Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date: (i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form; (ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form; (iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. (c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries). (d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 3 contracts
Samples: Indenture (Hilton Grand Vacations Inc.), Indenture (Hilton Grand Vacations Inc.), Indenture (Hilton Grand Vacations Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date, the Issuer shall furnish to the Trustee no later than 15 days after the periods set forth below:
(i) within 90 120 days after the end of each fiscal year, all financial information that would be required to be contained in an annual reports report on Form 10-K, or any successor or comparable form (if form, filed with the Issuer had been SEC, including a reporting company under Section 15(d) “Management’s discussion and analysis of financial condition and results of operations” and a report on the Exchange Act), containing substantially all annual financial statements by the information that would be required to be contained therein, or required in such successor or comparable formIssuer’s independent registered public accounting firm;
(ii) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, reports all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form (if form, filed with the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;SEC; and
(iii) promptly after the occurrence of a material event which any of the following events, all current reports that would have been be required to be reported filed with the SEC on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act); provided, that the foregoing shall not obligate the Issuer to (x) make available any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if the Issuer determines in its good faith judgment that such 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 or (y) make available copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report relating to such event on Form 8-K K:
(A) the entry into or any successor termination of material agreements;
(B) significant acquisitions or comparable formdispositions (which shall only be with respect to acquisitions or dispositions that are “significant” pursuant to the definition of “significant subsidiary” in Rule 1-02(w)(2) of Regulation S-X);
(C) the sale of equity securities;
(D) bankruptcy;
(E) cross-default under direct material financial obligations;
(F) a change in the Issuer’s certifying independent auditor;
(G) the appointment or departure of directors or executive officers (but only to the extent required by Form 8-K);
(H) non-reliance on previously issued financial statements;
(I) change of control transactions;
(J) triggering events that accelerate or increase a direct financial obligation or an obligation under an off-balance sheet arrangement; and
(K) material impairments; in each case, in a manner that complies in all material respects with the requirements specified in such form (form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Memorandum)below; provided, however, that the Issuer shall not be so obligated required to file such reports referred to in clauses (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 or (ii) provide separate financial statements or other information contemplated by Rule 3-09, 3-10 or 3-16 of Regulation S-X, or in each case any successor provisions; provided that, if the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required by clauses (1) and (iii2) above of this Section 4.03(a) shall include a presentation of selected financial metrics of such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations.” In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the SEC if Xxxxxxxx-Xxxxx Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K. To the SEC does extent any such information is not permit so filed or furnished, as applicable, within the time periods specified in this Section 4.03(a) and such filinginformation is subsequently filed or furnished, in which event as applicable, the Issuer shall make available be deemed to have satisfied its obligations with respect thereto at such information time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the Trustee, rights of the Holders and prospective purchasers under Article 6 hereof if Holders of Notes, at least 30% in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) principal amount of the Exchange Actthen total outstanding Notes have declared the principal of, 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, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, outstanding the Issuer 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) The Issuer may satisfy its obligations under in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of entity; provided that the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected financial metrics that show an explanation of the material differences (in the Issuer’s sole discretion) differences, if any, between the information relating to such parentparent entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone 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.
(c) If Substantially concurrently with respect the furnishing or making such information available to any reporting period(s) covered in the applicable reportTrustee pursuant to Section 4.03(a), the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as Issuer shall post copies of such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses Section 4.03(a) on a website (a)(iwhich may be nonpublic and may be maintained by the Issuer or a third party) to which access will be given to Holders, prospective investors in the Notes and securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer. To the extent the Issuer 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, furnish such reports to the Holders of the Notes, upon their request. The Issuer may condition the delivery of any 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 there) and information as confidential, (a)(iiii) above shall include a supplemental section in “Management’s Discussion not use such reports (and Analysis of Financial Condition the information contained therein) and Results of Operations” presenting (in a manner consistent with the presentation of information included for any purpose other than their investment or incorporated by reference potential investment in the Offering MemorandumNotes and (iii) selected financial measures of not publicly disclose any such Unrestricted Subsidiaries in reports (and the aggregate (separate from the financial information of the Issuer contained therein) and its Restricted Subsidiaries)information.
(d) Notwithstanding anything herein Delivery of such reports, information and documents to the contraryTrustee is for informational purposes only and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable for information contained therein, including the Issuer’s and any Guarantor’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(e) Notwithstanding any other provision of this Indenture, the Issuer will not be deemed sole remedy for an Event of Default relating to have failed the failure to comply with any of its the reporting obligations hereunder described under this covenant, shall for purposes of clause (iii) of Section 6.01(a) hereof until 120 the 365 days after the receipt occurrence of such an Event of Default consist exclusively, to the extent permitted by applicable law, of the written notice delivered thereunderright to receive additional interest on the principal amount of the Notes at a rate equal to 0.50% per annum. To This additional interest shall be payable in the extent same manner and subject to the same terms as other interest payable under this Indenture. This additional interest shall accrue on all outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations described above under this covenant first occurs to, but excluding, the 365th day thereafter (or such earlier date on which the Event of Default relating to such reporting obligations is cured or waived). If the Event of Default resulting from such failure to comply with the reporting obligations is continuing on such 365th day, such additional interest shall cease to accrue and the Notes shall be subject to the other remedies provided under Article 6 hereof.
(f) The Issuer shall also hold quarterly conference calls for the Holders of Notes to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with the Issuer’s (or as applicable, any information is of any parent entity’s) equity investors and analysts). The conference call shall be following the last day of each fiscal quarter of the Issuer and not provided within later than 20 Business Days from the time periods specified that the Issuer distributes the financial information as set forth in Section 4.03(a). The Issuer shall issue a press release announcing the time and date of such conference call (which date may be the same date on which the press release is issued) and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call; provided, however, that such press release can be distributed solely to certified users of the website described in Section 4.03(c). Notwithstanding anything to the contrary in this Section 4.03, if the Issuer or any parent entity of the Issuer has furnished the Holders of Notes and filed with the SEC the reports described in this Section 4.03 and such information is subsequently providedwith respect to the Issuer or any parent entity, 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 to have been curedbe in compliance with the provisions of this Section 4.03.
Appears in 2 contracts
Samples: Indenture (Clear Channel Outdoor Holdings, Inc.), Indenture (Clear Channel Outdoor Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer will provide to the Trustee and, upon request, the Holders, a copy of all of the information and reports referred to below:
(i) within 120 days after the end of each fiscal year (or such shorter period as may be required by the Commission, or such longer period as may be permitted by Rule 12b-25 of the Exchange Act), annual reports on Form 10-K (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form); provided, that, if the Issuer 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 and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Issuer shall file with the SEC from provide audited annual consolidated financial statements and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on such other information that would have been required to be contained in a Form 10-K, K (or any successor or comparable form (form) if the Issuer had been a reporting company under it were subject to Section 13 or 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;,
(ii) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or such shorter period as may be required by the Commission, or such longer period as may be permitted by Rule 12b-25 of the Exchange Act), reports on Form 10-Q, Q (or any successor or comparable form (form); provided, that, if the Issuer had been a is not subject to the reporting company under requirements of Section 13 or 15(d) of the Exchange Act), containing substantially all the Issuer shall provide unaudited quarterly consolidated financial statements and such other information that would be have been required to be contained in a Form 10-Q, Q (or any successor or comparable form;) if it were subject to Section 13 or 15(d) of the Exchange Act,
(iii) promptly from time to time after the occurrence of a material an event which required to be therein reported (and in any event within 15 days following the time period specified for filing current reports on Form 8-K by the Commission), such other reports on Form 8-K (or any successor or comparable form); provided, that, if the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer shall provide such information that would have been required to be reported on contained in a Form 8-K (or any successor or comparable form (form) if the Issuer had been a reporting company under it were subject to Section 13 or 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or and
(iv) any successor or comparable form; in each caseother information, in a manner that complies in all material respects with the requirements specified in such form (except as described above or below documents and subject to exceptions consistent with the presentation of information in the Offering Memorandum); provided, however, that the Issuer shall not be so obligated to file such other reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer MPM would be required to file such information with the SEC Commission if it were subject to Section 13 or 15(d) of the Exchange Act. .
(b) In additionthe event that:
(i) the rules and regulations of the Commission permit MPM and any direct or indirect parent of MPM 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 MPM, or
(ii) any direct or indirect parent of MPM becomes a Note Guarantor, MPM shall be permitted to satisfy its foregoing obligations with respect to financial information relating to MPM by furnishing financial information relating to such parent; provided that such financial information is accompanied by consolidating information that explains in reasonable detail the extent not satisfied by differences between the foregoinginformation relating to such parent and any of its Subsidiaries other than MPM and its Subsidiaries, on the one hand, and the information relating to MPM, the Note Guarantors, if any, and the other Subsidiaries on a standalone basis, on the other hand.
(c) MPM 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, or otherwise permitted to furnish the Issuer shall Commission with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the 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 Act.
(b) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to . Notwithstanding the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes orforegoing, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 MPM will be deemed to have satisfied its obligations furnished such reports referred to above to the Trustee and the Holders if MPM has filed such reports with respect thereto at the Commission via the XXXXX filing system and such time and any Default with respect thereto shall be deemed to have been curedreports are publicly available.
Appears in 2 contracts
Samples: Indenture (Momentive Performance Materials Quartz, Inc.), Indenture (Momentive Performance Materials Quartz, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer Company will provide to the Trustee and, upon request, the Holders, a copy of all of the information and reports referred to below:
(i) within 120 days after the end of each fiscal year (or such shorter period as may be required by the Commission, or such longer period as may be permitted by Rule 12b-25 of the Exchange Act), annual reports on Form 10-K (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form); provided, that, 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 and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Issuer Company shall file with the SEC from provide audited annual consolidated financial statements and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on such other information that would have been required to be contained in a Form 10-K, K (or any successor or comparable form (form) if the Issuer had been a reporting company under it were subject to Section 13 or 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;,
(ii) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or such shorter period as may be required by the Commission, or such longer period as may be permitted by Rule 12b-25 of the Exchange Act), reports on Form 10-Q, Q (or any successor or comparable form (form); provided, that, if the Issuer had been a Company is not subject to the reporting company under requirements of Section 13 or 15(d) of the Exchange Act), containing substantially all the Company shall provide unaudited quarterly consolidated financial statements and such other information that would be have been required to be contained in a Form 10-Q, Q (or any successor or comparable form;) if it were subject to Section 13 or 15(d) of the Exchange Act,
(iii) promptly from time to time after the occurrence of a material an event which required to be therein reported (and in any event within 15 days following the time period specified for filing current reports on Form 8-K by the Commission), such other reports on Form 8-K (or any successor or comparable form); provided, that, if the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide such information that would have been required to be reported on contained in a Form 8-K (or any successor or comparable form (form) if the Issuer had been a reporting company under it were subject to Section 13 or 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or and
(iv) any successor or comparable form; in each caseother information, in a manner that complies in all material respects with documents and other reports which 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer Company would be required to file such information with the SEC Commission if it were subject to Section 13 or 15(d) of the Exchange Act. .
(b) In additionthe event that:
(i) the rules and regulations of the Commission 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 becomes a Note Guarantor, the Company shall be permitted to satisfy its foregoing obligations with respect to financial information relating to the extent not satisfied Company by furnishing financial information relating to such parent; provided that such financial information is accompanied by consolidating information that explains in reasonable detail the foregoingdifferences between the information relating to such parent and any of its Subsidiaries other than the Company and its Subsidiaries, on the one hand, and the information relating to the Company, the Note Guarantors, if any, and the other Subsidiaries on a standalone basis, on the other hand.
(c) The Company 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, or otherwise permitted to furnish the Issuer shall Commission with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the 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 Act.
(b) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to . Notwithstanding the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable reportforegoing, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 Company will be deemed to have satisfied its obligations furnished such reports referred to above to the Trustee and the Holders if the Company has filed such reports with respect thereto at the Commission via the XXXXX filing system and such time and any Default with respect thereto shall be deemed to have been curedreports are publicly available.
Appears in 2 contracts
Samples: Indenture (Momentive Performance Materials Inc.), Indenture (Momentive Performance Materials Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after After the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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.
(b) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.following reports:
(ci) If with respect to any reporting period(s(x) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable all annual and quarterly financial information statements substantially in forms that would be required by clauses (a)(i) to be contained in a filing with the SEC on Forms 10-K and (a)(ii) above shall include 10-Q of the Issuer, if the Issuer were required to file such forms, plus a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting substantially consistent with the section in the Offering Memorandum; (in y) with respect to the annual and quarterly information, a manner presentation of “Adjusted EBITDA” of the Issuer substantially consistent with the presentation of information included or incorporated by reference thereof in the Offering MemorandumMemorandum and derived from such financial information; and (z) selected with respect to the annual financial measures statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(ii) substantially the same 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 (only with respect to acquisitions that are “significant” at the 20% or greater level pursuant to clauses (1) and (2) of the definition of “Significant Subsidiary” under Rule 1-02 of Regulation S-X only), 4.01, 4.02(a) and (b), 5.01 and 5.02
(b) (with respect to the principal executive officer, president, principal financial officer, principal accounting officer and principal operating officer only) and (c) (other than with respect to information otherwise required or contemplated by subclause (3) of such Unrestricted Subsidiaries Item or by Item 402 of Regulation S-K) as in effect on the aggregate Issue Date if the Issuer were required to file such reports; provided, however, that (separate from A) no such report shall be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Issuer (or any Parent Entity or its Subsidiaries) and any director, manager or officer, of the Issuer (or any Parent Entity or its Subsidiaries), (B) the Issuer shall not be required to make available any information regarding the occurrence of any of the events set forth in clause (2) above 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 information positions or prospects of the Issuer and its Restricted Subsidiaries).
