available or furnished if Parent determines in its good faith judgment that such event is not material to the Holders of the Notes or the business, assets, operations or financial position of Parent and its Restricted Subsidiaries, taken as a whole. Notwithstanding the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holdersforegoing, in lieu of being filed with the SEC;
(3A) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would Parent will not be required to file with furnish any information, certificates or reports required by (i) Section 302 or Section 404 of the Sarbanes Oxley Act of 2002, or related Items 307 or 308 of Regulation S K, (ii) Regulation G or Item 63 10(e) of Regulation S-K promulgated by the SEC if it were a U.S. Filer; providedwith respect to any non-generally accepted accounting principles financial measures contained therein, that or (iii) Rule 3-09 of Regulation S-X, (B) such reports may information will not be furnished, rather than filed, required to contain the extent U.S. Filers are permitted to do so separate financial information for Subsidiaries contemplated by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in Rule 3-10 or Rule 3-16 of Regulation S-X and (C) such form; provided, however, that the Company information shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 present compensation or 15(d) of the Exchange Actbeneficial ownership information. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any the Notes are outstandingremain subject to this paragraph (a) and constitute “restricted securities under Rule 144 under the Securities Act, it the Issuer will furnish to Holders and to securities analysts thereof and prospective investorsinvestors in such Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) (as in effect on the Issue Date) under the Securities Act.
(b) In Parent will make available such information and such reports (as well as the event details regarding the conference call described below) to any Holder and, upon request, to any beneficial owner of the Notes, in each case by posting such information and reports on its website, on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information and reports readily available to any Holder, any prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information and reports as confidential or accesses such information and reports on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that Parent shall post such information and reports thereon and make readily available any password or other login information to any such Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that Parent may deny access to any competitively-sensitive information and reports otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of Parent and its Subsidiaries to the extent that Parent determines in good faith that the provision of such information and reports to such Person would be competitively harmful to Parent and its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein). Parent will hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the Notes) to discuss such financial information (including a customary Q&A session) no later than 10 Business Days after distribution of such financial information, it being agreed, for avoidance of any doubt, that Parent’s customary quarterly earnings’ call shall satisfy this covenant.
(c) Any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company entity may satisfy its the obligations under of Parent set forth in this Section 4.03 with respect to covenant by providing the requisite financial and other information relating of such parent entity instead of Parent; provided that to the Company by furnishing financial extent such information relating related to such parent; providedparent entity, however that the same such information is accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the differences between the information relating to of such parentparent entity, on the one hand, and the information relating to the Company Parent and its Restricted Subsidiaries on a standalone stand-alone basis, on the other hand. 64
(d) Parent will be deemed to have furnished such information referred to above to the Trustee and the Holders if Parent or any direct or indirect parent of Parent has filed such information with the SEC via the XXXXX (or successor) filing system and such information is publicly available.
(ce) Notwithstanding To the foregoingextent any such reports referred to in paragraph (a) above is not so filed or furnished, as applicable, within the requirements time periods specified above and such reports are subsequently filed or furnished, as applicable, Parent 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.
(f) Delivery of reports, information and documents to the Trustee under this Section 4.03 shall be deemed satisfied prior to are for informational purposes only and the commencement Trustee’s receipt of the Exchange Offer foregoing shall not constitute constructive or the effectiveness actual notice of the Shelf Registration Statement by:
any information contained therein or determinable from information contained therein, including Parent’s compliance with any of its covenants hereunder (1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing as to which the Trustee within 15 days of the time periods after the Company would have been required is entitled to file annual and interim reports with the SEC, the financial information (including a “Managementrely exclusively on Officer’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCertificates).
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Company shall file with the SEC (and make available provide to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
following reports: (1) within 90 days after the end of each fiscal year (or such shorter period beginning with the fiscal year ending December 31, [2019]12), an annual report containing substantially all the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially under the same information (including applicable certifications) that Exchange Act if the Company would had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to include in Form 10-K (or any successor form) contain information 12 To be updated to 2020 if the Company were a U.S. Filer; provided, that Issue Date is after the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report audit for 2019 is filed on Form 20-F, the certifications complete. -49- required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
; (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter beginning with the fiscal quarter ending March 31, 2020), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (or any successor formcontrols and procedures); and (3) within ten Business Days after the occurrence of each event that would have been required to be required reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 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) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company were had been a U.S. Filerreporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; providedprovided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the financial statements included therein shall be prepared in accordance with GAAPOffering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, that if any quarterly report however, that, so long as the Company is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made subject to the Holders reporting requirements of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. , such reports (a) shall not be required to comply with Section 302 or 404 of the Xxxxxxxx-Xxxxx Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the
(b) In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will the Company shall furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(bc) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion
(f) In the event that any direct or indirect parent company of the Company becomes a guarantor Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect 4.06 to provide consolidated financial information relating to of the Company by furnishing consolidated financial information relating to such parent; provided, however provided that the same is (1) such financial statements are accompanied by consolidating financial information that explains in reasonable detail the differences between the information relating to for such parent, on the one handCompany, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements Trustee’s receipt of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to exceptions consistent with which the presentation Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of financial information in the Offering Memorandumany such report.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, the Issuer will provide to the Holders and the Trustee the following reports:
(a “U.S. Filer”i) within 105 days following the end of each full fiscal year (or such longer period as would be provided by the SEC may in if the future prescribeIssuer were then subject to SEC reporting requirements as a non-accelerated filer), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the audited annual financial statements included therein of the Issuer, accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Required Holders, and accompanied by an opinion of such accountants (which opinion shall not be prepared in accordance with GAAP; providedsubject to any “going concern” statement, furtherexplanatory note or like qualification or exception (other than a “going concern” statement, that if any annual report explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is filed on Form 20-F, the certifications required by Form 10-K, delivered or anticipated (but not Form 20actual) covenant non-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;compliance); and
(2ii) within 45 60 days after following the end of each of the first three fiscal quarters of each fiscal year year, quarterly reports containing unaudited quarterly financial statements of the Issuer for the fiscal quarter most recently ended and the corresponding fiscal quarter of the prior fiscal year.
(or such shorter period b) [Reserved].
