Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports: (1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K; (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and (3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement). (b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential. (c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC. (d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call. (e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries. (f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company. (g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured. (h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 2 contracts
Sources: Senior Notes Indenture (WeWork Inc.), Senior Notes Indenture (We Co.)
Reports and Other Information. (a) Notwithstanding For so long as any Securities are outstanding, the Issuer will provide to the Trustee the following reports:
(i) within 120 days after the end of each of the Issuer’s fiscal years, beginning with the fiscal year ending December 31, 2007, annual reports containing the following information in a level of detail that is comparable in all material respects to the Offering Circular: (1) audited combined consolidated balance sheets of the Issuer and Holdings I as of the end of the two most recent fiscal years and audited combined consolidated income statements and statements of cash flow of the Issuer and Holdings I for the three most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on such combined financial statements; (2) pro forma income statement and balance sheet information of the Issuer combined with Holdings I (which need not comply with Article 11 of Regulation S-X under the Exchange Act, “Regulation S-X”), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the most recently completed fiscal year unless pro forma information has been provided in a previous report pursuant to clause (ii) or (iii) of this Section 4.02(a); (3) an operating and financial review of the audited combined financial statements, including a discussion of the results of operations, financial condition, and liquidity and capital resources of the Issuer and Holdings I, and a discussion of material commitments and contingencies and critical accounting policies; (4) a description of the business, management, aggregate management compensation and shareholders of the Issuer and Holdings I, all material related party transactions and a description of all material contractual arrangements, including material debt instruments (in each case to the extent such information would be required to be disclosed if the Issuer and Holdings I were reporting companies under the Exchange Act); (5) a description of material risk factors and material recent developments; (6) earnings before interest, taxes, depreciation and amortization; (7) capital expenditures; (8) depreciation and amortization; (9) income (loss) from operations; and (10) information for the guarantor, and the non-guarantor, Subsidiaries substantially consistent with the disclosure on this topic contained in the Offering Circular; provided that any item of disclosure that complies in all material respects with the requirements that would be applicable under Form 20-F under the Exchange Act with respect to such item will be deemed to satisfy the Issuer’s or Holdings I’s obligations under this clause (i) with respect to such item;
(ii) within 60 days following the end of the first three fiscal quarters in each fiscal year of the Issuer (commencing with the fiscal quarter ending June 30, 2007) all quarterly financial statements of the Issuer combined with Holdings I containing the following information: (1) an unaudited condensed combined consolidated balance sheet as of the end of such quarter and unaudited condensed combined statements of income and cash flow for the most recent quarter year-to-date period ending on the unaudited condensed balance sheet date, and the comparable prior year periods, together with condensed footnote disclosure; (2) pro forma combined income statement and balance sheet information of the Issuer and Holdings I (which need not comply with Article 11 of Regulation S-X), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the most recently completed fiscal year unless pro forma information has been provided in a previous report pursuant to clause (ii) or (iii) of this Section 4.02(a); (3) an operating and financial review of the unaudited combined financial statements, including a discussion of the results of operations, financial condition, and liquidity and capital resources of the Issuer and Holdings I, and a discussion of material commitments and contingencies and critical accounting policies; and (4) material recent developments and any material changes to the risk factors disclosed in the most recent annual report; provided that any item of disclosure that complies in all material respects with the requirements that would be applicable under Form 10-Q under the Exchange Act with respect to such item will be deemed to satisfy the Issuer’s obligations under this clause (ii) with respect to such item; and
(iii) promptly after the occurrence of any material acquisition, disposition or restructuring of the Issuer, Holdings I and the Restricted Subsidiaries, taken as a whole, or any senior executive officer changes at the Issuer or Holdings I or change in auditors of the Issuer or Holdings I or any other material event that the Company Issuer or Holdings I or any Restricted Subsidiaries announces publicly, a report containing a description of such event.