Subsidiaries taken as a whole, (dC) Notwithstanding anything herein to the contrary, the Issuer no such report will not be deemed to have failed required to comply with any of its obligations hereunder for purposes of clause (iiiRegulation G under the Exchange Act or Item 10(e) of Section 6.01(aRegulation S-K with respect to any “non-GAAP” financial information contained therein, (D) hereof no such report shall be required to comply with Regulation S-X including, without limitation, Rules 3-05, 3-09, 3-10, 3-16 or Article 11 thereof, (E) no such report shall be required to provide any information that is not otherwise similar to information currently included in the Offering Memorandum, (F) in no event shall such reports be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits under the SEC rules; (G) trade secrets and other information that could cause competitive harm to the Issuer and its Restricted Subsidiaries may be excluded from any disclosures; (H) such financial statements or information shall not be required to contain any “segment reporting”; (I) such financial statements and information may, at the election of the Issuer, be prepared in accordance with U.S. GAAP or IFRS; and (J) the Issuer may elect to change its fiscal year end, in which case it will provide the information required by clauses (1) and (2) of this paragraph in a report covering the transition period on substantially the same basis as if the Issuer were required to file a transition report with the SEC except that such transition report shall not be due until 60 days (in the case of a transition report on Form 10-Q/T) or 120 days (in the case of a transition report on Form 10-K/T), in each case after the later of the date on which the Issuer elected to change the fiscal year or the end of the transition period. All such annual reports for periods ending after the Issue Date shall be furnished within 120 days after the receipt end of the written notice delivered thereunder. To fiscal year (which fiscal year ends on September 30 of each calendar year as of the extent any information is not provided date of this Indenture, subject to clause (J) of the immediately preceding paragraph) to which they relate; all such quarterly reports for periods ending after the Issue Date shall be furnished within 60 days after the time periods end of the fiscal quarter to which they relate; and all such current reports for triggering events occurring after the Issue Date shall be furnished within 15 days of the due date specified in this Section 4.03 the SEC’s rules and such information is subsequently provided, regulations for reporting companies under the Exchange Act. The Issuer will be deemed to have satisfied furnished the reports referred to in subclauses (1) and (2) of this Section 4.03(a) if the Issuer or any Parent Entity has filed reports containing such information (or any such information of a Parent Entity pursuant to the fourth succeeding paragraph) with the SEC. If the Issuer or any Parent Entity does not file reports containing such information with the SEC, then the Issuer shall make available such information and such reports to any Holder of the Notes and to any beneficial owner of the Notes, in each case by posting such information on a password-protected website or online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any bona fide prospective investor, 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 as confidential; provided that the Issuer shall post such information thereon and make readily available any password or other login information to any such bona fide prospective investor, securities analyst or market maker; provided, however, that the Issuer may deny access to any competitively sensitive information otherwise to be provided pursuant to this covenant to any such Holder, beneficial owner, bona fide prospective investor, securities analyst or market maker to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its obligations with respect thereto at Subsidiaries; and provided, further, that such time Holders, beneficial owners, bona fide prospective investors, securities analysts and market makers shall agree to (A) treat all such reports (and information contained therein) as confidential, (B) not to use such reports (and the information contained therein) for any Default with respect thereto shall be deemed to have been curedpurpose other than their investment or potential investment in the Notes and (C) not publicly disclose any such reports (and the information contained therein).
Appears in 2 contracts
Samples: Indenture (Clarios International Inc.), Indenture (Clarios International Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 SECFor so long as any Notes are outstanding, the Issuer shall file with deliver to the SEC from Trustee a copy of all of the information and after the Issue Datereports referred to below:
(i) within 90 120 days after the end of each fiscal yearyear of the Reporting Entity (as defined below), annual reports the consolidated financial statements of the Reporting Entity for such year prepared in accordance with GAAP, together with a report thereon by the Reporting Entity’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 included in an Annual Report on Form 10-K, or any successor or comparable form K (as in effect on the Issue Date) filed with the SEC by the Reporting Entity (if the Reporting Entity were required to prepare and file such form);
(ii) within 60 days after the end of each fiscal quarter (other than the fourth fiscal quarter of each fiscal year, in respect of which the Issuer had been a reporting company under shall comply with clause (i) of this Section 15(d4.02(a)) of the Exchange ActReporting Entity, the condensed consolidated financial statements of the Reporting Entity for such quarter prepared in accordance with GAAP 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 included in a Quarterly Report on Form 10-Q (as in effect on the Issue Date) filed with the SEC by the Reporting Entity (if the Reporting Entity were required to prepare and file such form); 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 information that would be required to be contained therein, or required filed in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or 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 successor or comparable of the foregoing) on Form 8-K if the Reporting Entity were required to prepare and file such form; 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 Memorandum); provided, however, that no such current reports will be required to be delivered if the Issuer determines in its good faith judgement 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. In addition to providing such information to the Trustee, the Issuer shall not 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 so obligated provided pursuant to file such reports referred to in the foregoing clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing), in which event the Issuer shall make available by posting such information to its website or on IntraLinks or any comparable online data system or website. Notwithstanding the Trusteeforegoing, the Holders and prospective purchasers of Notes, in each case within 15 days after the time (A) neither the Issuer would nor another Reporting Entity will be required to file such information with 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 if it were subject with respect to Section 15(dany non-generally accepted accounting principles financial measures contained therein, (B) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, neither the Issuer shall furnish nor another Reporting Entity will be required to Holders and to securities analysts and prospective investorsprovide any financial information required by Rule 3-09, upon their requestRule 13-01 or Rule 13-02 of Regulation S-X or any exhibits or certifications required by Form 10-K, the Form 10-Q or Form 8-K (or any successor or comparable forms) or related rules under Regulation S-K, (C) information required to be delivered pursuant provided shall be subject to Rule 144A(d)(4exceptions, exclusions and other differences consistent with the presentation of financial and other information in the Offering Memorandum and (D) under the Securities Acttrade secrets and other proprietary information may be excluded from any disclosures.
(b) The Issuer may satisfy its obligations under financial statements, information and other documents required to be provided as described in this Section 4.03 with respect to financial information relating to 4.02 may be those of (i)(i) the Issuer by furnishing financial information relating to a or (i)(ii) any direct or indirect parent of the Issuer (including HGV Parentany such entity described in clause (i) as or (ii), a “Reporting Entity”), so long as any in the case of clause (ii) either (1) such direct or indirect parent entity of the Issuer provides a Guarantee 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 Notes orEquity Interests in, and its management, of the Issuer or (2) if such parent does not provide a Guaranteeotherwise, if such the financial information is so delivered shall be accompanied by selected financial metrics that show a reasonably detailed description of the material quantitative differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand.
(c) If The Issuer will make such information available electronically to prospective investors upon request. The Issuer 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 respect certain information pursuant to any reporting period(sRule 12g3-2(b) covered in of the applicable reportExchange Act, furnish to the holders of the Notes and to prospective investors, upon their request, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act Act.
(as such regulation is in effect on d) The Issuer shall hold quarterly conference calls, beginning with the first full fiscal quarter ending after the Issue Date)), then for all holders of the applicable annual Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and quarterly securities analysts to discuss such financial information no later than ten Business Days after the distribution of such information required by clauses (a)(ii) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures date of such Unrestricted Subsidiaries in conference call and either include all information necessary to access the aggregate (separate from the financial information 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). The foregoing requirements to hold conference calls shall be deemed satisfied if the Issuer holds quarterly calls for its public equity holders and its Restricted Subsidiaries)publicly announces the access information for such calls.
(de) Notwithstanding anything herein to the contrary, the 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 providedforegoing, 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 4.02 shall be deemed satisfied its obligations with respect thereto at such time and any Default with respect thereto shall the Issuer will be deemed to have been cureddelivered such reports and information referred to this Section 4.02 to the Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the posting of reports and information that would be required to be provided on the Issuer’s publicly available website. The Trustee shall have no obligation to monitor whether the Issuer posts such reports, information and documents on the Issuer’s website or the SEC’s XXXXX service, or collect any such information from 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.
(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 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 under this Indenture (as to which the Trustee is entitled to conclusively rely 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 2 contracts
Samples: Indenture (Chart Industries Inc), Indenture (Chart Industries Inc)
Reports and Other Information. (a) Notwithstanding that For so long as any Notes are outstanding, the Issuer may not be subject Issuers shall furnish to the reporting requirements Trustee a copy of Section 13 or 15(d) all of the Exchange Act or otherwise report on an annual information and quarterly basis on forms provided for such annual and quarterly reporting pursuant reports referred to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC from and after the Issue Datebelow:
(i) within 90 105 days after the end of each fiscal year (provided, for the fiscal year prior to or during which the Arrangement is consummated, within 120 days after the end of such fiscal year), annual reports of the Reporting Entity for such fiscal year containing the information that would have been required to be contained in an annual report on Form 10-K, K (or any successor or comparable form (form) if the Issuer Reporting Entity had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all except to the information that would be required extent permitted to be contained therein, excluded by the SEC or required in such successor or comparable formby IFRS;
(ii) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear (provided, for the fiscal quarters prior to or during which the Arrangement is consummated, within 90 days after the end of such fiscal quarters), 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 10-Q, Q (or any successor or comparable form (form) if the Issuer Reporting Entity had been a reporting company under Section 15(d) of the Exchange Act), except to the extent permitted to be excluded by the SEC or by IFRS; 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 quarterly of the information that would be required to be contained filed in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported current report on a Form 8-K or 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 successor or comparable form (of the foregoing) of Form 8-K if the Issuer Reporting Entity had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that no such current reports (or Items thereof or all or a portion of the Issuer financial statements that would have otherwise been required thereby) will be required to be delivered (or included) if the Issuers determine in their good faith judgment that such event (or information) is not material to holders or the business, assets, operations, financial position or prospects of the Issuers and the Restricted Subsidiaries, taken as a whole. In addition to providing such information and reports to the Trustee, the Issuers shall not 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 so obligated provided pursuant to file such reports referred to in 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) above 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 if the SEC does not permit with respect to an initial public offering of such filing, in which event the Issuer shall make available such information to the Trusteeentity’s Capital Stock, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would Issuers will not be required to file disclose any information about such initial public offering or take any other actions with respect to such initial public offering 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. 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, Form 10-Q or Form 8-K (or any successor or comparable forms) or related rules under Regulation S-K and (C) such reports shall not be required to present compensation or beneficial ownership information and such reports may be presented in accordance with IFRS prior to an Accounting Conversion Date.
(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 or (ii) any direct or indirect parent of the Company (any such entity described in clause (i) or (ii), a “Reporting Entity”), so long as in the case of clause (ii) either (1) such direct or indirect parent of the Company 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 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 Issuers and the Restricted Subsidiaries on a standalone basis, on the other hand.
(c) The Issuers will make such information with the SEC if it were subject and reports available to Section 15(d) of the Exchange Actprospective investors upon request. In addition, to the extent not satisfied by the foregoingThe Issuers shall, for so long as any Notes are outstandingremain 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 Issuer shall 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.
(bd) Notwithstanding the foregoing, the Issuers will be deemed to have furnished such reports and information referred to in this Section 4.02 to the Trustee, 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 (i) such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available or (ii) analogous reports pursuant to Canadian Securities Legislation on the Canadian Securities Administrators’ SEDAR website (or successor system) and such reports are publicly available. In addition, the requirements of this Section 4.02 shall be deemed satisfied and the Issuers will be deemed to have delivered such reports and information referred to this Section 4.02 to the Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the posting of reports and information that would be required to be provided on the Issuer’s website (or that of any of the Company’s parent companies, including the Reporting Entity).
(e) The Issuer may satisfy its obligations under this Section 4.03 Issuers will also hold quarterly conference calls, beginning with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent first full fiscal quarter ending after the Issue Date, for all holders of the Issuer (including HGV Parent) as long as Notes, prospective investors, market makers affiliated with any such parent entity of the Issuer provides a Guarantee initial purchaser of the Notes or, if such parent does not provide a Guarantee, if and securities analysts to discuss such financial information is accompanied by selected financial metrics that show no later than ten Business Days after the material differences (in the Issuer’s sole discretion) between the information relating to distribution of such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(ii) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures date of such Unrestricted Subsidiaries in conference call and either include all information necessary to access the aggregate (separate from the financial information call or inform holders of the Issuer Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and its Restricted Subsidiariessecurities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(df) Notwithstanding anything herein Delivery of such reports, information and documents to the contraryTrustee pursuant to this Section 4.02 is for informational purposes only and the Trustee’s receipt thereof shall not constitute actual or constructive notice or knowledge of any information contained therein, the Issuer will not be deemed to have failed to comply including each Issuers’ respective compliance with any covenant (as to which the Trustee is entitled to conclusively rely on Officer’s Certificates). The Trustee shall have no liability or responsibility for the content, filing or timeliness of its obligations hereunder for purposes of clause (iii) of Section 6.01(a) hereof until 120 days after any report delivered or filed under or in connection with this Indenture or 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 to have been curedtransactions contemplated hereunder.
Appears in 2 contracts
Samples: Indenture (Muzak Capital, LLC), Indenture (Muzak Capital, LLC)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue DateSEC:
(i) within 90 days after the end of each fiscal yearyear (or 120 days for the fiscal year ending December 31, 2011), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 60 days for the first three fiscal quarters ending after the Issue Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), Q containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after within five (5) Business Days of the occurrence of a material date on which an event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 subject, in the case of required financial information, to exceptions consistent with the presentation of financial information in the Offering Memorandum, to the extent filed within the times specified above); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC (A) if the SEC does not permit such filingfiling or (B) prior to the consummation of an exchange offer or the effectiveness of a Shelf Registration Statement as required by the applicable Registration Rights Agreement, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section Sections 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Issuer agrees that, for so long as any Notes are outstanding, the Issuer shall 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; provided, further, that any report required to be delivered under clause (i) or (ii) of this Section 4.03(a) prior to the completion of the first full fiscal year following the Issue Date shall not be required to comply with Regulation S-X or contain all purchase accounting adjustments relating to the Transactions to the extent it is not practicable to include any such adjustments in such report.