(c) At any time that would be the Issuer (and any applicable Parent Entity) is not subject to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders reporting requirements of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or and 15(d) of the Exchange Act, in lieu of filing such reports with the SEC, the Issuer may make available such information electronically (including by posting to a non-public, password-protected website maintained by the Issuer or a third party) to any Holder, any bona fide prospective investor of the Notes, any bona fide market maker (or person who intends to be a market maker) in the Notes or any bona fide securities analyst, in each case, who provides to the Issuer its email address, employer name and other information reasonably requested by the Issuer. In additionAny Person who requests such financial information from the Issuer will be required to represent to and agree with the Issuer (and by accepting such financial information, such Person will be deemed to have represented to and agreed with the Issuer) to the Issuer’s good faith satisfaction that:
(i) it is a Holder, a bona fide prospective investor in the Notes, a bona fide market maker (or intended market maker) with respect to the Notes or a bona fide securities analyst, as applicable;
(ii) if it is a prospective purchaser of the Notes, it is (a) a Qualified Institutional Buyer (as defined in Rule 144A of the Securities Act) or (b) a non U.S. Person (as defined in Regulation S under the Securities Act);
(iii) it will not use the information in violation of applicable securities laws or regulations;
(iv) it will not communicate the information to any Person and will keep the information confidential;
(v) it will use such information only in connection with evaluating an investment in the Notes (or, if it is a bona fide market maker or intended market maker, only in connection with making a market in the Notes or, if it is a bona fide securities analyst, for preparing analysis for Holders and prospective purchasers of the Notes that otherwise have access to the financial information in compliance with this covenant); and
(vi) it (A) will not use such information in any manner intended to compete with the business of the Issuer and (B) is not a Person (which includes such Person’s Affiliates, other than the Affiliates of a bona fide securities research analyst with whom such research analyst does not share such information) that (1) is principally engaged in a Similar Business or (2) derives a significant portion of its revenues from operating or owning a Similar Business.
(d) To the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstandingoutstanding (unless satisfied and discharged or defeased), it the Issuer will furnish to Holders and to securities analysts and prospective investorspurchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that any direct or indirect parent company foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Company becomes a guarantor Issuer, those of any Parent Entity; provided that, if the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating so furnished relates to such parent; providedParent Entity, however that the same is accompanied by consolidating information that information, which may be posted to the website of the Issuer or on a non-public, password-protected website maintained by the Issuer or a third party, which explains in reasonable detail the differences between the information relating to such parentParent Entity, on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand.
hand (c) Notwithstanding the foregoingit being understood and agreed that if, the requirements of in compliance with this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
paragraph, (1x) the filing Issuer provides audited financial statements of Holdings (or any other Parent Entity) and related report and opinion of accountants with the SEC respect thereto in lieu of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.provided under
Appears in 1 contract
Samples: Indenture (Leslie's, Inc.)
Reports and Other Information. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding under this Indenture:
(a) Notwithstanding that the Company may not be subject Holdings shall furnish to the reporting Holders and the Trustee the following information, such information, in each case, to comply in all material respects with the applicable requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,specified form:
(1i) within 90 days after the end of each fiscal year (or if such shorter period day is not a Business Day, on the next succeeding Business Day), all financial information that would be applicable required to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may be contained in the future prescribe), an annual report on Form 10-K (K, or any successor or comparable form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed Holdings 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 Holdings’ independent registered public accounting firm;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or if such shorter period day is not a Business Day, on the next succeeding Business Day), all financial information that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in a quarterly report on Form 10-Q (Q, or any successor or comparable form) that would be required if , filed by Holdings with the Company were SEC, including a U.S. Filer; provided, that the “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications and
(iii) all information required by Form 10-Q, but not Form 6-K, shall current reports that would be made required to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being be filed with the SEC;
(3) within the time periods specified SEC by Holdings on Form 8-K after the occurrence of an event required to be therein reportedK, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor or comparable form) that would be required , if the Company Holdings were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notesreports, in each case within 15 days after five Business Days of the date on which time the Company would be required to file such information with periods specified in the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. ’s rules and regulations; In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are remain outstanding, it Holdings will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In Holdings will be deemed to have furnished such information referred to in paragraph (a) above to the event that Trustee and the Holders if Holdings or any direct or indirect parent company of Holdings has filed such information with the Company becomes a guarantor of SEC via the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial EXXXX (or successor) filing system and such information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handpublicly available.
(c) Notwithstanding To the foregoingextent any such reports referred to in paragraph (a) above is not so filed or furnished, as applicable, within the requirements time periods specified above and such reports are subsequently filed or furnished, as applicable, Holdings 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.
(d) Delivery of reports, information and documents to the Trustee under this Section 4.03 shall be deemed satisfied prior to are for informational purposes only and the commencement Trustee’s receipt of the Exchange Offer foregoing shall not constitute constructive or the effectiveness actual notice of any information contained therein or determinable from information contained therein, including compliance with any of the Shelf Registration Statement by:
covenants hereunder (1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing as to which the Trustee within 15 days is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Samples: Indenture (Black Knight, Inc.)
Reports and Other Information. (a) Notwithstanding After the date of consummation of the Transfer Transactions, notwithstanding that the Company Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company Issuer shall file with the SEC (unless the SEC will not accept such a filing), and make available to provide the Trustee and Holders of the Notes (without exhibits)with copies thereof, without cost to any each Holder, within 15 days after it files or, in the Company files case of a Form 6-K, furnishes (or attempts to file or furnish) them with the SEC) from and after the Issue Date,
(1i) within 90 days after the end of each fiscal year (or such shorter period that would as may be applicable to required by the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribeSEC), an annual report (which, if permitted under applicable rules of the SEC, may be the annual report of Holdings) on Form 10-K (or any successor form) or Form 20-F (or any successor or comparable forms) containing the information required to be contained therein (or required in such successor or comparable form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;and
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would as may be applicable to required by the Company if it were a U.S. Filer as the SEC may in the future prescribeSEC), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K(which, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders if permitted under applicable rules of the Notes and SEC, may be the Trustee as if such quarterly report had been made of Holdings) on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8or 6-K (or any successor or comparable forms), including a Management’s Discussion and Analysis of Financial Condition and Results of Operations or substantially similar section (whether or not required by such form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and).