(b) All financial statements shall be for the Issuer combined with Holdings I. All financial statements and pro forma financial information shall be prepared in accordance with GAAP on a consistent basis for the periods presented and shall comply with the applicable requirements of any exchange on which the Securities are listed; provided, however, that the reports set forth in Section 4.02(a)(i), (ii) and (iii) above may, in the event of a change in applicable GAAP, present earlier periods on a basis that applied to such periods, subject to the provisions of this Indenture. Except as provided for above, no report need include separate financial statements for the Issuer, Holdings I or Subsidiaries of the Issuer or Holdings I or any disclosure with respect to the results of operations or any other financial or statistical disclosure not of a type included in the Offering Circular.
(c) Contemporaneously with the furnishing of each such report discussed above, the Issuer will also (a) post such report on a public website maintained by or on behalf of the Issuer, and (b) notify the Holders and a representative or employee of, or other Person affiliated with, one or more financial newswire services such as Bloomberg or a similar agency, in writing of the posting of such report on such website (which notification may not be in electronic form).
(d) In the event that the Issuer or Holdings I becomes subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, or elects to comply with such provisions, the Issuer or Holdings I, as applicable, will, for so long as it continues to file the reports required by Section 13(a) with the SEC, make available to the Trustee the annual reports, information, documents and other reports that it is required to file with the SEC pursuant to such Section 13(a) or 15(d) and any correspondence or circular sent by the Issuer or Holdings I to any shareholder or creditor thereof. By complying with the foregoing requirements of this paragraph, the Issuer and Holdings I will be deemed to have complied with the provisions contained in Sections 4.02(a) to (c) for the relevant period provided that the annual reports, information, documents and other reports filed with the SEC relate to both the Issuer and Holdings I on a combined basis.
(e) So long as any of the Securities remain outstanding and during any period during which the Issuer or Holdings I is not subject to section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning SEC with the fiscal year ending December 31, 2018), an annual report containing substantially all the certain information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10Rule 12g 3-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d2(b) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum Issuer will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material make available to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders Securities and to prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to by Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company The Issuer will also make all of the Company becomes a Guarantor foregoing information available during normal business hours at the offices of the Notes, Paying Agent in Dublin if and so long as the Company may satisfy its obligations under this Section 4.06 Securities are listed on the Irish Stock Exchange and admitted to provide consolidated financial information trading on the Alternative Securities Market thereof and the guidelines of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Irish Stock of the CompanyExchange so require.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 2 contracts
Sources: Senior Notes Indenture (RenPac Holdings Inc.), Senior Subordinated Notes Indenture (RenPac Holdings Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company shall be required to provide to the Holders Trustee and Holders, without cost to the following reportsTrustee or any Holder:
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year (beginning with the fiscal year ending December 31year, 2018), an annual report reports containing substantially all the information that would have been required to be contained in an annual report a filing with the Commission on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included K, or any successor or comparable form, or required in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-Ksuccessor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018)year, quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report filing with the Commission on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that or comparable form or required in such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures)successor or comparable form; and