(b) The In the event that any direct or indirect parent company of the Issuer of which the Issuer is a Wholly-Owned Subsidiary becomes a Guarantor, the Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as such parent; provided, that, if and so long as any such parent entity of company shall have Independent Assets or Operations, the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected financial metrics consolidating information that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If . “Independent Assets or Operations” means, with respect to any reporting period(s) covered such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or each case amounts related to its investment in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Samples: Indenture (TC3 Health, Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC (with a copy to the Trustee unless filed and available on the SEC’s XXXXX website) from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 or incorporated by reference in the Offering Memorandum); provided, however, that if at any time the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC or if the SEC does not permit such filing, in which event then the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 10 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct HLT Parent or indirect HWP (or any parent entity of the Issuer (including HGV ParentHLT Parent or HWP) as long as HLT Parent or HWP (or any such parent entity of the Issuer HLT Parent or HWP) provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other handNotes.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 SECAct, the Issuer shall file with will provide to the SEC from Holders and after the Issue DateTrustee the following reports:
(i) within 90 105 days after the end of each fiscal year, an annual reports report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K, or any successor or comparable form (K under the Exchange Act if the Issuer had been a reporting company under Section 15(d) of the Exchange ActAct (but only to the extent similar information is included in the Offering Memorandum), containing substantially all including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the information annual financial statements by the Issuer’s independent registered public accounting firm; provided that would such annual report will not be required to be contain information required by Item 9A (controls and procedures), Items 10 (directors, executive officers and corporate governance) and 11 (executive compensation) (but in lieu of such information will include information of the type and scope contained therein, or required in such successor or comparable formthe Offering Memorandum under the caption “Management”) and Item 14 (principal accountant fees and services) of Form 10-K;
(ii) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form (Q under the Exchange Act if the Issuer had been a reporting company under Section 15(d) of the Exchange ActAct (but only to the extent similar information is included in the Offering Memorandum), containing substantially all including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly information financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that would such quarterly report shall not be required to be contained in contain the information required by Part I, Item 4 of Form 10-Q, or any successor or comparable form;Q (controls and procedures); and
(iii) promptly within ten Business Days after the occurrence of a material each event which that would have been required to be reported in a current report on a Form 8-K or any successor or comparable form (under the Exchange Act if the Issuer had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required to be contained in a current report on Form 8-K under the Exchange Act if the Issuer had been a reporting company under the Exchange Act; provided that such reports will only be required to contain information required by Items 1.01, 1.02, 1.03, 2.01, 2.03, 2.04, 2.05, 2.06, 4.01, 4.02, 5.01 (but only to the extent that a change of control has occurred that constitutes a Change of Control or a “change of control” under any Credit Facility or any other Material Indebtedness), 5.02 (but only with respect to directors, the chief executive officer, the chief financial officer and the chief administrative officer and provided that the information required by Item 5.02 (d), (e) or (f) will only be required to be included to the extent similar information is contained in the Offering Memorandum under the caption “Management”) and Item 9.01 (a) and (b) of Form 8-K; provided further, however, that no such current report will be required to be provided if the Issuer determines in its good faith judgment that such event is not material to holders of the Notes or the business, financial condition, results of operations or prospects of the Issuer and its subsidiaries; provided, however, that, so long as the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act), a current report relating such reports (a) will not be required to such event on Form 8comply 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 any successor Item 601 of Regulation S-K (with respect to exhibits) and (b) will not be required to contain a separate financial footnote for Guarantors and non-Guarantor Subsidiaries contemplated by Rule 3-10 or comparable form; in each case, in a manner that complies in all material respects with Rule 3-16 of Regulation S-X promulgated by the requirements specified in such form SEC (except as described above or below summary financial information with respect to non-Guarantor Subsidiaries of the type and subject to exceptions consistent with the presentation of information scope included in the Offering MemorandumMemorandum will be required); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer shall 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 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 non-public and may be maintained by the Issuer or a third-party) to which access will be given to Holders and 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) that certify their status as such to the reasonable satisfaction of the Issuer. In addition, no later than 15 Business Days after the date the annual and quarterly financial information for the prior fiscal period have been furnished pursuant to clauses (i) or (ii) of this Section 4.03(a), the Issuer shall also hold live quarterly conference calls with the opportunity to ask questions of management. No fewer than five Business Days prior to the date such conference call is to be held, the Issuer 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, 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 Issuer) 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 Issuer (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(b) The 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 annual and quarterly financial information required by the preceding paragraph shall include a reasonably detailed presentation, as determined in good faith by Senior Management of the 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.
(c) In the event that any direct or indirect parent company of the Issuer becomes a Guarantor of the Notes, the Issuer may satisfy its obligations under this Section 4.03 with respect covenant to provide consolidated financial information relating to of the Issuer by furnishing consolidated financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the ; provided that (1) such financial statements are accompanied by consolidating financial information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable reportfor such parent, the Issuer’s Unrestricted , the Restricted Subsidiaries (other than that are Guarantors and the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1non-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Guarantor Subsidiaries in the aggregate manner prescribed by the SEC and (separate from the financial information 2) such parent is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the Issuer and its Restricted Subsidiaries)Capital Stock of the Issuer.
(d) Notwithstanding anything herein Delivery to the contraryTrustee of any reports and other information pursuant to this Section 4.03 is for informational purposes only, and the Issuer will Trustee’s receipt of such reports and information shall not be deemed to have failed to comply constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance 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 covenants under 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 to have been curedIndenture.
Appears in 1 contract
Samples: Indenture (BMC Stock Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding following the Issue Date, Issuer may not be subject shall furnish to the reporting requirements of Section 13 or 15(dHolders:
(1) of the Exchange Act or otherwise report on an (x) all annual and quarterly basis on financial statements substantially in forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after a filing with the end of each SEC on Forms 10-K and 10-Q of the first three fiscal quarters of each fiscal yearIssuer, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been were required to file such forms, plus a reporting company under Section 15(d“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 and Adjusted EBITDA of the Exchange Act)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) within ten Business Days after the occurrence of an event required to be therein reported, such other information containing substantially all quarterly the same information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after filings with the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event 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) (only with respect to the principal executive officer, president, principal financial officer, principal accounting officer and principal operating officer) and (c) (other than with respect to information otherwise required or any successor or comparable form; contemplated by Item 402 of Regulation S-K promulgated by the SEC) as in each case, in a manner that complies in all material respects with effect on the requirements specified in Issue Date if the Issuer were required to file such form (except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Memorandum)reports; provided, however, that (i) in no event shall such financial statements, information or reports be required to comply with (w) Rule 3-10 of Regulation S-X promulgated by the SEC (or such other rule or regulation that amends, supplements or replaces such Rule 3-10, including for the avoidance of doubt, Rules 13-01 or 13-02 of Regulation S-X promulgated by the SEC), (x) Rule 3-09 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-09), (y) Rule 3-16 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-16) or (z) any requirement to otherwise include any schedules or separate financial statements of any of Subsidiaries of the Issuer shall not be so obligated to file such reports referred to in clauses (i)or any Parent Entity, Affiliates or equity method investees, (ii) and in no event shall such financial statements, information or 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, (iii) no such financial statements, information or reports referenced under clause (2) above with the SEC shall be required to be furnished if the SEC does Issuer determines in its good faith judgment that such event is not permit material to the Holders or the business, assets, operations or financial position of the Issuer and its Restricted Subsidiaries, taken as a whole, (iv) in no event shall such filingfinancial statements, information or reports be required to include any information that is not otherwise similar to information currently included in the Offering Memorandum, other than with respect to information or reports provided under clause (2) above and (v) in no event shall information or reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available and, in any case with respect to pro forma financial statements, to include only pro forma revenues, Consolidated EBITDA and capital expenditures in lieu thereof.
(b) All such annual information and reports shall be furnished within 90 days after the end of the fiscal year to which event they relate, and all such quarterly information and reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate.
(c) At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the quarterly and annual financial information required by Section 10.09(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 Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Issuer.
(d) The Issuer shall 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 Trustee, the Holders and prospective purchasers of Notes, in each case by posting such information on its website, on the website of the SEC, 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 Holder, any bona fide prospective investor in the Notes (as determined in the Issuer’s sole discretion and which prospective investors shall, in any event, be limited to “qualified institutional buyers” within 15 days after the time meaning of Rule 144A of the Securities Act or non-U.S. persons that certify their status as such to the reasonable satisfaction of the Issuer), 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 as confidential or accesses such information on Intralinks or any comparable password-protected online data system which will 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 Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that the Issuer may deny access to any competitively-sensitive information otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer 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). The Issuer (or a Parent Entity) shall 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 ten Business Days after distribution of such financial information (which conference call, for the avoidance of doubt, may be held prior to such time that the annual or quarterly financial statements required by Section 10.09(a) for such reporting period are furnished to file such Holders), which call may be the same as any call for the Issuer’s or any Parent Entity’s equity holders.
(e) The Issuer shall provide S&P and Xxxxx’x (and their respective successors) with information with on a periodic basis as S&P or Xxxxx’x, as the SEC if it were subject case may be, shall reasonably require in order to Section 15(d) maintain public ratings of the Exchange ActNotes. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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 so long as the Notes are not freely transferable under the Securities Act.
(bf) The Issuer may satisfy its obligations under this Section 4.03 10.09 with respect to the financial information relating to the Issuer by furnishing financial and other information relating to a any Parent Entity instead of the Issuer; provided that to the extent such Parent Entity holds assets (other than its direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (interest in the Issuer’s sole discretion) that exceeds the lesser of (i) 1% of consolidated revenues of such Parent Entity and (ii) 1% of the total consolidated revenue for the preceding fiscal year of such Parent Entity, then such information related to such Parent Entity shall be accompanied by summary financial information, which may be unaudited and/or in narrative form, 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 Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(cg) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above The Issuer shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed furnished the financial statements and other information referred to comply in Section 10.09(a)(1) and (2) if the Issuer or any Parent Entity has filed reports containing such information (or any such information of a Parent Entity in accordance with any of its obligations hereunder for purposes of clause Section 10.09(f)) with the SEC.
(iiih) 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 10.09 and such information is subsequently provided, the Issuer will 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.
(i) To the extent the Issuer delivers such reports, information and documents to the Trustee, such delivery shall be for informational purposes only and the Trustee’s receipt of such reports, information and 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).
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer may not be subject Company shall furnish to the reporting requirements of Section 13 or 15(dHolders (with a copy to the Trustee):
(1) of the Exchange Act or otherwise report on an (A) all annual and quarterly basis on financial statements substantially in forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained thereinin a filing with the SEC on Forms 10-K and 10-Q of the Company, or if the Company were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (B) with respect to the annual and quarterly information, a presentation of EBITDA and Adjusted EBITDA of the Company substantially consistent with the presentation thereof in the Offering Circular and derived from such successor or comparable form;financial information, and (C) with respect to the annual financial statements only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
(ii2) within 45 days promptly after the end occurrence of each of the first three fiscal quarters of each fiscal yearan event required to be therein reported, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), such other information containing substantially all quarterly the same information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after filings with the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event 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 promulgated by the SEC) as in effect on the Effective Date if the Company were required to file such reports; provided, however, that no such current report will be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Company (or any successor of its Subsidiaries) and any director, manager or comparable form; in each case, in a manner that complies in all material respects with executive officer of the requirements specified in such form Company (except as described above or below and subject to exceptions consistent with the presentation any of information in the Offering Memorandumits Subsidiaries); provided, however, that the Issuer (i) in no event shall not be so obligated to file such reports referred be required to in clauses comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Company, the Guarantors or other Subsidiaries the shares of which are pledged to secure the Notes or any Guarantee that would be required under (i)a) Rule 3-09 of Regulation S-X, (b) Rule 3-10 of Regulation S-X or (c) Rule 3-16 of Regulation S-X, respectively, promulgated by the SEC, (ii) and 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, (iii) no such reports referenced under clause (2) above with the SEC shall be required to be furnished if the SEC does Company determines in its good faith judgment that such event is not permit such filing, in which event the Issuer shall make available such information material to the TrusteeHolders or the business, assets, operations or financial position of the Holders Company and prospective purchasers the Restricted Subsidiaries, taken as a whole, (iv) in no event shall such reports be required to include any information that is not otherwise similar to information included in the Offering Circular, other than with respect to reports provided under clause (2) above and (v) in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of Notesany agreements, in each case within 15 days after the time the Issuer financial statements or other items that would be required to file be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available and, in any case with respect to pro forma financial statements, to include only pro forma revenues, Consolidated EBITDA and capital expenditures in lieu thereof. All such information with annual reports shall be furnished within 120 days after the SEC if it were subject to Section 15(d) end of the Exchange Actfiscal year to which they relate, and all such quarterly reports shall be furnished within 60 days after the end of the fiscal quarter to which they relate; provided that the quarterly reports for the first fiscal quarter ending after the Effective Date shall be furnished within 75 days after the end of such fiscal quarter. In additionAt any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, 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 Company and Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Company. Notwithstanding any provision to the contrary in this Indenture, to the extent any of the information required to be furnished pursuant to Section 4.03(a) is not so furnished within the time periods specified above and is subsequently furnished, the Company will be deemed to have satisfied by the foregoing, for so its obligations with respect thereto with effect from such time and any Default or Event of Default with respect thereto shall be deemed to have been cured with effect from such time.
(b) So long as any Notes are outstanding, the Issuer Company shall also 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, securities analysts providing analysis of investment in the Notes and market makers, in each case by posting such information on its website, 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 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 as confidential or accesses such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that the Company shall post such information thereon and make readily available any password or other login information to any such Holder, prospective investor, securities analyst or market maker; provided, further, however, the Company may deny access to any competitively-sensitive information otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Company and its Subsidiaries to the extent that the Company determines in good faith that the provision of such information to such Person would be competitively harmful to the Company and its Subsidiaries; and provided, still 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 (but shall be authorized to trade the Company’s securities) and (iii) not publicly disclose any such reports (and the information contained therein). The Company 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 two (2) Business Days after distribution of such financial information; provided that the conference call for the fiscal quarter ending prior to the Effective Date shall be held no later than ten (10) Business Days after distribution of the financial information for such quarter.