(4b) any other information, documents and other reports that The Issuer shall make the Company would be information required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make Section 4.02(a) available such information to prospective purchasers of Notesinvestors upon request. In addition, in addition to providing such information to the Trustee and the Holders of the NotesIssuer shall, in each case within 15 days after the time the Company would be required to file such information with the SEC, if for so long as any Notes remain outstanding during any period when it were is not subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the extent not satisfied by SEC with certain information pursuant to Rule 12g3-2(b) of the foregoingExchange Act, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts of the Notes and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Notwithstanding the foregoing Sections 4.02(a) and (b), the Issuer will be deemed to have furnished the reports required by Sections 4.02(a) and (b) to the Trustee and the Holders if it or Holdings has filed (or, in the case of a Form 6-K, furnished) such reports with the SEC via the XXXXX filing system and such reports are publicly available. In addition, such requirements shall be deemed satisfied prior to the commencement of the exchange offer contemplated by the Registration Rights Agreement 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 in accordance with the provisions of the Registration Rights Agreement, and any amendments thereto, with such financial information (other than relating to the Intelsat Americas Transaction) that satisfies Regulation S-X of the Securities Act and such registration statement and/or amendments thereto are filed at times that otherwise satisfy the time requirements set forth in Section 4.02(a) hereof.
(d) In the event that any direct or indirect parent company Parent of the Company Issuer is or becomes a guarantor Guarantor or co-obligor of the Notes, the Company Issuer may satisfy its obligations under this Section 4.03 4.02 with respect to financial information relating to the Company Issuer by furnishing financial information relating to such parentParent; providedprovided that, however that if required by Regulation S-X under the Securities Act the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentParent and any of its Subsidiaries other than the Issuer and its Subsidiaries, on the one hand, and the information relating to the Company Issuer, the Subsidiary Guarantors, if any, and its Restricted the other Subsidiaries of the Issuer on a standalone stand-alone basis, on the other hand.
(ce) Notwithstanding In the foregoingevent that the Issuer changes its fiscal year end from the fiscal year end used by the Issuer as of the Issue Date, the requirements Issuer shall promptly give notice of this Section 4.03 shall be deemed satisfied prior such change to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumTrustee.
Appears in 1 contract
Samples: Indenture (Intelsat LTD)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Reporting Entity containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01, 5.02(a), (b) and (c) of Form 8-K if the Reporting Entity had been a reporting company under the Exchange Act; provided, however, that no such current reports (or any successor formItems thereof or all or a portion of the financial statements that would have otherwise been required thereby) will be required to be delivered (or included) if the Company were determines in its good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Company and its Restricted Subsidiaries, taken as a U.S. Filer; providedwhole. In addition to providing such information to the Trustee, the Company shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) and (iii), by posting such information to its website (or the website of any of the Company’s parent companies, including the Reporting Entity, or the Issuer) or on IntraLinks or any comparable online data system or website. If at any time the Company or any direct or indirect parent of the Company has made a good faith determination to file a registration statement with the SEC with respect to an Equity Offering of such entity’s Capital Stock, the Company will not be required to disclose any information or take any actions that, in the good faith view of the Company, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such Equity Offering. Notwithstanding the foregoing, (A) neither the Company nor another Reporting Entity will be required to deliver any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial statements included therein shall be prepared in accordance with GAAP; providedor information required by Rule 3-09, furtherRule 3-10, that if Rule 3-16, Rule 13-01 or 13-02 of Regulation S-X or include any annual report is filed on Form 20-F, the exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would be required if the Company were a U.S. Filer; providedor related rules under Regulation S-K, that (C) such reports may shall be furnishedsubject to exceptions, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents exclusions and other reports that differences consistent with the Company would presentation of financial and other information in the Offering Memorandum and shall not be required to file with present compensation or beneficial ownership information, (D) no such report will be required to include as an exhibit, or to include a summary of the SEC if it were a U.S. Filer; providedterms of, that such reports any employment or compensatory arrangement agreement, plan or understanding between the Company (or any of its parent entities or Subsidiaries) and any director, manager or executive officer, of the Company (or any of its parent entities or Subsidiaries), (E) trade secrets and other proprietary information may be furnishedexcluded from any disclosures, rather than filed(F) no financial statements or financial information required by Item 9.01 of Form 8-K shall be required and (G) with respect to any acquisition or Investment consummated after the Issue Date, the financial statements delivered pursuant to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company clause (ii) of this Section 4.02(a) shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with reflect purchase accounting adjustments relating thereto until the SEC, if it were subject to Section 13 or 15(dnext delivery of financial statements under clause (i) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Actthis Section 4.02(a).
(b) In The financial statements, information and other documents required to be provided as described in this Section 4.02 may be those of (i) the event that Company or (ii) any direct or indirect parent company of the Company becomes a guarantor (any such entity described in clause (i) or (ii) that provides such financial statements, information or other documents, the “Reporting Entity”), so long as, in the case of clause (ii) either (1) such direct or indirect parent of the NotesCompany shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any material business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of, the Company may satisfy its obligations under this Section 4.03 with respect to or (2) if otherwise, the financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is so delivered shall be accompanied by consolidating information that explains in reasonable detail a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) The Company will make such information available electronically to prospective investors upon request. The Company shall, for so long as any Notes remain outstanding during any period when neither it nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the holders of the Notes and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Notwithstanding the foregoing, the Company will be deemed to have delivered such reports and information referred to in this Section 4.02 to the holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Company or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.03 4.02 shall be deemed satisfied prior and the Company will be deemed to have delivered such reports and information referred to this Section 4.02 to the commencement Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the Exchange Offer or the effectiveness posting of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, reports and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity, or the Issuer). The Trustee shall have no obligation to monitor whether the Company posts such reports, subject information and documents on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity, or the Issuer) or the SEC’s XXXXX service, or collect any such information from the Company’s (or any of the Company’s parent companies’ or the Issuer’s) website or the SEC’s XXXXX service. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the transactions contemplated thereunder.
(e) The Company will also hold quarterly conference calls for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to exceptions consistent discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (i) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof 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 under this Indenture (as to which the Trustee is entitled to rely conclusively on the Officer’s Certificates). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the presentation provision of financial this Indenture or to ascertain the correctness or otherwise of the information in or the Offering Memorandumstatements contained therein.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding At any time that the Company may not be is subject to (or is voluntarily filing the reports that would be required if the Company were subject to) the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the there are Securities outstanding:
(1) The Company shall file with the SEC (to the extent the SEC will accept such filings) and make available will provide the Trustee and Holders 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 other reports under such Sections and containing all the information, audit reports and exhibits required for such reports.
(2) If the SEC will not accept such filings for any reason, the Company shall post the reports specified in the preceding sentence on its website, in addition to providing such information to the Trustee and Holders of the Notes (without exhibits), without cost to any HolderHolders, within 15 days after the time periods that would apply if the SEC would accept those reports.