(3) within ten Business Days promptly from time to time after the occurrence of each an event that would have been require information about such event to be provided to the Commission on Form 8-K, or any successor or comparable form, a current report with such information; provided that unless otherwise required to be reported under provided to Holders, current reports shall only be required with respect to the following Form 8-K Items (or its successor item): Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), Item 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 Item 2.03 (Material ImpairmentsCreation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant), Item 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 4.01 (Changes in Registrant’s Certifying Accountant), Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ), Item 5.01 (Changes in Control of Registrant), Items 5.02 (a), (b) in a and (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers) and Item 9.01 (Financial Statements and Exhibits, but only with respect to financial statements and pro forma financial information relating to transactions required to be reported pursuant to Item 2.01); provided, however, that unless otherwise required to be provided to Holders, no such current report on Form 8-K under the Exchange Act shall be required to be furnished if the Company had been a reporting company under determines in its good faith judgment that such event is not material to Holders of Notes or the Exchange Actbusiness, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatassets, for the avoidance of doubtoperations, in each of the reports delivered pursuant to clause (1) financial positions or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA prospects of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such reportSubsidiaries, presented in taken as a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet datewhole; provided, furtherhowever, that unless otherwise required to be provided to Holders:
(A) such reports required pursuant to Section 10.06(a)(1) shall not be required to include the information contemplated by Item 1B, Item 4, Item 5, Item 9A, Item 9A(T), Item 10 (but only with respect to information required by Items 405, 406 and 407 of Regulation S-K; provided, however, thatthat such reports shall be required to present the information contemplated by Item 10 with exclusions consistent with the information in (or excluded from) the Issuers’ offering memorandum, so long as the Company is not subject dated December 3, 2010, with respect to their 8.25% Exchangeable Notes due 2040), Item 11, Item 13 (both only with respect to the reporting requirements information required by Item 407 of Section 13 or 15(d) of the Exchange ActRegulation S-K; provided, however, that such reports shall be required to present the information contemplated by Items 11 and 13 with exclusions consistent with the information in (aor excluded from) the Issuers’ offering memorandum, dated December 3, 2010, with respect to their 8.25% Exchangeable Notes due 2040) and Item 14 of Form 10-K, as in effect on the Issue Date;
(B) such reports required pursuant to Section 10.06(a)(2) shall not be required to include the information contemplated by Item 4 and Item 4T of Part I thereof and Item 2 and Item 4 of Part II of Form 10-Q, as in effect on the Issue Date; and
(C) such reports required pursuant to Section 10.06(a)(1), (2) and (3) (i) shall not be required to comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)Commission, (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating with respect to any non-GAAP financial measuresmeasures contained therein), in each case, as in effect on the Issue Date or any successor provision thereto, and (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (dii) shall not be required to comply with Section 3-09 Items 402, 405, 406, 407 and 601 of Regulation S-X K promulgated by the Commission, in each case, as in effect on the Issue Date or any successor provision thereto; in each case, in a manner that complies in all material respects with the requirements specified in such form. The Company shall make the information referred to the extent that the Company determines above in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementa) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that available by posting such information would not be material to on a publicly accessible page on the Holders Company’s website (or the business, assets, operations, financial positions or prospects that of the Company and any of its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (eparent companies), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to . To the extent not satisfied by the foregoing, the Company shall agree that, for so long as any Notes are outstanding, the Company it shall furnish to Holders and to securities analysts and prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause .
(b) The Issuers may satisfy their obligations in this Section 10.06 with respect to information relating to the Issuers by furnishing information relating to the Parent; provided that, with respect to any audited or unaudited financial statements, the same is accompanied by consolidating information that explains in reasonable detail the differences between the financial information relating to the Parent, on the one hand, and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information relating to the Trustee Issuers and posting copies of such information the Subsidiaries on a website (which may be nonpublic and may be maintained by stand-alone basis, on the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidentialother hand.
(c) Notwithstanding the foregoing, at all times that If Parent or the Company is subject has electronically filed with the Securities and Exchange Commission’s Next-Generation ▇▇▇▇▇ system (or any successor system), the reports described in clause (a) above (including any consolidating information required by clause (b), unless otherwise provided to the reporting requirements of Section 13 or 15(d) of Trustee and the Exchange ActHolders), the Company Issuers shall file with be deemed to have satisfied the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SECforegoing requirements.