(c) To the extent not satisfied by this Section 4.03, the Company 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 so long as the Notes are not freely transferable under the Securities Act.
(bd) The Issuer Company may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer Company by furnishing financial information relating to a direct or indirect parent any Parent Entity of the Issuer (including HGV Parent) as long as any such parent entity Company instead of the Issuer provides a Guarantee of Company; provided that to the Notes orextent financial information related to such Parent Entity is provided, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics consolidating information, which may be unaudited, that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to of such parentParent Entity, on the one hand, and the information relating to the Issuer Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(ce) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 The Company shall be deemed to have been curedfurnished the reports referred to in Sections 4.03(a)(i) and (ii) if the Company or any Parent Entity of the Company has filed reports containing such information with the SEC.
(f) Delivery of information and documents provided for under this Section 4.03 to 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 their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no responsibility whatsoever to determine whether any filing or posting referred to in this Section 4.03 has occurred.
(g) Notwithstanding anything to the contrary set forth in this Section 4.03, if at any time the Company or any Parent Entity 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 applicable securities laws or the SEC’s “gun jumping” rules.
Appears in 1 contract
Samples: Indenture (MultiPlan Corp)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal yearyear (or 120 days for the fiscal year ending December 31, 2012), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 60 days for the first three fiscal quarters ending after the Issue Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), Q containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC (A) if the SEC does not permit such filingfiling or (B) prior to the consummation of an exchange offer or the effectiveness of a Shelf Registration Statement as required by the Registration Rights Agreement, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section Sections 13 or 15(d) of the Exchange Act; provided, further, that until such time as the consummation of an exchange offer or the effectiveness of a shelf registration statement as required by the Registration Rights Agreement, the Issuer shall not be required to (i) in the case of (x) clauses (i) and (ii) provide any information beyond the financial information that would be required to be contained in an annual or quarterly report on Form 10-K or 10-Q, as applicable, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and (y) clause (iii) make available any information regarding director and management compensation or the occurrence of any of the events set forth in Items 1.04, 2.01, 2.05, 2.06, 3 (other than Item 3.03), 5.01, 5.02(e)-(f), 5.03-5.08, 0, 0, 0 xx 0 xx Xxxx 0-X, (xx) make available any information regarding the occurrence of any of the events set forth in Items 1.01 or 1.02 of Form 8-K 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, (iii) 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), (iv) comply with Regulation S-X or contain all purchase accounting adjustments relating to the Transactions to the extent it is not practicable to include any such adjustments in such report or (v) provide any information that is not otherwise similar to information currently included in the offering memorandum. In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002 or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K prior to the consummation of an exchange offer or the effectiveness of a shelf registration statement. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer shall 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct Holdings (or indirect any parent entity of the Issuer (including HGV ParentHoldings) as long as Holdings (or any such parent entity of the Issuer Holdings) provides a Guarantee of the Notes orNotes; provided, that, if and so long as such parent does not provide a Guaranteecompany shall have Independent Assets or Operations, if such financial information the same is accompanied by selected financial metrics consolidating information that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to Holdings (or such parentparent entity, as the case may be), on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If . “Independent Assets or Operations” means, with respect to Holdings or any reporting period(s) covered such parent company, that Holdings or such parent company’s total assets or revenues, determined in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (accordance with GAAP and as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect shown on the Issue Date))most recent financial statements of Holdings or such parent company, then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Managementis more than 3.0% of Holdings or such parent company’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries)corresponding consolidated amount.
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Samples: Indenture (APX Group Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer 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, the Issuer Parent shall file with the SEC (with a copy to the Trustee unless filed and available on the SEC’s XXXXX website) from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer Parent had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer Parent had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer Parent had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 or incorporated by reference in the Offering Memorandum); provided, however, that the Issuer Parent shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer Parent shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer Parent would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer Parent may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer Parent by furnishing financial information relating to a direct Holdings (or indirect any parent entity of the Issuer (including HGV ParentHoldings) as long as Holdings (or any such parent entity of the Issuer Holdings) provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other handNotes.
(c) If with respect to any reporting period(s) covered in the applicable report, the IssuerParent’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the Issuer Parent 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 Parent 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.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal yearyear (or 120 days for the fiscal year ending December 31, 2012), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 60 days for the first three fiscal quarters ending after the Issue Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), Q containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 MemorandumCircular); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC (A) if the SEC does not permit such filingfiling or (B) prior to the consummation of an exchange offer or the effectiveness of a Shelf Registration Statement as required by the Registration Rights Agreement, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section Sections 13 or 15(d) of the Exchange Act; provided, further, that until such time as the consummation of an exchange offer or the effectiveness of a shelf registration statement as required by the Registration Rights Agreement, the Issuer shall not be required to (i) in the case of (x) clauses (i) and (ii) provide any information beyond the financial information that would be required to be contained in an annual or quarterly report on Form 10-K or 10-Q, as applicable, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and (y) clause (iii) make available any information regarding director and management compensation or the occurrence of any of the events set forth in Items 1.04, 2.01, 2.05, 2.06, 3 (other than Item 3.03), 5.01, 5.02(e)-(f), 5.03-5.08, 0, 0, 0 xx 0 xx Xxxx 0-X, (xx) make available any information regarding the occurrence of any of the events set forth in Items 1.01 or 1.02 of Form 8-K 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 or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries taken as a whole, (iii) 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 Circular), (iv) comply with Regulation S-X or contain all purchase accounting adjustments relating to the Acquisition Transactions to the extent it is not practicable to include any such adjustments in such report or (v) provide any information that is not otherwise similar to information currently included in the Offering Circular. In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002 or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K prior to the consummation of an exchange offer or the effectiveness of a shelf registration statement. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer shall 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. Delivery of reports, information and documents (including, without limitation, reports contemplated in this Section 4.03) to the Trustee is for information 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 compliance of the Issuer, the Guarantors and Holdings with covenants under this Indenture, the Notes, the Guarantees and the Security Documents, as to which the Trustee shall be entitled to rely exclusively on Officers’ Certificates.
(b) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct Holdings (or indirect any parent entity of the Issuer (including HGV ParentHoldings) as long as Holdings (or any such parent entity of the Issuer Holdings) provides a Guarantee of the Notes orNotes; provided, that, if and so long as such parent does not provide a Guaranteecompany shall have Independent Assets or Operations, if such financial information the same is accompanied by selected financial metrics consolidating information that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to Holdings (or such parentparent entity, as the case may be), on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If . “Independent Assets or Operations” means, with respect to Holdings or any reporting period(s) covered such parent company, that Holdings or such parent company’s total assets or revenues, determined in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (accordance with GAAP and as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect shown on the Issue Date))most recent financial statements of Holdings or such parent company, then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Managementis more than 3.0% of Holdings or such parent company’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries)corresponding consolidated amount.
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Samples: Indenture (APX Group Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer may not be subject Company shall furnish to the reporting requirements of Section 13 or 15(dHolders (with a copy to the Trustee):
(1) of the Exchange Act or otherwise report on an (A) all annual and quarterly basis on financial statements substantially in forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained thereinin a filing with the SEC on Forms 10-K and 10-Q of the Company, or if the Company were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (B) with respect to the annual and quarterly information, a presentation of EBITDA and Adjusted EBITDA of the Company substantially consistent with the presentation thereof in the Offering Circular and derived from such successor or comparable form;financial information, and (C) with respect to the annual financial statements only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
(ii2) within 45 days promptly after the end occurrence of each of the first three fiscal quarters of each fiscal yearan event required to be therein reported, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), such other information containing substantially all quarterly the same information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after filings with the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event 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 promulgated by the SEC) as in effect on the Effective Date if the Company were required to file such reports; provided, however, that no such current report will be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Company (or any successor of its Subsidiaries) and any director, manager or comparable form; in each case, in a manner that complies in all material respects with executive officer of the requirements specified in such form Company (except as described above or below and subject to exceptions consistent with the presentation any of information in the Offering Memorandumits Subsidiaries); provided, however, that the Issuer (i) in no event shall not be so obligated to file such reports referred be required to in clauses comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Company, the Guarantors or other Subsidiaries the shares of which are pledged to secure the Notes or any Guarantee that would be required under (i)a) Rule 3-09 of Regulation S-X, (b) Rule 3-10 of Regulation S-X or (c) Rule 3-16 of Regulation S-X, respectively, promulgated by the SEC, (ii) and 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, (iii) no such reports referenced under clause (2) above with the SEC shall be required to be furnished if the SEC does Company determines in its good faith judgment that such event is not permit such filing, in which event the Issuer shall make available such information material to the TrusteeHolders or the business, assets, operations or financial position of the Holders Company and prospective purchasers the Restricted Subsidiaries, taken as a whole, (iv) in no event shall such reports be required to include any information that is not otherwise similar to information included in the Offering Circular, other than with respect to reports provided under clause (2) above and (v) in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of Notesany agreements, in each case within 15 days after the time the Issuer financial statements or other items that would be required to file be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available and, in any case with respect to pro forma financial statements, to include only pro forma revenues, Consolidated EBITDA and capital expenditures in lieu thereof. All such information with annual reports shall be furnished within 120 days after the SEC if it were subject to Section 15(d) end of the Exchange Actfiscal year to which they relate, and all such quarterly reports shall be furnished within 60 days after the end of the fiscal quarter to which they relate. In additionAt any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, 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 Company and Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Company. Notwithstanding any provision to the contrary in this Indenture, to the extent any of the information required to be furnished pursuant to Section 4.03(a) is not so furnished within the time periods specified above and is subsequently furnished, the Company will be deemed to have satisfied by the foregoing, for so its obligations with respect thereto with effect from such time and any Default or Event of Default with respect thereto shall be deemed to have been cured with effect from such time.
(b) So long as any Notes are outstanding, the Issuer Company shall also 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, securities analysts providing analysis of investment in the Notes and market makers, in each case by posting such information on its website, 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 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 as confidential or accesses such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that the Company shall post such information thereon and make readily available any password or other login information to any such Holder, prospective investor, securities analyst or market maker; provided, further, however, the Company may deny access to any competitively-sensitive information otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Company and its Subsidiaries to the extent that the Company determines in good faith that the provision of such information to such Person would be competitively harmful to the Company and its Subsidiaries; and provided, still 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 (but shall be authorized to trade the Company’s securities) and (iii) not publicly disclose any such reports (and the information contained therein). The Company 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 two (2) Business Days after distribution of such financial information.
(c) To the extent not satisfied by this Section 4.03, the Company 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 so long as the Notes are not freely transferable under the Securities Act.
(bd) The Issuer Company may satisfy its obligations under this Section 4.03 with respect to financial information and a conference call relating to the Issuer Company by furnishing financial information and holding a conference call relating to a direct (i) MultiPlan or indirect parent (ii) any Parent Entity of the Issuer (including HGV Parent) as long as any such parent entity Company instead of the Issuer provides a Guarantee of Company; provided that to the Notes orextent financial information related to MultiPlan or such Parent Entity, if as applicable, is provided, such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics consolidating information, which may be unaudited and be contained in a separate document, that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to of MultiPlan and its Subsidiaries or such parentParent Entity and its Subsidiaries, as applicable, on the one hand, and the information relating to the Issuer Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(ce) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 The Company shall be deemed to have been curedfurnished the reports referred to in Sections 4.03(a)(i) and (ii) if the Company or any Parent Entity of the Company has filed reports containing such information with the SEC.
(f) Delivery of information and documents provided for under this Section 4.03 to 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 hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no responsibility whatsoever to determine whether any filing or posting referred to in this Section 4.03 has occurred.
(g) Notwithstanding anything to the contrary set forth in this Section 4.03, if at any time the Company or any Parent Entity 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 applicable securities laws or the SEC’s “gun jumping” rules.
Appears in 1 contract
Samples: Indenture (MultiPlan Corp)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC (with a copy to the Trustee unless filed and available on the SEC’s EDGAR website) from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 or incorporated by reference in the Offering Memorandum); provided, however, that if at any time the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC or if the SEC does not permit such filing, in which event then the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 10 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct HLT Parent or indirect HWP (or any parent entity of the Issuer (including HGV ParentHLT Parent or HWP) as long as HLT Parent or HWP (or any such parent entity of the Issuer HLT Parent or HWP) provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other handNotes.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering MemorandumIssuer’s historical practice) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 SECSo long as any Securities are outstanding, the Issuer shall file with will furnish to the SEC from and Trustee within 15 days after each of the Issue Dateperiods set forth below:
(i) within 90 days after the end of each fiscal year, annual reports containing substantially all of the information that would have been required to be contained in an Annual Report on Form 10-KK under the Exchange Act of the Issuer, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable formform as if the Issuer had been a reporting company under the Exchange Act for such period, 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 independent registered public accounting firm;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q, or any successor or comparable form (if Q of the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (as if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)Act for such period, including a current report relating "Management's Discussion and Analysis of Financial Condition and Results of Operations", subject to normal year-end adjustments and the absence of footnotes; and
(iii) promptly from time to time after the occurrence of an event required to be therein reported, such event other reports on Form 8-K K, or any successor or comparable formform as if the Issuer had been a reporting company under the Exchange Act for such period; provided, however, that no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders of the Securities or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole; 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 Memorandum)form; provided, however, provided that the Issuer shall not make available such information to securities analysts and prospective purchasers of Securities, in addition to providing such information to the Trustee and the Holders of the Securities, including by posting such information on a password protected online data system requiring user identification or the website of the Issuer or any of its parent companies (which may be password protected so obligated long as the password is made promptly available by the Issuer to file the Trustee, the Holders of the Securities and such prospective purchasers upon request) provided, further, that such reports referred required pursuant to in clauses (i), (ii) and (iii) above with the SEC if the SEC does (a) shall not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file comply with Section 302, Section 404 or 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, or related Items 307, 308 and 308T 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 comply with Items 402, 403, 406 and 407 of Regulation S-K promulgated by the SEC, (c) shall not be required to comply with Rule 3- 10 or Rule 3-16 of Regulation S-X promulgated by the SEC and (d) shall not be required to include any exhibits that would have been required to be filed pursuant to Item 601 of Regulation S-K promulgated by the SEC. The Trustee shall have no obligation whatsoever to determine whether or not such information with the SEC if it were subject to Section 15(d) of the Exchange Acthas been posted. In addition, to the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes Securities are outstanding, the Issuer shall it will furnish to Holders and to securities analysts and prospective 55 investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) The If the Issuer 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 Issuer, then the annual and quarterly information required above shall include a presentation of selected financial metrics (in the Issuer's sole discretion) of such Unrestricted Subsidiaries as a group in the "Management's Discussion and Analysis of Financial Condition and Results of Operations."