(b) At any time that the Company files them with is not subject to (and is not voluntarily filing the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period reports that would be applicable to required if the Company if it were a U.S. company that is not a foreign private issuer and that is subject to to) the reporting requirements of Section 13 or 15(d) of the Exchange Act and there are Securities outstanding: (a “U.S. Filer”1) as The Company will prepare: (A) within 90 days after the SEC may in end of each fiscal year, audited year-end consolidated financial statements of the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information Company and its Subsidiaries (including applicable certificationsa balance sheet, statement of operations and statement of cash flows) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP, together with a report on the annual financial statements by the Company’s independent registered public accounting firm, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2B) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to year, unaudited quarterly consolidated financial statements of the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information and its Subsidiaries (including applicable certificationsa balance sheet, statement of operations and statement of cash flows) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes GAAP and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.and
Appears in 1 contract
Samples: Supplemental Indenture (Alion Science & Technology Corp)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company Issuer shall file with the SEC (and make available provide to the Trustee and and, upon request, to the Holders a copy of all of the Notes (without exhibits), without cost information and reports referred to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,below:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would as may be applicable permitted by the SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), annual audited financial statements for such fiscal year, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the Company if it were periods presented and a U.S. company that is not a foreign private issuer and that is subject to report on the reporting requirements of Section 13 or 15(d) annual financial statements by the Issuer’s independent registered public accounting firm (all of the Exchange Act (foregoing financial information to be prepared on a “U.S. Filer”) as basis substantially consistent with the SEC may corresponding financial information included in the future prescribeOffering Memorandum), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the future prescribeOffering Memorandum); and
(iii) within the time period specified for filing current reports on Form 8-K by the SEC, a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) current reports that would be required to be filed with the SEC on Form 8-K if the Company Issuer were required to file such reports for any of the following events: (a) significant acquisitions or dispositions (other than the Transactions), (b) the bankruptcy of the Issuer or a U.S. FilerSignificant Subsidiary, (c) the acceleration of any Indebtedness of the Issuer or any Restricted Subsidiary having a principal amount in excess of $75.0 million, (d) a change in the Issuer’s certifying independent auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of Holdings, (f) resignation of a director on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions (other than the Transactions), (j) entry into material agreements and (k) entry into material direct financial obligations; providedprovided that no such current report will be required to be furnished if the Issuer or any direct or indirect parent of the Issuer determines in its good faith judgment that such event is not material to Holders or to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole, or if the Issuer or any direct or indirect parent of the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial statements included therein shall be prepared in accordance with GAAPposition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that if any quarterly report is filed on Form 6such non-K, the certifications required by Form 10-Q, but not Form 6-K, disclosure shall be made limited only to the Holders of the Notes those specific provisions that would cause material competitive harm and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after not the occurrence of an the event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Fileritself; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and and, upon request, Holders, the Holders of Issuer shall, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of the Issuer (or any direct or indirect parent of the Issuer) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer) or a third party, in each case case, within 15 days after the time the Company Issuer would be required to file provide such information pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (as determined in good faith by the Issuer or any direct or indirect parent of the Issuer) (it being understood that, without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the foregoing, and for the avoidance of doubt, (i) the Issuer shall not be required to furnish any information, certificates or reports required by (A) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC with respect to financial measures contained therein, (ii) the information and reports referred to in Section 3.2(a) will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information is required to be provided by the Issuer (including with respect to the Transactions), the Issuer may provide only pro forma revenues, net income, EBITDA, Adjusted EBITDA (as such term is defined in the Offering Memorandum), senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the information and reports referred to in Section 3.2(a) shall not be required to present compensation or beneficial ownership information, (v) the information and reports referred to in Section 3.2(a) shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K and (vi) trade secrets and other proprietary information may be excluded from any disclosures. If at any time the Issuer or any direct or indirect parent of the Issuer has made a good faith determination to file a registration statement with the SECSEC with respect to an Equity Offering of such entity’s Capital Stock, if it were subject the Issuer will still be required to provide reports pursuant to this Section 13 or 15(d) 3.2, but the content of such reports will not be required to disclose any information that, in the good faith view of the Exchange Act. Issuer or any direct or indirect parent of the Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such Equity Offering.
(c) For so long as the Issuer has designated certain of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by Section 3.2(a) will include a reasonably detailed presentation (which need not be audited or reviewed by the auditors), either on the face of the financial statements or in the notes thereto, or in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, 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.
(d) In addition, to the extent not satisfied by the foregoing, the Company will agree Issuer agrees that, for so long as any Notes are outstanding, it will the Issuer shall furnish to Holders and to securities analysts and prospective investorsHolders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Issuer, those of (i) any predecessor or successor of the Issuer or any entity meeting the requirements of clause (ii) or (iii) of this Section 3.2(e), (ii) any Wholly Owned Subsidiary of the Issuer that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Issuer and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent company of the Company becomes a guarantor Issuer; provided that, if the financial information so furnished relates to such Qualified Reporting Subsidiary of the NotesIssuer or such direct or indirect parent of the Issuer, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information information, which may be posted to the website of the Issuer (or any direct or indirect parent of the Issuer) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer) or a third party, that explains in reasonable detail the differences between the information relating to such parentQualified Reporting Subsidiary or such parent entity (as the case may be), on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited or reviewed by the auditors.
(cf) Notwithstanding The Issuer will be deemed to have satisfied the foregoinginformation and reporting requirements of Section 3.2(a) if (i) the Issuer or any Qualified Reporting Subsidiary of the Issuer or any direct or indirect parent of the Issuer has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC via XXXXX to the extent it is otherwise provided to Holders pursuant to this Section 3.2) with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and that are publicly available or (ii) with respect to the Holders only, the Issuer or such Qualified Reporting Subsidiary or such parent entity has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2.
(g) So long as Notes are outstanding, the Issuer shall also:
(i) promptly after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(i) and 3.2(a)(ii), hold a conference call to discuss such reports and the results of operations for the relevant reporting period; provided, however, that the Issuer will be deemed to have satisfied the requirements of this Section 4.03 shall be deemed satisfied clause (i) if any direct or indirect parent of the Issuer holds a conference call to discuss such reports and results of operations for the relevant reporting period; and
(ii) announce by press release or post to the website of the Issuer (or any direct or indirect parent of the Issuer) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer) or a third party, which may require a confidentiality acknowledgment (but not restrict the recipients of such information from trading securities of the Issuer or its Affiliates), prior to the commencement date of the Exchange Offer conference call required to be held in accordance with Section 3.2(g)(i), the time and date of such conference call and either all information necessary to access the call or informing Holders, bona fide prospective investors in the effectiveness Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of an investment in the Shelf Registration Statement byNotes) how they can obtain such information, including, without limitation, the applicable password or other login information.