(d) In addition, no later than fifteen Business Days after The Issuers shall also hold quarterly conference calls for the date Holders of the annual and quarterly Notes to discuss financial information for the prior previous quarter. The conference call shall be following the last day of each fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions quarter of the Company. No fewer Issuers and not later than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain ten business days from the time and that the date of such conference call and direct Issuers distribute the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.set forth in
Appears in 2 contracts
Sources: Note Purchase Agreement (Clearwire Corp /DE), Note Purchase Agreement (Sprint Nextel Corp)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Company may not be subject Issuer, will furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reportsTrustee:
(1i) within 90 120 days after the end of each the Parent’s fiscal year (beginning with the fiscal year ending December 31September 30, 2018)2012, an annual reports containing the following information with a level of detail that is substantially comparable and similar in scope to the Offering Memorandum (with appropriate revisions, as reasonably determined by the Parent to reflect segment reporting): (1) audited consolidated balance sheet of the Parent as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of the Parent for the three most recent fiscal years, including complete footnotes to such financial statements and the report containing substantially all of the independent auditors on the financial statements; (2) pro forma income statement and balance sheet information that would have been required to be contained in an annual report on Form 10-K under of the Exchange Act if the Company had been a reporting company under the Exchange Act Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (but only to the extent similar that such pro forma financial information is included has been required to be disclosed for such acquisitions, dispositions, or recapitalizations by the JSE Limited or other regulatory authority) that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates (unless such pro forma information has been provided in a previous report pursuant to clause 2 or 3 below); (3) an operating and financial review of the Offering Memorandum)audited financial statements, including a “Management’s discussion and analysis of the results of operations (including a discussion by business segment), financial condition and results of operations” section liquidity and capital resources, and a report on discussion of material commitments and contingencies and critical accounting policies; (4) a description of the annual financial statements by business, management and shareholders of the Company’s independent registered public accounting firmParent, material affiliate transactions and material debt instruments; and (5) risk factors and material recent developments; provided that any item of disclosure that complies in all material respects with the requirements applicable under Form 20-F under the U.S. Exchange Act for annual reports with respect to such annual report shall not item will be required deemed to contain information required by Items 9A satisfy the Parent’s obligations under this clause (controls and procedures), 10 (directors, executive officers and corporate governancei) and 11 (executive compensation) of Form 10-Kwith respect to such item;
(2ii) within 45 60 days after following the end of each of the first three fiscal quarters of in each fiscal year (of the Parent beginning with the fiscal quarter ending June 30July 1, 2018)2012, quarterly reports with respect to containing the most recent fiscal following information: (1) an unaudited condensed consolidated balance sheet as of the end of such quarter and year-to-unaudited condensed statements of income and cash flow for the quarterly and year to date period containing substantially all periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for the Parent, together with condensed footnote disclosure; (2) pro forma income statement and balance sheet information that would have been required to be contained in a quarterly report on Form 10-Q under of the Exchange Act if the Company had been a reporting company under the Exchange Act Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (but only to the extent similar that such pro forma financial information has been required to be disclosed for such acquisitions, dispositions, or recapitalizations by the JSE Limited or other regulatory authority) that have occurred since the beginning of the most recently completed fiscal quarter as to which such quarterly report relates; (3) an operating and financial review of the unaudited financial statements (including a discussion by business segment), including a discussion of the consolidated financial condition and results of operations of the Parent and any material change between the current quarterly period and the corresponding period of the prior year; and (4) material recent developments; provided that (for so long as the JSE Listing Requirements require interim reports) any item of disclosure that complies in all material respects with the requirements applicable under the JSE Listing Requirements for interim reports with respect to such item will be deemed to satisfy the Parent’s obligations under this clause (ii) with respect to such item; and
(iii) promptly after the occurrence of any material acquisition, disposition or restructuring of the Parent and the Restricted Subsidiaries, taken as a whole, or any senior executive officer changes at the Parent or change in auditors of the Parent or any other material event that the Parent announces publicly, a report containing a description of such event (but only to the extent that such acquisition, disposition, restructuring, change or event has been required to be publicly announced or disclosed by the JSE Limited Listing Requirements for so long as the Parent is subject thereto).
(b) The annual report required by the preceding paragraph will include summary condensed consolidating, income statement and balance sheet information in respect of the Guarantors and the non-Guarantors; provided, however, that this requirement shall not be applicable during a Suspension Period. In addition, if the Parent has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Subsidiaries are Significant Subsidiaries, 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, of the financial condition and results of operations of the Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Parent.
(c) All financial statements shall be prepared in accordance with IFRS. Except as provided for above, no report need include separate financial statements for the Parent or Subsidiaries of the Parent or any disclosure with respect to the results of operations or any other financial or statistical disclosure not of a type included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and.
(3d) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatIn addition, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as any Notes remain outstanding and if the Company Parent is not neither subject to the reporting requirements of Section 13 or 15(d) of the U.S. Exchange Act, such reports (anor exempt from reporting pursuant to Rule 12g3-2(b) shall not be required under the U.S. Exchange Act, the Parent has agreed that it will furnish to comply with Section 302 or 404 the holders of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the U.S. Securities Act. The requirements set forth .