(c) Notwithstanding the foregoing, the Issuer may satisfy its obligations under this Section 4.03 4.02 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of Issuer; provided that if and so long as such Parent Company has Independent Assets or Operations, the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected consolidating financial metrics information (which need not be audited) that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the financial information relating to such parent, on the one hand, and the financial information relating to the Issuer and its the Restricted Subsidiaries on a stand-alone basis, on the other hand.
(cd) If Delivery of such reports, information and documents to 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 Issuer's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates with respect thereto). The Trustee shall have no responsibility for the filing, timeliness or content of such reports. Additionally, the Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer's compliance with the covenants or with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (reports or other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent documents filed with the presentation of information included SEC or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries)XXXXX or any website or data site under this Indenture.
(de) Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iiiSection 6.01(c) 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 4.02 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 to have been cured.
(f) Notwithstanding anything to the contrary set forth above, if the Issuer (or any direct or indirect parent of the Issuer) has made available through XXXXX or SEC filings the reports and information described in the preceding paragraphs with respect to Issuer (or, if applicable, any direct or indirect parent of the Issuer), the Issuer shall be deemed to be in compliance with the provisions of this Section 4.02.
Appears in 1 contract
Samples: Indenture (Party City Holdco Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 SECSo long as any Securities are outstanding, the Issuer shall file with will furnish to the SEC from and Trustee within 15 days after each of the Issue Dateperiods set forth below:
(i) within 90 days after the end of each fiscal year, annual reports containing substantially all of the information that would have been required to be contained in an Annual Report on Form 10-KK under the Exchange Act of the Issuer, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable formform as if the Issuer had been a reporting company under the Exchange Act for such period, 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 independent registered public accounting firm;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q, or any successor or comparable form (if Q of the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (as if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)Act for such period, including a current report relating “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” subject to normal year-end adjustments and the absence of footnotes; and
(iii) promptly from time to time after the occurrence of an event required to be therein reported, such event other reports on Form 8-K K, or any successor or comparable formform as if the Issuer had been a reporting company under the Exchange Act for such period; provided, however, that no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders of the Securities or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole; in each case, in a manner that complies in all material respects with the requirements specified in such form form; provided that the Issuer shall make available such information to securities analysts and prospective purchasers of Securities, in addition to providing such information to the Trustee and the Holders of the Securities, including by posting such information on a password protected online data system requiring user identification or the website of the Issuer or any of its Parent Companies (except which may be password protected so long as described above or below the password is made promptly available by the Issuer to the Trustee, the Holders of the Securities and subject to exceptions consistent with the presentation of information in the Offering Memorandumsuch prospective purchasers upon request); provided, howeverfurther, that the Issuer shall not be so obligated to file such reports referred required pursuant to in clauses (i), (ii) and (iii) above with the SEC if the SEC does (a) shall not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file comply with Section 302, Section 404 or 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, or related Items 307 and 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 comply with Items 402, 403, 406 and 407 of Regulation S-K promulgated by the SEC, (c) shall not be required to comply with Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC and (d) shall not be required to include any exhibits that would have been required to be filed pursuant to Item 601 of Regulation S-K promulgated by the SEC. The Trustee shall have no obligation whatsoever to determine whether or not such information with the SEC if it were subject to Section 15(d) of the Exchange Acthas been posted. In addition, to the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes Securities are outstanding, the Issuer shall 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) The If the Issuer 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 Issuer, then the annual and quarterly information required above shall include a presentation of selected financial metrics (in the Issuer’s sole discretion) of such Unrestricted Subsidiaries as a group in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Notwithstanding the foregoing, the annual and quarterly information required pursuant to Section 4.02(a) shall include a presentation of total revenues, Adjusted EBITDA and total assets of Anagram Holdings, LLC and its subsidiaries on a consolidated basis, together with a reconciliation of Adjusted EBITDA to consolidated net income or operating income of Anagram Holdings, LLC, which presentation shall be substantially consistent with the presentation of such financial information in the Offering Memorandum (as determined by the Issuer in its sole discretion).
(c) Notwithstanding the foregoing, the Issuer may satisfy its obligations under this Section 4.03 4.02 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of Issuer; provided that if and so long as such Parent Company has Independent Assets or Operations, the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected consolidating financial metrics information (which need not be audited) that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the financial information relating to such parent, on the one hand, and the financial information relating to the Issuer and its the Restricted Subsidiaries on a stand-alone basis, on the other hand.
(cd) If Delivery of such reports, information and documents to 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 Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates with respect thereto). The Trustee shall have no responsibility for the filing, timeliness or content of such reports. Additionally, the Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with the covenants or with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (reports or other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent documents filed with the presentation of information included SEC or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries)XXXXX or any website or data site under this Indenture.
(de) Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iiiSection 6.01(c) 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 4.02 and such information is subsequently provided, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time time, and any Default with respect thereto shall be deemed to have been cured.
(f) Notwithstanding anything to the contrary set forth above, if the Issuer (or any direct or indirect parent of the Issuer) has made available through XXXXX or SEC filings the reports and information described in the preceding paragraphs with respect to Issuer (or, if applicable, any direct or indirect parent of the Issuer), the Issuer shall be deemed to be in compliance with the provisions of this Section 4.02.
Appears in 1 contract
Samples: Indenture (Party City Holdco Inc.)
Reports and Other Information. (a) So long as any Notes are outstanding, EPE Holdings will furnish to the Trustee and the holders:
(i) within 15 days after the time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports of the Reporting Entity for such fiscal year containing the information that would have been required to be contained in an annual report on Form 10-K (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;
(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 10-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 specified in the SEC’s rules and regulations for filing current reports on 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, Item 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 EPE Holdings had been a reporting company under the Exchange Act; provided, however, that no such current reports will be required to be furnished if EPE Holdings determines in its good faith judgment that such event is not material to holders or the business, assets, operations, financial position or prospectus of EPE Holdings and its Restricted Subsidiaries, taken as a whole. In addition to providing such information to the Trustee, EPE 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. If EPE 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 EPE 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 EPE Holdings and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(b) Notwithstanding that the Issuer may foregoing, (i) EPE Holdings will not be required to furnish any information, certificates or reports that would otherwise be 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, 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 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 (iii) such reports 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) EPE Holdings, (ii) Opco or (iii) any direct or indirect parent of EPE Holdings (any such entity, a ‘‘Reporting Entity’’), so long as in the case of (ii) and (iii), EPE Holdings or such direct or indirect parent of EPE 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 Opco; provided that, if the financial information so furnished relates to Opco or such direct or indirect parent of EPE Holdings, the same is accompanied by a reasonably detailed description of the quantitative differences between the information relating to Opco or to such parent, on the one hand, and information relating EPE Holdings and its Restricted Subsidiaries on a standalone basis, on the other hand. In addition, EPE Holdings will make such information available to prospective investors upon request.
(d) In addition, EPE Holdings shall, for so long as any Notes remain outstanding during any period when it is not 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 permitted to furnish the SEC with certain information pursuant to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10Rule 12g3-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d2(b) of the Exchange Act), containing substantially all furnish to the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each holders of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 . EPE Holdings will also hold quarterly conference calls, beginning with respect the fiscal quarter ending March 31, 2013, for all holders and securities analysts to discuss such financial information relating 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 Issuer by furnishing financial date of each such conference call, announcing the time and date of such conference call and either including all information relating necessary to a direct access the call or indirect parent informing holder of the Issuer (including HGV Parent) as long as Notes, prospective investors, market makers affiliated with any such parent entity of the Issuer provides a Guarantee initial purchaser of the Notes orand securities analysts how they can obtain such information, if such parent does not provide a Guaranteeincluding, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parentwithout limitation, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable report, password or other login information; provided that quarterly conference calls held by Opco shall be deemed to satisfy the Issuer’s Unrestricted Subsidiaries requirement in this clause (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiariesd).
(de) Notwithstanding anything herein to the contraryforegoing, the 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 EPE Holdings will be deemed to have satisfied its obligations furnished the reports referred to in this Section 4.02 to the Trustee and the holders if EPE Holdings or another Reporting Entity has filed such reports with respect thereto at the SEC via the XXXXX filing system and such time and any Default with respect thereto reports are publicly available. In addition, the requirements of this Section 4.02 shall be deemed satisfied by the posting of reports that would be required to have been curedbe provided to the holders on Opco’s website (or that of any of Opco’s parent companies).
(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 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 SECSo long as any Notes are outstanding, the Issuer shall file with will provide to the SEC from Trustee and, upon request, to beneficial owners of the Notes, a copy of all of the information and after the Issue Datereports referred to below:
(i) within 90 days after the end of each fiscal yearyear (or 120 days with respect to the fiscal year ended December 31, annual reports on Form 10-K, 2011 or any successor or comparable form (in all cases such longer period as may be permitted by the SEC if the Issuer had been were then subject to such SEC reporting requirements as a reporting company under Section 15(d) non-accelerated filer), annual audited financial statements of the Exchange Act), containing substantially Reporting Entity 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 Reporting Entity’s independent registered public accounting firm (all of the foregoing financial information that would be required to be contained therein, or required prepared on a basis substantially consistent with the corresponding financial information included in such successor or comparable formthe Offering Memorandum);
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 90 days with respect to the fiscal quarter ended March 31, 2012 or in all cases such 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), 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 Offering Memorandum); and
(iii) within 15 days after the time period specified for filing current reports on Form 108-QK by the SEC, or 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, 5.02 (other than compensation information), 5.03(b) and Item 9.01 (only to the extent relating to any successor or comparable form (of the foregoing) of Form 8-K if the Issuer had been a reporting company companies under Section 15(d) of the Exchange Act): provided, containing substantially all quarterly information however, that would no such current report will be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (furnished if the Issuer had been a reporting company under Section 15(d) 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 Exchange Act)Issuer and its Restricted Subsidiaries, taken as a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum)whole; provided, however, that the time period during which information is required to be provided pursuant to clauses (i) or (ii) of this paragraph shall be extended by 30 days with respect to any period during which the Reporting Entity elects to change from IFRS to GAAP for its or its Subsidiaries’ financial reporting (and the Issuer shall not provide notice to the Trustee of such 30-day extension upon such change). 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 so obligated provided pursuant to file such reports referred to in clauses (i), (ii) and or (iii) above with the SEC if the SEC does not permit such filingof this paragraph, in which event the Issuer shall make available by posting to such information to its website or on IntraLinks or any comparable password-protected online data system or website.
(b) Notwithstanding the Trusteeforegoing, the Holders and prospective purchasers of Notes, in each case within 15 days after the time (a) the Issuer would 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 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 if the Issuer or any other Reporting Entity has filed such information with the SEC if it were subject 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, then the quarterly and annual financial information required to be provided by this Section 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 Issuer will agree that, for so long as any Notes are outstanding, the Issuer shall 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) The Issuer financial statements, information and other documents required to be provided as described above, may satisfy its obligations under this Section 4.03 with respect to financial information relating to be those of (i) the Issuer by furnishing financial information relating to a Issuer, (ii) Holdings or (iii) any direct or indirect parent of the Issuer Holdings (including HGV Parent) as any such entity, a “Reporting Entity”), so long as in the case of (ii) and (iii), Holdings or such direct or indirect parent of Holdings shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any such parent entity business or operations other than its direct or indirect ownership of all of the Issuer provides a Guarantee Equity Interests in, and its management of the Notes orIssuer; provided that, if such parent does not provide a Guarantee, if such the financial information so furnished relates to Holdings or to such direct or indirect parent of Holdings, the same is accompanied by selected financial metrics that show a reasonably detailed description of the material quantitative differences (in the Issuer’s sole discretion) between the information relating to Holdings or to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand.
(cg) If with respect 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 reporting period(s) covered in the applicable reportinformation contained therein or determinable from information contained therein, including the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” compliance with any of its covenants under this Indenture (as such term to which the Trustee is defined in Rule 1-02 of Regulation S-X promulgated pursuant entitled to certificates).
(h) So long as Notes are outstanding, the Issuer will also:
(i) as promptly as reasonably practicable after furnishing to the Securities Act (as such regulation is in effect on Trustee the Issue Date)), then the applicable annual and quarterly financial information reports required by clauses (a)(i) and (a)(ii) above shall include of this Section 4.02, hold a supplemental section in “Management’s Discussion conference call to discuss such reports and Analysis the results of Financial Condition and Results of Operations” presenting operations for the relevant reporting period; and
(in ii) post to its website or on IntraLinks or any comparable password- protected online data system, which will require a manner consistent with confidentiality acknowledgment (but not restrict the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures recipients of such Unrestricted Subsidiaries information in the aggregate (separate from the financial information trading of securities of the Issuer or its affiliates), prior to the date of the conference call required to be held in accordance with subclause (i) of this Section 4.02(h), announcing the time and its Restricted Subsidiaries)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.