(h) Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this Section 3.2 may be required to provide its email address, employer name and other information reasonably requested by the Issuer and represent to the Issuer (to the Issuer’s reasonable good faith satisfaction) that:
(1i) the filing with the SEC it is a Holder, a beneficial owner of the Exchange Offer Registration Statement or Shelf Registration StatementNotes, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information bona fide prospective investor in the Offering Memorandum.Notes, a bona fide market maker in the Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of investment in the Notes;
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may Whether or not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated required by the SECCommission, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it if not filed electronically with the Commission through the Commission’s Electronic Data Gathering, Analysis, and Retrieval System (or any successor system), CDW will furnish to Holders the Trustee and to securities analysts and prospective investorsthe Holders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating without cost to the Company by furnishing financial information relating to such parent; providedTrustee, however within the time periods specified in the Commission’s rules and regulations for a filer that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by“non-accelerated filer”:
(1) substantially the same quarterly and annual financial information that would be required to be contained in a filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration StatementCommission on Forms 10-Q and 10-K, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been if CDW were required to file annual and interim reports with the SECsuch forms, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” sectionand, with respect to the annual information only, a report on the annual financial statements by CDW’s certified independent accountants; and
(2) substantially the same current reports that would be required to be included filed with the Commission on Form 8-K if CDW were required to file such reports. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, CDW 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; provided, that such cure shall not otherwise affect the rights of the Holders pursuant to Article VI if holders of at least 25% in principal amount of the then total outstanding Notes have declared the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately and such declaration shall not have been rescinded or cancelled prior to such cure. In addition, if at any time any direct or indirect parent company (other than Parent) becomes a Guarantor (there being no obligation of any such parent company to do so), holds no material assets other than cash, Cash Equivalents and the Capital Stock of CDW or any other direct or indirect parent of CDW (and performs the related incidental activities associated with such ownership) and complies with the requirements of Rule 3-10 of Regulation S-X promulgated by the Commission (or any successor provision), the reports, information and other documents required to be filed and furnished to Holders of the Notes pursuant to this Section 4.03 may, at the option of CDW, be filed by and be those of such parent company rather than CDW; provided that the same are accompanied by consolidating information as required by Rule 3-10 of Regulation S-X (or any successor provision) that explains in reasonable detail the differences between the information relating to Parent and such other parent, on the one hand, and the information relating to CDW and its Restricted Subsidiaries on a standalone basis, on the other hand. The Trustee’s receipt of such reports, subject information and documents shall not constitute constructive notice of any information contained therein, including CDW’s compliance with any of the covenants under this Indenture. The Trustee is under no duty to exceptions consistent examine such reports, information or documents to ensure compliance with the presentation provisions of financial this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee is entitled to assume such compliance and correctness unless and to the extent a Responsible Officer of the Trustee is informed otherwise in an Officers’ Certificate delivered to it pursuant to the Offering Memorandumterms of this Indenture.
Appears in 1 contract
Samples: Indenture (CDW Corp)
Reports and Other Information. The Borrower shall furnish to the Administrative Agent (and the Administrative Agent will forward to or post on the Approved Electronic Platform for the Lenders) each of the following:
(a) Notwithstanding that within the Company may not be subject to time period specified in the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to Commission’s rules and regulations promulgated by the SECregulations, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report reports on Form 10-K (or any successor form) or Form 20-F (or any successor comparable form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained therein (or required in such successor or comparable form), and
(b) within the time period specified in the Commission’s rules and regulations, reports on Form 10-Q (or any successor or comparable form) that would be required if containing the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K therein (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such successor or comparable form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act). In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that that:
(i) the rules and regulations of the Commission permit the Borrower and any direct or indirect parent company of the Company becomes Borrower to report at such parent entity’s level on a guarantor consolidated basis and
(ii) such parent entity of the NotesBorrower is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the Company may capital stock of the Borrower, such consolidated reporting at such parent entity’s level in a manner consistent with that described in this covenant for the Borrower will satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parentcovenant; provided, however provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parentdirect or indirect parent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand. Notwithstanding the foregoing, the Borrower will be deemed to have furnished such reports referred to above to the Administrative Agent and the Lenders if (i) Marquee has filed such reports (with respect to Marquee) with the Commission via the XXXXX filing system and such reports are publicly available and (ii) the Borrower has provided to the Administrative Agent the financial statements which it would have been required to include in such reports if the Borrower had been the registrant thereunder. In addition, such requirements shall be deemed satisfied by the filing with the Commission of a registration statement or an amendment thereto relating to debt or equity securities of the Borrower if such registration statement and/or amendments thereto are filed at times that otherwise satisfy the time requirements set forth in the first paragraph of this covenant. In the event that any direct or indirect parent of the Borrower is or becomes a guarantor of the Loans, the Borrower shall satisfy its obligations under this Section 5.9 (Reports and Other Information) with respect to financial information relating to the Borrower by furnishing financial information relating to such direct or indirect parent; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and any of its Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand.
(c) Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum.
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may Whether or not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated required by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,
(1) within 90 days after the end of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it the Company will file with the SEC for public availability within the time periods specified in the SEC’s rules and regulations taking into account any extension of time, deemed filing date or safe harbor contemplated or provided for by Rule 12b-25, under the Exchange Act, and successor provision (unless the SEC will not accept such a filing, in which case the Company will furnish to the Trustee and the Collateral Trustee and, upon its prior request, to any Holder, within the time periods specified in the SEC’s rules and regulations):
(i) quarterly reports on Form 10-Q and annual reports on Form 10-K, or any successor or comparable forms, containing all the information that would be required to be contained therein if the Company were required to file such reports, or required in such successor or comparable form; and
(ii) all current reports on Form 8-K, or any successor or comparable form, that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.
(b) For so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, if at any time the Company and the Guarantors are not required to file the reports required by the preceding paragraphs with the SEC, they will furnish to the Trustee and the Collateral Trustee, the Holders and to securities analysts and prospective investorsinvestors in the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In Act to facilitate the event that resale of such Notes or shares of Common Stock pursuant to Rule 144A. The Company shall take such further action as any direct Holder or indirect parent company beneficial owner of such Notes or such Common Stock may reasonably request to the extent from time to time required to enable such Holder or beneficial owner to sell such Notes or shares of Common Stock in accordance with Rule 144A, as such rule may be amended from time to time. The Company becomes a guarantor will be deemed to have provided such information to the Holders of the Notes, the Company may satisfy its obligations under this Section 4.03 beneficial owners of the Notes, securities analysts and prospective holders of the Notes if it has filed reports containing such information with respect to financial information relating to the Company by furnishing financial information relating to SEC via the XXXXX filing system and such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other handreports are publicly available.