(e) Contemporaneously with the furnishing of each such report discussed above, the Parent will also (a) file a press release with the appropriate internationally recognized wire services in this clause connection with such report or (b) and post such report on the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to Parent’s website. For so long as the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company Parent is subject to the reporting requirements of Section 13 13(a) or 15(d) of the U.S. Exchange Act, or elects to comply with such provisions, the Company shall Parent will, for so long as it continues to file the reports required by Section 13(a) with the Commission, make available to the Trustee the annual reports, information, documents and other reports that the Parent is required to file with the SEC within Commission pursuant to such Section 13(a) or 15(d). The Parent will also make available copies of all reports required by clauses (i) through (iii) of Section 4.03(a), if and so long as the time periods specified Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted for trading on the Euro MTF and the rules of the Luxembourg Stock Exchange so require, at the offices of the Paying Agent in the SEC’s rules and regulations that are then applicable Luxembourg or, to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements extent and in the “Management’s discussion and analysis of financial condition and results of operations” sectionmanner permitted by such rules, post such reports on the official website of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted SubsidiariesLuxembourg Stock Exchange.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Company may not be subject Issuer, will furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reportsTrustee:
(1i) within 90 120 days after the end of each the Parent’s fiscal year (beginning with the fiscal year ending December 31September 30, 2018)2009, an annual reports containing the following information with a level of detail that is substantially comparable and similar in scope to the Offering Memorandum (with appropriate revisions, as reasonably determined by the Parent to reflect segment reporting) and the following information: (1) audited consolidated balance sheet of the Parent as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of the Parent for the three most recent fiscal years, including complete footnotes to such financial statements and the report containing substantially all of the independent auditors on the financial statements; (2) pro forma income statement and balance sheet information that would have been required to be contained in an annual report on Form 10-K under of the Exchange Act if the Company had been a reporting company under the Exchange Act Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (but only to the extent similar that such pro forma financial information is included has been required to be disclosed for such acquisitions, dispositions, or recapitalizations by the JSE Limited or other regulatory authority) that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates (unless such pro forma information has been provided in a previous report pursuant to clause 2 or 3 below); (3) an operating and financial review of the Offering Memorandum)audited financial statements, including a “Management’s discussion and analysis of the results of operations (including a discussion by business segment), financial condition and results of operations” section liquidity and capital resources, and a report on discussion of material commitments and contingencies and critical accounting policies; (4) a description of the annual financial statements by business, management and shareholders of the Company’s independent registered public accounting firmParent, material affiliate transactions and material debt instruments; and (5) risk factors and material recent developments; provided that any item of disclosure that complies in all material respects with the requirements applicable under Form 20-F under the U.S. Exchange Act for annual reports with respect to such annual report shall not item will be required deemed to contain information required by Items 9A satisfy the Parent’s obligations under this clause (controls and procedures), 10 (directors, executive officers and corporate governancei) and 11 (executive compensation) of Form 10-Kwith respect to such item;
(2ii) within 45 60 days after following the end of each of the first three fiscal quarters of in each fiscal year (of the Parent beginning with the fiscal quarter ending June 3028, 2018)2009, quarterly reports with respect to containing the most recent fiscal following information: (1) an unaudited condensed consolidated balance sheet as of the end of such quarter and year-to-unaudited condensed statements of income and cash flow for the quarterly and year to date period containing substantially all periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for the Parent, together with condensed footnote disclosure; (2) pro forma income statement and balance sheet information that would have been required to be contained in a quarterly report on Form 10-Q under of the Exchange Act if the Company had been a reporting company under the Exchange Act Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (but only to the extent similar that such pro forma financial information is included in has been required to be disclosed for such acquisitions, dispositions, or recapitalizations by the Offering MemorandumJSE Limited or other regulatory authority) that have occurred since the beginning of the most recently completed fiscal quarter as to which such quarterly report relates; (3) an operating and financial review of the unaudited financial statements (including a discussion by business segment), including a “Management’s discussion and analysis of the consolidated financial condition and results of operations” section operations of the Parent and unaudited any material change between the current quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 period and the corresponding period of the prior year; and (or any successor provision)4) material recent developments; provided that (for so long as the JSE Listing Requirements require interim reports) any item of disclosure that complies in all material respects with the requirements applicable under the JSE Listing Requirements for interim reports with respect to such quarterly report shall not item as of the Issue Date will be required deemed to contain satisfy the information required by Part I, Item 4 of Form 10-Q Parent’s obligations under this clause (controls and procedures)ii) with respect to such item; and
(3iii) within ten Business Days promptly after the occurrence of each any material acquisition, disposition or restructuring of the Parent and the Restricted Subsidiaries, taken as a whole, or any senior executive officer changes at the Parent or change in auditors of the Parent or any other material event that would have the Parent announces publicly, a report containing a description of such event (but only to the extent that such acquisition, disposition, restructuring, change or event has been required to be reported under Items 2.01 (Completion of Acquisition publicly announced or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required disclosed by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, JSE Limited Listing Requirements for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementthereto).