(di) Notwithstanding anything herein 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 contraryIssuer (to the Issuer’s reasonable good faith satisfaction) that:
(i) it is a holder of the Notes, a beneficial owner of the Notes, a prospective investor in the Notes, a market maker or an analyst covering the Issuer will or the Notes; and
(ii) it is not be deemed to have failed to comply with any a Person (which includes such Person’s parents, sister companies or subsidiaries) that (i) is a customer of the Issuer or its Subsidiaries principally engaged in a Similar Business or (ii) derives a significant portion of its obligations hereunder for purposes revenues from operation 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 to have been cureda Similar Business.
Appears in 1 contract
Samples: Indenture (TAMINCO ACQUISITION Corp)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date, the Issuer shall furnish to the Trustee no later than 15 days after the periods set forth below:
(i) within 90 120 days after the end of each fiscal year, all financial information that would be required to be contained in an annual reports report on Form 10-K, or any successor or comparable form (if form, filed with the Issuer had been SEC, including a reporting company under Section 15(d) “Management’s discussion and analysis of financial condition and results of operations” and a report on the Exchange Act), containing substantially all annual financial statements by the information that would be required to be contained therein, or required in such successor or comparable formIssuer’s independent registered public accounting firm;
(ii) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, reports all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form (if form, filed with the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;SEC; and
(iii) promptly after the occurrence of a material event which any of the following events, all current reports that would have been be required to be reported filed with the SEC on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act); provided that the foregoing shall not obligate the Issuer to (x) make available any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if the Issuer determines in its good-faith judgment that such 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 or (y) make available copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report relating to such event on Form 8-K K:
(A) the entry into or any successor termination of material agreements;
(B) significant acquisitions or comparable formdispositions (which shall only be with respect to acquisitions or dispositions that are “significant” pursuant to the definition of “significant subsidiary” in Rule 1-02(w)(2) of Regulation S-X);
(C) the sale of equity securities;
(D) bankruptcy;
(E) cross-default under direct material financial obligations;
(F) a change in the Issuer’s certifying independent auditor;
(G) the appointment or departure of directors or executive officers (but only to the extent required by Form 8-K);
(H) non-reliance on previously issued financial statements;
(I) change of control transactions;
(J) triggering events that accelerate or increase a direct financial obligation or an obligation under an off-balance sheet arrangement; and
(K) material impairments; in each case, in a manner that complies in all material respects with the requirements specified in such form (form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Memorandum)below; provided, however, that the Issuer shall not be so obligated required to file such reports referred to in clauses (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 or (ii) provide separate financial statements or other information contemplated by Rule 3-09, 3-10 or 3-16 of Regulation S-X, or in each case any successor provisions; provided that, if the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required by clauses (1) and (iii2) above of this Section 4.03(a) shall include a presentation of selected financial metrics of such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations.” In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the SEC if Xxxxxxxx-Xxxxx Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K. To the SEC does extent any such information is not permit so filed or furnished, as applicable, within the time periods specified in this Section 4.03(a) and such filinginformation is subsequently filed or furnished, in which event as applicable, the Issuer shall make available be deemed to have satisfied its obligations with respect thereto at such information time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the Trustee, rights of the Holders and prospective purchasers under Article 6 hereof if Holders of Notes, at least 30% in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) principal amount of the Exchange Actthen 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, to the extent not satisfied by the foregoing, the Issuer shall, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of entity; provided that the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected financial metrics that show an explanation of the material differences (in the Issuer’s sole discretion) differences, if any, between the information relating to such parentparent entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone 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.
(c) If Substantially concurrently with respect the furnishing or making such information available to any reporting period(s) covered in the applicable reportTrustee pursuant to Section 4.03(a), the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as Issuer shall post copies of such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses Section 4.03(a) on a website (a)(iwhich may be nonpublic and may be maintained by the Issuer or a third party) to which access will be given to Holders, prospective investors in the Notes and securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer. To the extent the Issuer 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, furnish such reports to the Holders of the Notes, upon their request. The Issuer may condition the delivery of any 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 there) and information as confidential, (a)(iiii) above shall include a supplemental section in “Management’s Discussion not use such reports (and Analysis of Financial Condition the information contained therein) and Results of Operations” presenting (in a manner consistent with the presentation of information included for any purpose other than their investment or incorporated by reference potential investment in the Offering MemorandumNotes and (iii) selected financial measures of not publicly disclose any such Unrestricted Subsidiaries in reports (and the aggregate (separate from the financial information of the Issuer contained therein) and its Restricted Subsidiaries)information.
(d) Notwithstanding anything herein Delivery of such reports, information and documents to the contraryTrustee is for informational purposes only and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable for information contained therein, including the Issuer’s and any Guarantor’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(e) Notwithstanding any other provision of this Indenture, the Issuer will not be deemed sole remedy for an Event of Default relating to have failed the failure to comply with any of its the reporting obligations hereunder described under this covenant, shall for purposes of clause (iii) of Section 6.01(a) hereof until 120 the 365 days after the receipt occurrence of such an Event of Default consist exclusively, to the extent permitted by applicable law, of the written notice delivered thereunderright to receive additional interest on the principal amount of the Notes at a rate equal to 0.50% per annum. To This additional interest shall be payable in the extent same manner and subject to the same terms as other interest payable under this Indenture. This additional interest shall accrue on all outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations described above under this covenant first occurs to, but excluding, the 365th day thereafter (or such earlier date on which the Event of Default relating to such reporting obligations is cured or waived). If the Event of Default resulting from such failure to comply with the reporting obligations is continuing on such 365th day, such additional interest shall cease to accrue and the Notes shall be subject to the other remedies provided under Article 6 hereof.
(f) The Issuer shall also hold quarterly conference calls for the Holders of Notes to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with the Issuer’s (or as applicable, any information is of any parent entity’s) equity investors and analysts). The conference call shall be following the last day of each fiscal quarter of the Issuer and not provided within later than 20 Business Days from the time periods specified that the Issuer distributes the financial information as set forth in Section 4.03(a). The Issuer shall issue a press release announcing the time and date of such conference call (which date may be the same date on which the press release is issued) and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call; provided, however, that such press release can be distributed solely to certified users of the website described in Section 4.03(c). Notwithstanding anything to the contrary in this Section 4.03, if the Issuer or any parent entity of the Issuer has furnished the Holders of Notes and filed with the SEC the reports described in this Section 4.03 and such information is subsequently providedwith respect to the Issuer or any parent entity, 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 to have been curedbe in compliance with the provisions of this Section 4.03.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC (with a copy to the Trustee unless filed and available on the SEC’s XXXXX website) from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 or incorporated by reference in the Offering Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct HLT Parent or indirect HWP (or any parent entity of the Issuer (including HGV ParentHLT Parent or HWP) as long as HLT Parent or HWP (or any such parent entity of the Issuer HLT Parent or HWP) provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other handNotes.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from From and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for Effective Date so long as any Notes are outstanding, the Issuer shall furnish to Holders the Holders:
(1) (x) all annual and to securities analysts and prospective investors, upon their request, the information quarterly financial statements substantially in forms that would be required to be delivered pursuant contained in a filing with the SEC on Forms 10-K and 10-Q of the Issuer, if the Issuer were required to Rule 144A(d)(4file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (y) under the Securities Act.
(b) The Issuer may satisfy its obligations under this Section 4.03 with respect to the annual and quarterly information, a presentation of EBITDA and Adjusted EBITDA of the Issuer substantially consistent with the presentation thereof in the Offering Circular and derived from such financial information relating 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) within 10 Business Days after the occurrence of an event required to be therein reported, such other information containing substantially the same 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 promulgated by the SEC) as in effect on the Effective Date if the Issuer by furnishing financial information relating were required to file such reports; provided, however, that no such current report shall be required to include as an exhibit, or to include a direct summary of the terms of, any employment or indirect parent compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, member, partner, manager or executive officer, of the Issuer (including HGV Parentor any of its Subsidiaries); provided, however, that (i) as long as any in no event shall such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating reports be required to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a standcomply with Rule 3-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 10 of Regulation S-X promulgated pursuant by the SEC or contain separate financial statements for the Issuer, the Guarantors or other 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, (b) Section 3-10 of Regulation S-X or (c) Section 3-16 of Regulation S-X, respectively, promulgated by the SEC, (ii) 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, (iii) in no event shall such reports be required to include any information that is not otherwise similar to information currently included in the Offering Circular, other than with respect to reports provided under clause (2) above, (iv) no such reports referenced under clause (2) above shall be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to the Securities Act Holders or the business, assets, operations or financial position of the Issuer and its Restricted Subsidiaries, taken as a whole, and (v) in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial information to the extent reasonably available and, in any case with respect to such regulation is pro forma financial information, such pro forma financial information shall include only pro forma revenues, Consolidated EBITDA and capital expenditures in effect on lieu thereof. Table of Contents
(b) All such annual reports shall be furnished within 90 days after the Issue Date))end of the fiscal year to which they relate, and all such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate; provided that the annual report for the first fiscal year ending after the Effective Date shall be furnished within 120 days after the end of such fiscal year; and provided, further, that the quarterly reports for each of the fiscal quarter ending prior to and the first three fiscal quarters ending after the Effective Date shall be furnished within 60 days after the end of such applicable fiscal quarter.
(c) At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the applicable quarterly and annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall the preceding paragraph will include a supplemental section reasonably detailed presentation, either (i) on the face of the financial statements or in the footnotes thereto, (ii) in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting or (iii) in a manner consistent with any other comparable section, of the presentation financial condition and results of information included or incorporated by reference in operations of the Offering Memorandum) selected Issuer and Restricted Subsidiaries separate from the financial measures condition and results of operations of such Unrestricted Subsidiaries of the Issuer.
(d) The Issuer shall make available such information and such reports (as well as the details regarding the conference call described Section 4.03(e)(1)) to any Holder and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, 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 Holder, any bona fide prospective investor in the aggregate Notes, any securities analyst (separate from to the financial extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks or any comparable password-protected online data system which will 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 Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that the Issuer may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Restricted Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, bona fide 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).
(de) Notwithstanding anything herein to the contrarySo long as any Notes are outstanding, the Issuer will not be deemed shall also:
(1) as promptly as reasonably practicable after furnishing to have failed to comply with any of its obligations hereunder for purposes of the Trustee each annual and quarterly report required by clause (iii1) of Section 6.01(a4.03(a) hereof until 120 days or such earlier time after the receipt completion of such reporting period, hold a conference call to discuss the results of operations for the relevant reporting period; and
(2) issue a press release to the appropriate nationally recognized wire services prior to the date of the written notice delivered thereunder. To the extent any information is not provided within conference call required to be held in accordance with clause (1) of this Section 4.03(e), announcing the time periods specified in this Section 4.03 and date of such conference call and either including all information is subsequently providednecessary to access the call or informing Holders, the Issuer will be deemed to have satisfied its obligations with respect thereto at beneficial owners, prospective investors, market makers and securities analysts how they can obtain such time and any Default with respect thereto shall be deemed to have been curedinformation.
Appears in 1 contract
Samples: Indenture (Avantor, Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer 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, the Issuer Parent shall file with the SEC (with a copy to the Trustee unless filed and available on the SEC’s XXXXX website) from and after the Issue Date:
(i) within 90 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer Parent had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable form (if the Issuer Parent had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer Parent had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 or incorporated by reference in the Offering Memorandum); provided, however, that the Issuer if at any time Parent shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC or if the SEC does not permit such filing, in which event the Issuer then Parent shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 10 days after the time the Issuer Parent would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer Parent may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer Parent by furnishing financial information relating to a direct HLT Parent or indirect HWP (or any parent entity of the Issuer (including HGV ParentHLT Parent or HWP) as long as HLT Parent or HWP (or any such parent entity of the Issuer HLT Parent or HWP) provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other handNotes.
(c) If with respect to any reporting period(s) covered in the applicable report, the IssuerParent’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the Issuer Parent 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 Parent 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.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue DateSEC:
(i) within 90 days after the end of each fiscal yearyear (or 120 days for the fiscal year ending December 31, 2011), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 60 days for the first three fiscal quarters ending after the Issue Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), Q containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after within five (5) Business Days of the occurrence of a material date on which an event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; Table of Contents 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 subject, in the case of required financial information, to exceptions consistent with the presentation of financial information in the Offering Memorandum, to the extent filed within the times specified above); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC (A) if the SEC does not permit such filingfiling or (B) prior to the consummation of an exchange offer or the effectiveness of a Shelf Registration Statement as required by the applicable Registration Rights Agreement, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section Sections 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Issuer agrees that, for so long as any Notes are outstanding, the Issuer shall 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; provided, further, that any report required to be delivered under clause (i) or (ii) of this Section 4.03(a) prior to the completion of the first full fiscal year following the Issue Date shall not be required to comply with Regulation S-X or contain all purchase accounting adjustments relating to the Transactions to the extent it is not practicable to include any such adjustments in such report.