(c) Notwithstanding Delivery of the foregoingreports and documents described in subsections (a)-(b) above to the Trustee and/or the Collateral Trustee is for informational purposes only, and the Trustee’s and/or Collateral Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or any other Person’s compliance with any of its covenants hereunder (as to which the Trustee and/or Collateral Trustee is entitled to conclusively rely on an Officers’ Certificate). The Trustee and the Collateral Trustee shall have no liability or responsibility for the filing, timeliness or content of any report delivered hereunder. It is further understood that neither the Trustee nor the Collateral Trustee shall have any obligation whatsoever to monitor or confirm, on a continuing basis or otherwise, the requirements of Company’s or any other Person’s compliance with this Section 4.03 shall be deemed satisfied prior 4.05 or to the commencement of the Exchange Offer determine whether or the effectiveness of the Shelf Registration Statement by:
(1) the filing not such reports or documents or reports have been filed with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumotherwise.
Appears in 1 contract
Samples: Senior Secured Convertible Notes Indenture (SAExploration Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Company Issuer shall file with the SEC (and make available provide to the Trustee and and, upon request, to the Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after a copy of all of the Company files them with the SEC) from following information and after the Issue Date,reports:
(1i) within 90 days after the end of each fiscal year (or such shorter longer period that would as may be applicable permitted by the SEC (including pursuant to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) Rule 12b-25 of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) Act; provided that the Company would Issuer shall not be required to include in Form 10-K provide the information required by paragraph (a) or any successor form(c) thereof) if the Company Issuer were then subject to SEC reporting requirements as a U.S. Filer; providednon-accelerated filer), that the annual audited financial statements included therein shall for such fiscal year including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the periods presented and a report on the annual financial statements by the Issuer’s auditors (all of the foregoing financial information to be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed a basis substantially consistent with the SEC;corresponding financial information included in the Offering Memorandum),
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter longer period that would as may be applicable to the Company if it were a U.S. Filer as permitted by the SEC may (including pursuant to Rule 12b-25 of the Exchange Act; provided that the Issuer shall not be required to provide the information required by paragraph (a) or (c) thereof) if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the corresponding financial information included in the future prescribeOffering Memorandum), a report containing substantially and
(iii) within the same information (including applicable certifications) required to be contained in time period specified for filing current reports on Form 108-Q (or any successor form) K by the SEC, current reports that would be required to be filed with the SEC on Form 8-K if the Company Issuer were required to file such reports for any of the following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of the Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of the Issuer or any Restricted Subsidiary having a principal amount in excess of $75 million, (d) a change in the Issuer’s auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of the Issuer, (f) resignation of a director on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions, (j) entry into material agreements, (k) entry into material direct financial obligations and (l) historical financial statements (other than pro forma financial statements, the provision of which shall be governed by the next succeeding paragraph) of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K to the extent and in the form available to the Issuer (as determined by the Issuer in good faith) if the Issuer were a U.S. Filerdomestic reporting company under the Exchange Act); providedprovided that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to Holders of the Notes or to the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole, or if the Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial statements included therein shall be prepared in accordance with GAAPposition or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that if any quarterly report is filed on Form 6such non-K, the certifications required by Form 10-Q, but not Form 6-K, disclosure shall be made limited only to the Holders of the Notes those specific provisions that would cause material competitive harm and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after not the occurrence of an the event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Fileritself; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; providedfurther, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and upon request, Holders of the Notes, the Issuer shall, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders of the Notes, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of the Issuer (or any direct or indirect parent of the Issuer or of a Restricted Subsidiary) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer or of a Restricted Subsidiary) or a third party, in each case case, within 15 days after the time the Company Issuer would be required to file provide such information with pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (as determined by the SECIssuer in good faith) (it being understood that, if it were subject without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the foregoing, (i) the Issuer shall not be required to furnish any information, certificates or reports required by (A) Section 13 302, Section 404 or 15(dSection 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the Exchange Act. SEC with respect to financial measures contained therein, (ii) the information and reports referred to in Section 3.2(a) will not be required to contain the separate financial statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, (iii) to the extent pro forma financial information is required to be provided by the Issuer, the Issuer may provide only pro forma revenues, net income, EBITDA, Adjusted EBITDA (as such term is defined in the “Summary” section in the Offering Memorandum), senior secured debt, total debt and capital expenditures (or equivalent financial information) in lieu thereof, (iv) the information and reports referred to in Section 3.2(a) shall not be required to present compensation or beneficial ownership information and (v) the information and reports referred to in Section 3.2(a) shall not be required to include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K.
(c) For so long as the Issuer has designated certain of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by Section 3.2(a) will include a reasonably detailed presentation (which need not be audited or reviewed by the auditors), either on the face of the financial statements or in the notes thereto, or in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, 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.
(d) In addition, to the extent not satisfied by the foregoing, the Company will agree Issuer agrees that, for so long as any Notes are outstanding, it will shall furnish to Holders and to securities analysts and prospective investorsof the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct (or any successor provision).
(be) In Notwithstanding the event that foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Issuer, those of (i) any predecessor or successor of the Issuer or any entity meeting the requirements of clause (ii) or (iii) of this Section 3.2(e), (ii) any Wholly Owned Subsidiary of the Issuer that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Issuer and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent company of the Company becomes a guarantor Issuer; provided that, if the financial information so furnished relates to such Qualified Reporting Subsidiary or such direct or indirect parent of the NotesIssuer referred to in the preceding clauses (ii) or (iii), the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; providedrespectively, however that the same is accompanied by consolidating information information, which may be posted to the website of the Issuer (or any direct or indirect parent of the Issuer or of a Restricted Subsidiary) or on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer or of a Restricted Subsidiary) or a third party, that explains in reasonable detail the differences between the information relating to such parentQualified Reporting Subsidiary or such parent (as the case may be), on the one hand, and the information relating to the Company Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(cf) Notwithstanding The Issuer will be deemed to have satisfied the foregoinginformation and reporting requirements of Section 3.2(a) if (i) the Issuer or any Qualified Reporting Subsidiary or any direct or indirect parent of the Issuer has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC via XXXXX to the extent it is otherwise provided to Holders of the Notes pursuant to this Section 3.2) with the SEC via the XXXXX (or successor) filing system within the applicable time periods after giving effect to any extensions permitted by the SEC and that are publicly available or (ii) with respect to the Holders of the Notes only, the Issuer or such Qualified Reporting Subsidiary or such parent has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2.