(b) The annual report required by the preceding paragraph will include summary condensed consolidating, income statement and balance sheet information in respect of the Guarantors and the non-Guarantors of the Notes; provided, however, that this requirement shall not be applicable during a Suspension Period. In addition, if the Parent has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Subsidiaries are Significant Subsidiaries, 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, of the financial condition and results of operations of the Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Parent.
(c) All financial statements shall be prepared in accordance with IFRS. Except as provided for above, no report need include separate financial statements for the Parent or Subsidiaries of the Parent or any disclosure with respect to the extent results of operations or any other financial or statistical disclosure not satisfied by of a type included in the foregoingOffering Memorandum.
(d) In addition, for so long as any Notes are remain outstanding, the Company shall Issuer has agreed that it will furnish to Holders the holders and to securities analysts and prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the U.S. Securities Act. The requirements set forth .
(e) Contemporaneously with the furnishing of each such report discussed above, the Parent will also (a) file a press release with the appropriate internationally recognized wire services in this clause connection with such report or (b) and post such report on the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to Parent’s website. For so long as the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company Parent is subject to the reporting requirements of Section 13 13(a) or 15(d) of the U.S. Exchange Act, or elects to comply with such provisions, the Company shall Parent will, for so long as it continues to file the reports required by Section 13(a) with the Commission, make available to the Trustee the annual reports, information, documents and other reports that the Parent is required to file with the SEC within Commission pursuant to such Section 13(a) or 15(d). The Parent will also make available copies of all reports required by clauses (i) through (iii) of Section 4.03(a), if and so long as the time periods specified Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted for trading on the Euro MTF and the rules of the Luxembourg Stock Exchange so require, at the offices of the Paying Agent in the SEC’s rules and regulations that are then applicable Luxembourg or, to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements extent and in the “Management’s discussion and analysis of financial condition and results of operations” sectionmanner permitted by such rules, post such reports on the official website of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted SubsidiariesLuxembourg Stock Exchange.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding, the Company shall provide furnish to the Holders the following reports:
Trustee: (1) within 90 120 days after the end of each fiscal year end of the Company, audited year-end consolidated financial statements of the Company and its Subsidiaries (beginning including a balance sheet, statement of operations and a statement of cash flows and related footnotes) prepared in accordance with GAAP, except as noted therein, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a presentation of earnings before interest, taxes, depreciation and amortization of the Company and its Subsidiaries (all of the foregoing financial information to be prepared on a basis substantially consistent with the fiscal year ending December 31, 2018), an annual report containing substantially all the corresponding financial information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, unaudited quarterly consolidated financial statements of the Company and its Subsidiaries (beginning including a balance sheet, statement of operations or a statement of cash flows and related footnotes) prepared in accordance with GAAP, except as noted therein, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a presentation of earnings before interest, taxes, depreciation and amortization of the Company and its Subsidiaries (all of the foregoing financial information to be prepared on a basis substantially consistent with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the corresponding financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten (10) Business Days after the occurrence of each event such an event, the information that would have been be required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes contained in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report filings with the SEC on Form 8-K under the Exchange Act Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b), 5.02(c) and 5.02(d) (other than with respect to information required or contemplated by Item 402 of Regulation S-K) if the Company had been a reporting company under the Exchange Actwere required to file such reports; provided, however, that no such current reports containing substantially all the information that would have been report will be required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act furnished if the Company had been a reporting company under determines in its good faith judgment that such event is not material to Holders or the Exchange Act; provided thatbusiness, for the avoidance of doubtassets, in each of the reports delivered pursuant to clause (1) operations, financial position or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA prospects of the Company and its consolidated Restricted Subsidiaries for Subsidiaries, taken as a whole; provided further that no such current report will be required to include a summary of the period terms of four consecutive fiscal quarters ended any employment or compensatory arrangement, agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director or officer; and (4) with respect to the annual financial statements only, a report on the date of the last balance sheet set forth in such report, presented in a manner similar to annual financial statements by Company’s independent registered public accounting firm; it being understood that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, for so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) the Company shall not be required to comply with include, except as otherwise provided in this paragraph, any other adjustment that would be required by any SEC rule, regulation or interpretation, including but not limited to any “push down” accounting adjustment.