(b) The In the event that any direct or indirect parent company of the Issuer of which the Issuer is a Wholly-Owned Subsidiary becomes a Guarantor, the Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as such parent; provided, that, if and so long as any such parent entity of company shall have Independent Assets or Operations, the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected financial metrics consolidating information that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If . “Independent Assets or Operations” means, with respect to any reporting period(s) covered such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or each case amounts related to its investment in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Samples: Indenture (TC3 Health, Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date, the Issuer shall furnish to the Trustee no later than 15 days after the periods set forth below:
(i) within 90 120 days after the end of each fiscal year, all financial information that would be required to be contained in an annual reports report on Form 10-K, or any successor or comparable form (if form, filed with the Issuer had been SEC, including a reporting company under Section 15(d) “Management’s discussion and analysis of financial condition and results of operations” and a report on the Exchange Act), containing substantially all annual financial statements by the information that would be required to be contained therein, or required in such successor or comparable formIssuer’s independent registered public accounting firm;
(ii) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, reports all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form (if form, filed with the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;SEC; and
(iii) promptly after the occurrence of a material event which any of the following events, all current reports that would have been be required to be reported filed with the SEC on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act); provided that the foregoing shall not obligate the Issuer to (x) make available any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if the Issuer determines in its good-faith judgment that such 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 or (y) make available copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report relating to such event on Form 8-K K:
(A) the entry into or any successor termination of material agreements;
(B) significant acquisitions or comparable formdispositions (which shall only be with respect to acquisitions or dispositions that are “significant” pursuant to the definition of “significant subsidiary” in Rule 1-02(w)(2) of Regulation S-X);
(C) the sale of equity securities;
(D) bankruptcy;
(E) cross-default under direct material financial obligations;
(F) a change in the Issuer’s certifying independent auditor;
(G) the appointment or departure of directors or executive officers (but only to the extent required by Form 8-K);
(H) non-reliance on previously issued financial statements;
(I) change of control transactions;
(J) triggering events that accelerate or increase a direct financial obligation or an obligation under an off-balance sheet arrangement; and
(K) material impairments; in each case, in a manner that complies in all material respects with the requirements specified in such form (form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Memorandum)below; provided, however, that the Issuer shall not be so obligated required to file such reports referred to in clauses (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 or (ii) provide separate financial statements or other information contemplated by Rule 3-09, 3-10 or 3-16 of Regulation S-X, or in each case any successor provisions; provided that, if the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Party, then the annual and quarterly information required by clauses (1) and (iii2) above of this Section 4.03(a) shall include a presentation of selected financial metrics of such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations.” In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the SEC if Xxxxxxxx-Xxxxx Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K. To the SEC does extent any such information is not permit so filed or furnished, as applicable, within the time periods specified in this Section 4.03(a) and such filinginformation is subsequently filed or furnished, in which event as applicable, the Issuer shall make available be deemed to have satisfied its obligations with respect thereto at such information time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the Trustee, rights of the Holders and prospective purchasers under Article 6 hereof if Holders of Notes, at least 30% in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) principal amount of the Exchange Actthen 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, to the extent not satisfied by the foregoing, the Issuer shall, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of entity; provided that the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected financial metrics that show an explanation of the material differences (in the Issuer’s sole discretion) differences, if any, between the information relating to such parentparent entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone 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.
(c) If Substantially concurrently with respect the furnishing or making such information available to any reporting period(s) covered in the applicable reportTrustee pursuant to Section 4.03(a), the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as Issuer shall post copies of such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses Section 4.03(a) on a website (a)(iwhich may be nonpublic and may be maintained by the Issuer or a third party) to which access will be given to Holders, prospective investors in the Notes and securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer. To the extent the Issuer 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, furnish such reports to the Holders of the Notes, upon their request. The Issuer may condition the delivery of any 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 there) and information as confidential, (a)(iiii) above shall include a supplemental section in “Management’s Discussion not use such reports (and Analysis of Financial Condition the information contained therein) and Results of Operations” presenting (in a manner consistent with the presentation of information included for any purpose other than their investment or incorporated by reference potential investment in the Offering MemorandumNotes and (iii) selected financial measures of not publicly disclose any such Unrestricted Subsidiaries in reports (and the aggregate (separate from the financial information of the Issuer contained therein) and its Restricted Subsidiaries)information.
(d) Notwithstanding anything herein Delivery of such reports, information and documents to the contraryTrustee is for informational purposes only and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable for information contained therein, including the Issuer’s and any Guarantor’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(e) Notwithstanding any other provision of this Indenture, the Issuer will not be deemed sole remedy for an Event of Default relating to have failed the failure to comply with any of its the reporting obligations hereunder described under this covenant, shall for purposes of clause (iii) of Section 6.01(a) hereof until 120 the 365 days after the receipt occurrence of such an Event of Default consist exclusively, to the extent permitted by applicable law, of the written notice delivered thereunderright to receive additional interest on the principal amount of the Notes at a rate equal to 0.50% per annum. To This additional interest shall be payable in the extent same manner and subject to the same terms as other interest payable under this Indenture. This additional interest shall accrue on all outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations described above under this covenant first occurs to, but excluding, the 365th day thereafter (or such earlier date on which the Event of Default relating to such reporting obligations is cured or waived). If the Event of Default resulting from such failure to comply with the reporting obligations is continuing on such 365th day, such additional interest shall cease to accrue and the Notes shall be subject to the other remedies provided under Article 6 hereof.
(f) The Issuer shall also hold quarterly conference calls for the Holders of Notes to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with the Issuer’s (or as applicable, any information is of any parent entity’s) equity investors and analysts). The conference call shall be following the last day of each fiscal quarter of the Issuer and not provided within later than 20 Business Days from the time periods specified that the Issuer distributes the financial information as set forth in Section 4.03(a). The Issuer shall issue a press release announcing the time and date of such conference call (which date may be the same date on which the press release is issued) and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call; provided, however, that such press release can be distributed solely to certified users of the website described in Section 4.03(c). Notwithstanding anything to the contrary in this Section 4.03, if the Issuer or any parent entity of the Issuer has furnished the Holders of Notes and filed with the SEC the reports described in this Section 4.03 and such information is subsequently providedwith respect to the Issuer or any parent entity, 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 to have been curedbe in compliance with the provisions of this Section 4.03.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal yearyear (or 120 days for the first fiscal year ending after the Issue Date), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 60 days for the first three fiscal quarters for which reports are required after the Issue Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC (A) if the SEC does not permit such filingfiling or (B) prior to the consummation of an Exchange Offer or the effectiveness of a Shelf Registration Statement as required by the Registration Rights Agreement, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act; provided, further, that until such time as the consummation of an Exchange Offer or the effectiveness of a Shelf Registration Statement as required by the Registration Rights Agreement, the Issuer shall not be required to (i) in the case of (x) clauses (i) and (ii) provide any information beyond the financial information that would be required to be contained in an annual or quarterly report on Form 10-K or 10-Q, as applicable, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and (y) clause (iii) make available any information regarding director and management compensation or the occurrence of any of the events set forth in Items 1.04, 2.01, 2.05, 2.06, 3 (other than Item 3.03), 5.01, 5.02(e)-(f), 5.03-5.08, 0, 0, 0 xx 0 xx Xxxx 0-X, (xx) make available any information regarding the occurrence of any of the events set forth in Items 1.01 or 1.02 of Form 8-K 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, (iii) 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), (iv) comply with Regulation S-X or (v) provide any information that is not otherwise similar to information currently included in the Offering Memorandum. In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002 or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K prior to the consummation of an Exchange Offer or the effectiveness of a Shelf Registration Statement. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct Holdings (or indirect any parent entity of the Issuer (including HGV ParentHoldings) as long as Holdings (or any such parent entity of the Issuer Holdings) provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other handNotes.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding the foregoing, such 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 for the Initial Notes by (i) the filing with the SEC of the Exchange Offer Registration Statement or the Shelf Registration Statement (or any other similar registration statement), and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act, subject to exceptions consistent with the presentation of financial information in the Offering Memorandum, to the extent filed within the time periods specified above, or (ii) by posting on the Issuer’s website or providing to the Trustee for distribution to the Holders within 15 days of the time periods after the Issuer would have been required to file annual and interim reports with the SEC, the financial information (including the “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, to the extent filed or posted within the times specified above.
(e) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that For so long as any Notes are outstanding, Holdings and the Issuer may not be subject Issuers shall deliver to the reporting requirements Trustee a copy of Section 13 or 15(d) all of the Exchange Act or otherwise report on an annual information and quarterly basis on forms provided for such annual and quarterly reporting pursuant reports referred to rules and regulations promulgated by the SEC, the Issuer shall file with the SEC from and after the Issue Datebelow:
(i) within 90 15 days after the end of each fiscal yeartime period specified in the SEC’s rules and regulations for non-accelerated filers (or, if earlier, within 15 days after the time period specified in the SEC’s rules and regulations as and to the extent applicable to the Reporting Entity), annual reports of the Reporting Entity for such fiscal year containing the information that would have been required to be contained in an annual report on Form 10-K, K (or any successor or comparable form (form) if the Issuer Reporting Entity had been a reporting company under Section 15(d) of 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 (or, if earlier, within 15 days after the time period specified in the SEC’s rules and regulations as and to the extent applicable to the Reporting Entity), 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 10-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 information that would be required to be contained therein, or required filed in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports a current report on Form 108-QK under the Exchange Act on the Issue Date pursuant to Items 1.01, or any successor or comparable form 1.02, 1.03, 2.01, 2.03, 2.04, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(a), (b) and (c) of Form 8-K if the Issuer Reporting Entity had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that no such current reports (or Items thereof or all or a portion of the Issuer financial statements that would have otherwise been required thereby) will be required to be delivered (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 not 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 so obligated provided pursuant to file such reports referred to in the foregoing clauses (i), (ii) and (iii), by posting such information to its website (or the website of any of Holdings’ parent companies, including the Reporting Entity) above or on IntraLinks or any comparable online data system or website. If at any time Holdings or any direct or indirect parent of Holdings has made a good faith determination to file a registration statement with the SEC if the SEC does with respect to an Equity Offering of such entity’s Capital Stock, Holdings will not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file disclose any information or take any actions that, in the good faith view of Holdings, would violate the securities laws or the SEC’s “gun jumping” (or equivalent) rules or otherwise have an adverse effect on such Equity Offering. Notwithstanding the foregoing, (A) neither Holdings 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 or 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, Form 10-Q or Form 8-K (or any 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 SEC if it were subject presentation of financial and other information in the Offering Circular 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 in this Section 15(d4.02 may be those of (i) Holdings or (ii) any direct or indirect parent of Holdings (any such entity described in clause (i) or (ii), a “Reporting Entity”), so long as in the case of clause (ii) either (1) such direct or indirect parent of Holdings 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 Exchange ActEquity Interests in, and its management, of Holdings or (2) if otherwise, the financial information so delivered shall be accompanied by a reasonably detailed description of the material quantitative differences, if any, 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 the financial statements, information and other documents required to be provided as described in this Section 4.02 available electronically to prospective investors upon request. In addition, to the extent not satisfied by the foregoingHoldings shall, for so long as any Notes are outstandingremain 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 Issuer shall 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.
(bd) The Issuer may satisfy its obligations under this Section 4.03 Holdings and the Issuers will also hold quarterly conference calls, beginning with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent first full fiscal quarter ending after the Issue Date, for all holders of the Issuer (including HGV Parent) as long as Notes, prospective investors, market makers affiliated with any such parent entity of the Issuer provides a Guarantee initial purchaser of the Notes or, if such parent does not provide a Guarantee, if and securities analysts (to the extent providing analysis of investment in the Notes) (which conference calls may be combined with any conference calls for the holders of Holdings’ or another Reporting Entity’s securities or other indebtedness) to discuss such financial information is accompanied by selected financial metrics that show no later than fifteen (15) Business Days after the material differences (in the Issuer’s sole discretion) between the information relating to distribution of such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(ii) or (ii) of Section 4.02(a) and, prior to the date of each such conference call, will announce the time and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures date of such Unrestricted Subsidiaries in conference call and either include all information necessary to access the aggregate (separate from the financial information call or inform holders of the Issuer Notes, prospective investors, market makers affiliated with any initial purchaser of the Notes and its Restricted Subsidiariessecurities analysts how they can obtain such information, including, without limitation, the applicable password or login information (if applicable).
(de) Notwithstanding anything herein to the contraryforegoing, the 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 Holdings 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 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 4.02 shall be deemed satisfied its obligations with respect thereto at such time and any Default with respect thereto shall Holdings will be deemed to have been cureddelivered such reports and information referred to in this Section 4.02 to the Trustee, holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by the posting of reports and information that would be required to be provided on Holdings’ website (or that of any of Holdings’ parent companies, including the Reporting Entity).
(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’, any Guarantor’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). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuers’, any Guarantor’s or any other Person’s compliance with this Section 4.02 or with respect to any reports or other documents filed under this Indenture.
Appears in 1 contract
Samples: Indenture (Garrett Motion Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal yearyear (or 120 days for the fiscal year ending after the Issue Date), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 60 days for the first three fiscal quarters ending after the Issue Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), Q containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC (A) if the SEC does not permit such filingfiling or (B) prior to the consummation of an exchange offer or the effectiveness of a Shelf Registration Statement as required by the Registration Rights Agreement, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section Sections 13 or 15(d) of the Exchange Act; provided, further, that until such time as the consummation of an exchange offer or the effectiveness of a shelf registration statement as required by the Registration Rights Agreement, the Issuer shall not be required to (i) in the case of (x) clauses (i) and (ii) provide any information beyond the financial information that would be required to be contained in an annual or quarterly report on Form 10-K or 10-Q, as applicable, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and (y) clause (iii) make available any information regarding director and management compensation or the occurrence of any of the events set forth in Items 1.04, 2.01, 2.05, 2.06, 3 (other than Item 3.03), 5.01, 5.02(e)-(f), 5.03-5.08, 0, 0, 0 xx 0 xx Xxxx 0-X, (xx) make available any information regarding the occurrence of any of the events set forth in Items 1.01 or 1.02 of Form 8-K 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 or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries taken as a whole, (iii) 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), (iv) comply with Regulation S-X or contain all purchase accounting adjustments relating to the Acquisition Transactions to the extent it is not practicable to include any such adjustments in such report or (v) provide any information that is not otherwise similar to information currently included in the Offering Memorandum. In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002 or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K prior to the consummation of an exchange offer or the effectiveness of a shelf registration statement. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer shall 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. Delivery of reports, information and documents (including, without limitation, reports contemplated in this Section 4.03) to the Trustee is for information 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 compliance of the Issuer, the Guarantors and Holdings with covenants under this Indenture, the Notes, the Guarantees and the Collateral Documents, as to which the Trustee shall be entitled to rely exclusively on Officers’ Certificates.