(g) So long as Notes are outstanding, the Issuer shall also:
(i) promptly after furnishing to the Trustee the annual and quarterly reports required by Sections 3.2(a)(i) and 3.2(a)(ii), hold a conference call to discuss such reports and the results of operations for the relevant reporting period; provided, however, that the Issuer will be deemed to have satisfied the requirements of this Section 4.03 shall be deemed satisfied clause (i) if any Qualified Reporting Subsidiary or any direct or indirect parent of the Issuer holds a conference call to discuss such reports and results of operations for the relevant reporting period; and
(ii) post to the website of the Issuer (or any direct or indirect parent of the Issuer or of a Restricted Subsidiary), announce by press release or post on a non-public, password-protected website maintained by the Issuer (or any direct or indirect parent of the Issuer or of a Restricted Subsidiary) or a third party, which may require a confidentiality acknowledgment (but not restrict the recipients of such information from trading securities of the Issuer or its affiliates), prior to the commencement date of the Exchange Offer conference call required to be held in accordance with Section 3.2(g)(i), the time and date of such conference call and either all information necessary to access the call or informing the effectiveness Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of an investment in the Shelf Registration Statement byNotes) how they can obtain such information, including, without limitation, the applicable password or other login information.
(h) Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this Section 3.2 may be required to provide its email address, employer name and other information reasonably requested by the Issuer and represent to the Issuer (to the Issuer’s reasonable good faith satisfaction) that:
(1i) it is a Holder of the filing Notes, a beneficial owner of the Notes, a bona fide prospective investor in the Notes, a bona fide market maker in the Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of investment in the Notes;
(ii) it will not use the information in violation of applicable securities laws or regulations;
(iii) it will keep such provided information confidential and will not communicate the information to any Person; and
(iv) it (a) will not use such information in any manner intended to compete with the SEC business of the Exchange Offer Registration Statement Issuer and its Subsidiaries and (b) is not a Person (which includes such Person’s Affiliates) that (i) is principally engaged in a Similar Business or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X (ii) derives a significant portion of the Securities Act, orits revenues from operating or owning a Similar Business.
(2i) posting on its website or providing Delivery of reports, information and documents (including, without limitation, reports contemplated under this Section 3.2) to the Trustee within 15 days 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 time periods after compliance by the Company would Issuer with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have been required to file annual and interim reports with no liability or responsibility for the SECfiling, the financial information (including a “Management’s Discussion and Analysis timeliness or content of Financial Condition and Results of Operations” section) that would be required to be included in any such reports, subject to exceptions consistent with the presentation of financial information in the Offering Memorandumreport or filing.
Appears in 1 contract
Samples: Indenture (PPD, Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report reports on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall (a) file with the SEC (unless the SEC will not accept such filing), and make available (b) deliver to the Trustee and and, upon written request, the registered Holders of the Notes (without exhibits)Notes, without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date,:
(1) within 90 days after the end of each fiscal year time periods specified by the Exchange Act (including all applicable extension periods), an annual report on Form 10-K (or any successor or comparable form) containing the information required to be contained therein in all material respects (or required in such shorter period successor or comparable form);
(2) within the time periods specified by the Exchange Act (including all applicable extension periods), a quarterly report on Form 10-Q (or any successor or comparable form); and
(3) all current reports that would be applicable required to be filed with the SEC on Form 8-K (or any successor or comparable form).
(b) In the event that the Company is not permitted to file such reports with the SEC pursuant to the Exchange Act, the Company shall nevertheless deliver to the Trustee and make available such Exchange Act reports to the registered Holders of the Notes as if it the Company were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may in the future prescribe), an annual report on Form 10-K (or any successor form) or Form 20-F (or any successor form) containing substantially the same information (including applicable certifications) that the Company would be required to include in Form 10-K (or any successor form) if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any annual report is filed on Form 20-F, the certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after by the occurrence of an event required to Exchange Act (including all applicable extension periods), which requirement may be therein reported, satisfied by posting such other reports on its website within the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor form) that would be required if the Company were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so time periods specified by the SEC; andthis covenant.
(4c) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, to the extent U.S. Filers are permitted to do so by the SEC; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree thatshall, for so long as any Notes are outstanding, it will furnish make available to the Holders and to securities analysts of the Notes 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 the Notes are not freely transferable under the Securities Act.
(bd) In Delivery of such reports, information and documents to the event that Trustee is for informational purposes only and the Trustee’s receipt of such will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (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 reports.
(e) The Company will be deemed to have satisfied the information and reporting requirements of this Section 4.03 if the Company (or any direct or indirect parent company of the Company becomes a guarantor of Company) has filed reports or registration statements containing such information with the NotesSEC via the SEC’s Electronic Data Gathering, Analysis and Retrieval system (or any successor system) within the Company may satisfy its obligations under this Section 4.03 with respect time periods specified above and such reports are publicly available provided, however, that the Trustee shall have no obligation whatsoever to financial information relating to the Company by furnishing financial information relating determine whether or not such information, documents or reports have been filed pursuant to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and system (or its Restricted Subsidiaries on a standalone basis, on the other handsuccessor).
(cf) Notwithstanding the foregoing, the requirements of such reports and other information required to be provided pursuant to this Section 4.03 shall be deemed satisfied prior to the commencement may be, rather than those of the Exchange Offer Company, those of any direct or the effectiveness indirect parent of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in such reports, subject to exceptions consistent with the presentation of financial information in the Offering MemorandumCompany.