(b) Notwithstanding the foregoing, (a) the Company will not be required to furnish any information, certificates or reports required by (i) Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K, (ii) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein or (iii) Rule 3-05, 3-09 and 3-10 of Regulation S-X; (b) such reports shall not be required to present compensation or beneficial ownership information; (c) such reports shall not be required to include any exhibits that would have been required to be filed pursuant to Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), except this clause (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect apply to any financial statements otherwise expressly required to be delivered provided under this clause Section 4.02); and the financial statements required of any acquired businesses will be limited to the financial statements (d)in whatever form) that the Company receives in connection with any such acquisition, notwithstanding whether or not audited.
(c) The Company shall deliver such information and such reports to any lawHolder of a Note and, rule upon request, to any beneficial owner of the Notes, in each case by posting such information on password-protected website which will require a confidentiality acknowledgment, and will make such information readily available to any prospective investor in the Notes that certifies that it is an eligible purchaser of the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or regulation any market maker in the Notes, in each case who (i) agrees to treat such information as confidential or (ii) accesses such information on such password-protected website which will require a confidentiality acknowledgment; provided that would require that some the Company shall post such information thereon and make readily available any password or other login information to any such prospective investor in the Notes, securities analyst (to the extent providing analysis of investment in the Notes) or market maker in the Notes. 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 within ten (10) Business Days after distribution of such financial statements be audited, information or otherwise providing substantially comparable availability of such reports (as determined by the Company may nonetheless deliver unaudited financial statements in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private electronic information service shall constitute substantially comparable availability); it being understood that any customary quarterly earnings calls with public equity holders shall be deemed to satisfy constitute such requirement) quarterly conference calls for all Holders and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)securities analysts.
(bd) In addition, to To the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall will also furnish to Holders and Holders, securities analysts (to prospective purchasers the extent providing analysis of investment in the Notes, ) and prospective investors in the Notes upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of so long as 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 are not freely transferable under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as an Unrestricted Subsidiaries Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, either individually or collectivelyif taken together as one Subsidiary, held more than 10.0% of Consolidated Total Assets as would constitute a Significant Subsidiary of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet dateCompany, then the annual and quarterly financial information required by clauses (a)(1) and (2) of Section 4.06(a) 4.02 shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” sectionthereto, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the such Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the The Company will be deemed to have satisfied its obligations furnished the reports referred to in Section 4.02(a) if the Company has filed reports containing such information with respect thereto at the SEC. The Trustee shall have no duty to monitor whether any such time and any Default that has not become an Event of Default with respect thereto shall be deemed to filings have been curedmade.
(hg) Delivery of the such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive knowledge or 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 conclusively rely exclusively on an Officer’s Certificate).
(h) To the extent that any reports or other information is not furnished within the time periods specified above and such reports or other information is subsequently furnished prior to the time such failure results in an Event of Default, the Issuers will be deemed to have satisfied their obligations with respect thereto and any Default with respect thereto shall be deemed to have been cured. The Trustee shall Notwithstanding anything herein to the contrary, the Issuers will not be deemed to have no liability or responsibility failed to comply with any of their obligations hereunder for purposes of Section 6.01(c) until 90 days after the filing, timeliness or content date of any such reportreport hereunder is due.