(b) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct Holdings (or indirect any parent entity of the Issuer (including HGV ParentHoldings) as long as Holdings (or any such parent entity of the Issuer Holdings) provides a Guarantee of the Notes orNotes; provided, that, if and so long as such parent does not provide a Guaranteecompany shall have Independent Assets or Operations, if such financial information the same is accompanied by selected financial metrics consolidating information that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to Holdings (or such parentparent entity, as the case may be), on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If . “Independent Assets or Operations” means, with respect to Holdings or any reporting period(s) covered such parent company, that Holdings or such parent company’s total assets or revenues, determined in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (accordance with GAAP and as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect shown on the Issue Date))most recent financial statements of Holdings or such parent company, then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Managementis more than 3.0% of Holdings or such parent company’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries)corresponding consolidated amount.
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Samples: Indenture (APX Group Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date:
(i) within 90 days after the end of each fiscal yearyear (or 120 days for the fiscal year ending December 31, 2012), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act)form, containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 60 days for the first three fiscal quarters ending after the Issue Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), Q containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC (A) if the SEC does not permit such filingfiling or (B) prior to the consummation of an exchange offer or the effectiveness of a Shelf Registration Statement as required by the Registration Rights Agreement, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section Sections 13 or 15(d) of the Exchange Act; provided, further, that until such time as the consummation of an exchange offer or the effectiveness of a shelf registration statement as required by the Registration Rights Agreement, the Issuer shall not be required to (i) in the case of (x) clauses (i) and (ii) provide any information beyond the financial information that would be required to be contained in an annual or quarterly report on Form 10-K or 10-Q, as applicable, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and (y) clause (iii) make available any information regarding director and management compensation or the occurrence of any of the events set forth in Items 1.04, 2.01, 2.05, 2.06, 3 (other than Item 3.03), 5.01, 5.02(e)-(f), 5.03-5.08, 0, 0, 0 xx 0 xx Xxxx 0-X, (xx) make available any information regarding the occurrence of any of the events set forth in Items 1.01 or 1.02 of Form 8-K 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 or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries taken as a whole, (iii) 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), (iv) comply with Regulation S-X or contain all purchase accounting adjustments relating to the Acquisition Transactions to the extent it is not practicable to include any such adjustments in such report or (v) provide any information that is not otherwise similar to information currently included in the Offering Memorandum. In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the Xxxxxxxx-Xxxxx Act of 2002 or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K prior to the consummation of an exchange offer or the effectiveness of a shelf registration statement. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer shall 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. Delivery of reports, information and documents (including, without limitation, reports contemplated in this Section 4.03) to the Trustee is for information 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 compliance of the Issuer, the Guarantors and Holdings with covenants under this Indenture, the Notes and the Guarantees, as to which the Trustee shall be entitled to rely exclusively on Officers’ Certificates.
(b) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct Holdings (or indirect any parent entity of the Issuer (including HGV ParentHoldings) as long as Holdings (or any such parent entity of the Issuer Holdings) provides a Guarantee of the Notes orNotes; provided, that, if and so long as such parent does not provide a Guaranteecompany shall have Independent Assets or Operations, if such financial information the same is accompanied by selected financial metrics consolidating information that show explains in reasonable detail the material differences (in the Issuer’s sole discretion) between the information relating to Holdings (or such parentparent entity, as the case may be), on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If . “Independent Assets or Operations” means, with respect to Holdings or any reporting period(s) covered such parent company, that Holdings or such parent company’s total assets or revenues, determined in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (accordance with GAAP and as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect shown on the Issue Date))most recent financial statements of Holdings or such parent company, then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Managementis more than 3.0% of Holdings or such parent company’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries)corresponding consolidated amount.
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
Samples: Indenture (APX Group Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer may not be subject Company will 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 Issuer shall file with the SEC from and after the Issue DateHolders:
(i1) within 90 (x) 120 days after the end of the fiscal year of the Company ending December 31, 2018 and (y) 105 days after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) year of the Exchange Act)Company, containing substantially commencing with the year ending December 31, 2019, all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each annual financial statements of the first three fiscal quarters of each fiscal year, reports on Form 10-Q, or any successor or comparable Company substantially in the form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in a filing with the SEC on Form 10-Q, or any successor or comparable form;
K (iii) promptly after but only to the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 extent similar information was included in the Offering Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above accordance with the SEC requirements of such Form 10-K as of the Issue Date, if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be Company were required to file such information form, together with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied a report thereon by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the IssuerCompany’s sole discretion) between the information relating to such parent, on the one handindependent registered public accounting firm, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” presenting (in a manner data and information relating to Hydrocarbon proved reserves that is substantially consistent with the presentation of information thereof included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries , excluding information included in the aggregate (separate from the financial information annexes hereto, and a calculation of Adjusted Consolidated Net Tangible Assets or a calculation of the Issuer discounted future net revenues from Proved Reserves of the Company and its Restricted SubsidiariesSubsidiaries calculated in accordance with SEC guidelines (but in any event including reserve estimates based on an assumed five-year development plan or such longer period as permitted by the SEC).; and
(d2) Notwithstanding anything herein to the contrary, the 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 within 60 days after the receipt end of each fiscal quarter of the written notice delivered thereunder. To Company ending after the Issue Date (solely with respect to the first three fiscal quarters of each fiscal year), all quarterly financial statements of the Company substantially in the form that would be required to be contained in a filing with the SEC on Form 10-Q (but only to the extent any similar information is not provided within was included in the Offering Memorandum), in accordance with the requirements of such Form 10-Q as of the Issue Date, if the Company were required to file such form, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations;” and
(3) promptly from time periods specified to time after the occurrence of an event required to be therein reported, such other information containing substantially the same information that would be required to be contained in this Section 4.03 and filings with the SEC on Form 8-K, in accordance with the requirements of such information is subsequently providedForm 8-K as of the Issue Date, 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 to have been cured.under Items: 1.01 (Entry into a Material Definitive Agreement); 1.03 (Bankruptcy or Receivership); 2.01 (
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Samples: Indenture (Magnolia Oil & Gas Corp)
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC from and after the Issue Date, the Issuer shall furnish to the Trustee no later than 15 days after the periods set forth below:
(i) within 90 120 days after the end of each fiscal year, all financial information that would be required to be contained in an annual reports report on Form 10-K, or any successor or comparable form (if form, filed with the Issuer had been SEC, including a reporting company under Section 15(d) “Management’s discussion and analysis of financial condition and results of operations” and a report on the Exchange Act), containing substantially all annual financial statements by the information that would be required to be contained therein, or required in such successor or comparable formIssuer’s independent registered public accounting firm;
(ii) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, reports all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form (if form, filed with the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;SEC; and
(iii) promptly after the occurrence of a material event which any of the following events, all current reports that would have been be required to be reported filed with the SEC on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act); provided, that the foregoing shall not obligate the Issuer to (x) make available any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if the Issuer determines in its good faith judgment that such 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 or (y) make available copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report relating to such event on Form 8-K K:
(A) the entry into or any successor termination of material agreements;
(B) significant acquisitions or comparable formdispositions (which shall only be with respect to acquisitions or dispositions that are “significant” pursuant to the definition of “significant subsidiary” in Rule 1-02(w)(2) of Regulation S-X);
(C) the sale of equity securities;
(D) bankruptcy;
(E) cross-default under direct material financial obligations;
(F) a change in the Issuer’s certifying independent auditor;
(G) the appointment or departure of directors or executive officers (but only to the extent required by Form 8-K);
(H) non-reliance on previously issued financial statements;
(I) change of control transactions;
(J) triggering events that accelerate or increase a direct financial obligation or an obligation under an off-balance sheet arrangement; and
(K) material impairments; in each case, in a manner that complies in all material respects with the requirements specified in such form (form, except as described above or below and subject to exceptions consistent with the presentation of information in the Offering Memorandum)below; provided, however, that the Issuer shall not be so obligated required to file such reports referred to in clauses (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 or (ii) provide separate financial statements or other information contemplated by Rule 3-09, 3-10 or 3-16 of Regulation S-X, or in each case any successor provisions; provided that, if the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required by clauses (1) and (iii2) above of this Section 4.03(a) shall include a presentation of selected financial metrics of such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations.” In addition, notwithstanding the foregoing, the Issuer will not be required to (i) comply with Sections 302, 906 and 404 of the SEC if Xxxxxxxx-Xxxxx Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K. To the SEC does extent any such information is not permit furnished within the time periods specified in this Section 4.03(a) and such filinginformation is subsequently filed or furnished, in which event as applicable, the Issuer shall make available be deemed to have satisfied its obligations with respect thereto at such information time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the Trustee, rights of the Holders and prospective purchasers under Article 6 hereof if Holders of Notes, at least 30% in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) principal amount of the Exchange Actthen total outstanding Notes have declared the principal of, 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, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, outstanding the Issuer 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) The Issuer may satisfy its obligations under in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of entity; provided that the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information same is accompanied by selected financial metrics that show an explanation of the material differences (in the Issuer’s sole discretion) differences, if any, between the information relating to such parentparent entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone 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.
(c) If Substantially concurrently with respect the furnishing or making such information available to any reporting period(s) covered in the applicable reportTrustee pursuant to Section 4.03(a), the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as Issuer shall post copies of such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses Section 4.03(a) on a website (a)(iwhich may be nonpublic and may be maintained by the Issuer or a third party) to which access will be given to Holders, prospective investors in the Notes and securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer. To the extent the Issuer 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, furnish such reports to the Holders of the Notes, upon their request. The Issuer may condition the delivery of any 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 there) and information as confidential, (a)(iiii) above shall include a supplemental section in “Management’s Discussion not use such reports (and Analysis of Financial Condition the information contained therein) and Results of Operations” presenting (in a manner consistent with the presentation of information included for any purpose other than their investment or incorporated by reference potential investment in the Offering MemorandumNotes and (iii) selected financial measures of not publicly disclose any such Unrestricted Subsidiaries in reports (and the aggregate (separate from the financial information of the Issuer contained therein) and its Restricted Subsidiaries)information.
(d) Notwithstanding anything herein Delivery of such reports, information and documents to the contraryTrustee is for informational purposes only and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable for information contained therein, including the Issuer’s and any Guarantor’s compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(e) Notwithstanding any other provision of this Indenture, the Issuer will not be deemed sole remedy for an Event of Default relating to have failed the failure to comply with any of its the reporting obligations hereunder described under this covenant, shall for purposes of clause (iii) of Section 6.01(a) hereof until 120 the 365 days after the receipt occurrence of such an Event of Default consist exclusively, to the extent permitted by applicable law, of the written notice delivered thereunderright to receive additional interest on the principal amount of the Notes at a rate equal to 0.50% per annum. To This additional interest shall be payable in the extent same manner and subject to the same terms as other interest payable under this Indenture. This additional interest shall accrue on all outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations described above under this covenant first occurs to, but excluding, the 365th day thereafter (or such earlier date on which the Event of Default relating to such reporting obligations is cured or waived). If the Event of Default resulting from such failure to comply with the reporting obligations is continuing on such 365th day, such additional interest shall cease to accrue and the Notes shall be subject to the other remedies provided under Article 6 hereof.
(f) The Issuer shall also hold quarterly conference calls for the Holders of Notes to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with the Issuer’s (or as applicable, any information is of any parent entity’s) equity investors and analysts). The conference call shall be following the last day of each fiscal quarter of the Issuer and not provided within later than 20 Business Days from the time periods specified that the Issuer distributes the financial information as set forth in Section 4.03(a). The Issuer shall issue a press release announcing the time and date of such conference call (which date may be the same date on which the press release is issued) and providing instructions for Holders, securities analysts and prospective investors to obtain access to such call; provided, however, that such press release can be distributed solely to certified users of the website described in Section 4.03(c). Notwithstanding anything to the contrary in this Section 4.03, if the Issuer or any parent entity of the Issuer has furnished the Holders of Notes and filed with the SEC the reports described in this Section 4.03 and such information is subsequently providedwith respect to the Issuer or any parent entity, 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 to have been curedbe in compliance with the provisions of this Section 4.03.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the 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 Issuer shall file with the SEC (with a copy to the Trustee unless filed and available on the SEC’s XXXXX website) from and after the Issue Reset Date:
(i) within 90 days after the end of each fiscal yearyear (or, if the Spin-Off Transaction has not then been completed, 120 days for the first fiscal year ending after the Reset Date), annual reports on Form 10-K, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all the information that would be required to be contained therein, or required in such successor or comparable form;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or, if the Spin-Off Transaction has not then been completed, 60 days for the first three fiscal quarters ending after the Reset Date), reports on Form 10-Q, or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), containing substantially all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form;
(iii) promptly after the occurrence of a material event which would have been required to be reported on a Form 8-K or any successor or comparable form (if the Issuer had been a reporting company under Section 15(d) of the Exchange Act), a current report relating to such event on Form 8-K or any successor or comparable form; 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 Memorandum); provided, however, that the Issuer shall not be so obligated to file such reports referred to in clauses (i), (ii) and (iii) above with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to the Trustee, the Holders and prospective purchasers of Notes, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Issuer 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) The Issuer may satisfy its obligations under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent of the Issuer (including HGV Parent) as long as any such parent entity of the Issuer provides a Guarantee of the Notes or, if such parent does not provide a Guarantee, if such financial information is accompanied by selected financial metrics that show the material differences (in the Issuer’s sole discretion) between the information relating to such parent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other handNotes.
(c) If with respect to any reporting period(s) covered in the applicable report, the Issuer’s Unrestricted Subsidiaries (other than the Unrestricted Securitization Subsidiaries) would, individually or in the aggregate, constitute a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act (as such regulation is in effect on the Issue Date)), then the applicable annual and quarterly financial information required by clauses (a)(i) and (a)(ii) above shall include a supplemental section in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presenting (in a manner consistent with the presentation of information included or incorporated by reference in the Offering Memorandum) selected financial measures of such Unrestricted Subsidiaries in the aggregate (separate from the financial information of the Issuer and its Restricted Subsidiaries).
(d) Notwithstanding anything herein to the contrary, the 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 to have been cured.
Appears in 1 contract