Appears in 1 contract
Samples: Indenture (Viasat Inc)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECFor so long as any Notes are outstanding, the Company Issuers shall file with the SEC (and make available deliver to the Trustee and Holders a copy of all of the Notes information and reports referred to below:
(without exhibits), without cost to any Holder, i) within 15 days after the Company files them with time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity (as defined below) from and after the Issue Date,
(1) within 90 days after the end of each for such fiscal year (or such shorter period containing the information that would have been required to be applicable to the Company if it were a U.S. company that is not a foreign private issuer and that is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (a “U.S. Filer”) as the SEC may contained in the future prescribe), an annual report on Form 10-K (or any successor or comparable form) or if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC;
(ii) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, quarterly reports of the Reporting Entity for such fiscal quarter containing the information that would have been required to be contained in a quarterly report on Form 2010-F Q (or any successor or comparable form) if the Reporting Entity had been a reporting company under the Exchange Act, except to the extent permitted to be excluded by the SEC; and
(iii) within 15 days after the time period specified in the SEC’s rules and regulations for filing current reports on Form 8-K, current reports of the Reporting Entity containing substantially all of the same information (including applicable certifications) that the Company would be required to include be filed in a current report on Form 108-K under the Exchange Act on the Issue Date pursuant to Sections 1, 2 and 4, Items 5.01, 5.02 (a),(b) and (c) and Item 9.01(a) and (b) (only to the extent relating to any of the foregoing) of Form 8-K if the Reporting Entity had been a reporting company under the Exchange Act. In addition to providing such information to the Trustee, the Issuers shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to the foregoing clauses (i), (ii) and (iii), by posting such information to its website (or the website of any successor formof the Company’s parent companies, including the Reporting Entity) if or on IntraLinks or any comparable online data system or website. If at any time the Company were or any direct or indirect parent of the Company has made a U.S. Filer; provided, that good faith determination to file a registration statement with the financial statements included therein shall be prepared in accordance SEC with GAAP; provided, further, that if any annual report is filed on Form 20-Frespect to an initial public offering of such entity’s Capital Stock, the Issuers will not be required to disclose any information or take any actions that, in the good faith view of the Company, would violate the securities laws or the SEC’s “gun jumping” rules. Notwithstanding the foregoing, (A) neither the Company nor another Reporting Entity will be required to deliver any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the Sxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K or (ii) Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, (B) such reports will not be required to contain financial information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or include any exhibits or certifications required by Form 10-K, but not Form 20-F, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-K and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or such shorter period that would be applicable to the Company if it were a U.S. Filer as the SEC may in the future prescribe), a report containing substantially the same information (including applicable certifications) required to be contained in Form 10-Q (or any successor form) that would be required if the Company were a U.S. Filer; provided, that the financial statements included therein shall be prepared in accordance with GAAP; provided, further, that if any quarterly report is filed on Form 6-K, the certifications required by Form 10-Q, but not Form 6-K, shall be made to the Holders of the Notes and the Trustee as if such report had been made on Form 10-Q and provided to the Trustee and made available to Holders, in lieu of being filed with the SEC;
(3) within the time periods specified on Form 8-K after the occurrence of an event required to be therein reported, such other reports on the appropriate form for reporting current events containing substantially the same information required to be contained in Form 8-K (or any successor formor comparable forms) that would or related rules under Regulation S-K and (C) such reports shall not be required to present compensation or beneficial ownership information.
(b) The financial statements, information and other documents required to be provided as described in this Section 4.02 may be those of (i) the Company and its Subsidiaries and the Affiliated Guarantors and their Subsidiaries (on a combined basis) or (ii) any direct or indirect parent of all of the Company and the Affiliated Guarantors (any such entity, a “Reporting Entity”), so long as in the case of clause (ii) such direct or indirect parent of the Company and Affiliated Guarantors shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any material business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of, the Affiliated Guarantors and the Company; provided that, if the financial information so delivered relates to such direct or indirect parent of the Company were and Affiliated Guarantors, the same is accompanied by a U.S. Filer; providedreasonably detailed description of the quantitative differences between the information relating to such parent, that such reports may be furnishedon the one hand, rather than filedand the information relating to each of the Affiliated Guarantors and the Company and its Subsidiaries on a standalone basis, on the other hand, together with consolidating financial statements of the foregoing for the applicable period. Notwithstanding any of the foregoing herein, to the extent U.S. Filers are permitted to do so by any of the SEC; and
(4) any other information, documents and other reports that the Company would be required to file with the SEC if it were a U.S. Filer; provided, that such reports may be furnished, rather than filed, Company’s parent companies is subject to the extent U.S. Filers are permitted to do so by reporting requirements under Section 13 or 15(d) of the SEC; in each caseExchange Act, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, described in addition to providing such information to this paragraph shall be included in the Trustee Form 10-K and the Holders Form 10-Q reports of the Notes, Reporting Entity described in each case within 15 days after the time the Company would be required to file such information Section 4.02(a)(i) and (ii) filed with the SEC.
(c) In addition, if the Issuers will make such information available to prospective investors upon request. The Issuers have agreed that, for so long as any Notes remain outstanding during any period when neither it were nor another Reporting Entity is subject to Section 13 or 15(d) of the Exchange Act. In addition, or otherwise permitted to furnish the extent not satisfied by SEC with certain information pursuant to Rule 12g3-2(b) of the foregoingExchange Act, the Company will agree that, for so long as any Notes are outstanding, it they will furnish to Holders the holders of the Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Company by furnishing financial information relating to such parent; provided, however that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand.
(cd) Notwithstanding the foregoing, the Issuers will be deemed to have delivered such reports and information referred to in this Section 4.02 to the holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Company or another Reporting Entity has filed such reports with the SEC via the EXXXX filing system (or any successor system) and such reports are publicly available. In addition, except as required by the last sentence of Section 4.02(b), the requirements of this Section 4.03 4.02 shall be deemed satisfied prior and the Issuers will be deemed to have delivered such reports and information referred to this Section 4.02 to the commencement Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the Exchange Offer or the effectiveness posting of the Shelf Registration Statement by:
(1) the filing with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement, reports and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, or
(2) posting on its website or providing to the Trustee within 15 days of the time periods after the Company would have been required to file annual and interim reports with the SEC, the financial information (including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section) that would be required to be included in provided on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity). The Trustee shall have no obligation to monitor whether the Issuers post such reports, subject to exceptions consistent information and documents on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity) or the SEC’s EXXXX service, or collect any such information from the Company’s (or any of the Company’s parent companies) website or the SEC’s EXXXX service.
(e) The Company will also hold quarterly conference calls, beginning with the presentation first full fiscal quarter ending after the Issue Date, for all holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (i) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and date of such conference call and either include all information necessary to access the call or inform holders of the Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(f) Delivery of reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the information and the Trustee’s receipt of the foregoing shall not constitute actual or constructive notice of any information contained therein, or determinable from information contained therein, including the Issuers’ compliance with any of its covenants thereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provision of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. In addition, the Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the Offering Memorandumtransactions contemplated hereunder, and the Trustee shall have no duty to participate in or monitor any conference calls.
Appears in 1 contract
Samples: Indenture (Exela Technologies, Inc.)