Appears in 2 contracts
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall Issuer will provide to the Holders and the Trustee the following reports:
(1i) within 90 days after the end of each fiscal year (beginning with or such longer period as would be provided by the fiscal year ending December 31, 2018SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), an annual report containing substantially all containing:
(A) audited annual financial statements of the Issuer and a report thereon from the Issuer’s independent accounting firm;
(B) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section similar in scope to the information that would have been required to be contained in an annual report on under such caption by Form 10-K under the Exchange Act if the Company had been a reporting company under of the Exchange Act (but only which shall include a reasonably detailed description during the most recently completed fiscal quarter of any Permitted Investment in excess of $15.0 million made pursuant to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A clause (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation24) of Form 10-Kthe definition thereof); and
(C) until the MYT Completed Disposition occurs, a narrative discussion of the key financial metrics of the MYT Entities consistent with a customary earnings press release;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with or such longer period as would be permitted by the fiscal quarter ending June 30, 2018SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), quarterly reports with respect containing:
(A) unaudited quarterly financial statements of the Issuer for the fiscal quarter most recently ended and the corresponding fiscal quarter of the prior fiscal year;
(B) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” similar in scope to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on under such caption by Form 10-Q under of the Exchange Act if and, in the Company had been a reporting company under case of the Exchange Act (but only second and third fiscal quarters, the period from the beginning of such fiscal year to the extent similar information is included end of such fiscal quarter (which shall include a reasonably detailed description during the most recently completed fiscal quarter of any Permitted Investment in the Offering Memorandum), including a “Management’s discussion and analysis excess of financial condition and results of operations” section and unaudited quarterly financial statements reviewed $15.0 million made pursuant to Statement on Auditing Standards No. 100 clause (or any successor provision); provided that such quarterly report shall not be required to contain 24) of the information required by Part I, Item 4 of Form 10-Q (controls and proceduresdefinition thereof); and
(3C) until the MYT Completed Disposition occurs, a narrative discussion of the key financial metrics of the MYT Entities consistent with a customary earnings press release; and
(iii) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a time period specified for filing current report reports on Form 8-K under by the Exchange Act if the Company had been a reporting company under the Exchange ActSEC, all current reports containing substantially all the information that would have been be required by the foregoing items of Form 8-K to be contained in a current report filed with the SEC on Form 8-K under the Exchange Act if the Company had been Issuer were required to file such reports for any of the following events (A) significant acquisitions or dispositions by the Issuer or its Restricted Subsidiaries or the MYT Entities, (B) the bankruptcy of the Issuer or a reporting company under Significant Subsidiary or of any of the Exchange Act; provided thatMYT Entities, (C) the acceleration of any Indebtedness of the Issuer or any Restricted Subsidiary or any of the MYT Entities having a principal amount in excess of $15.0 million, (D) a change in the Issuer’s certifying independent auditor, (E) the appointment or departure of the Chief Executive Officer or Chief Financial Officer (or persons fulfilling similar duties) of the Issuer or any of the MYT Operating Entities, (F) non-reliance on previously issued financial statements of the Issuer or the MYT Entities, (G) change of control transactions with respect to the Issuer or the MYT Entities, (H) entering into, materially modifying or terminating material contracts of the Issuer or its Restricted Subsidiaries (for the avoidance of doubt, excluding officer employment arrangements) and (I) the incurrence of costs associated with exit or disposal activities by the Issuer, its Restricted Subsidiaries or the MYT Entities; and
(iv) In addition, the Issuer shall provide, in each the same manner as the reports described above, copies of all operative Indebtedness Documents (including full and complete schedules and exhibits thereto) with respect to any outstanding Indebtedness of the reports delivered pursuant Issuer and its Restricted Subsidiaries or the MYT Entities whose principal amount (or committed amount) exceeds $25.0 million. The information described in clauses (iii) and (iv) above with respect to clause the MYT Entities need not be provided after the MYT Completed Disposition occurs.
(1b) or (2) aboveFor the avoidance of doubt, notwithstanding the Company shall set forth foregoing, (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall Issuer will not be required to comply with furnish any information, certificates or reports required by (A) Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)any non-generally accepted accounting principles financial measures contained therein, (bii) shall not be required the reports referred to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall above will not be required to contain a the separate financial footnote for Guarantors and Non-Guarantor Subsidiaries statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by and (iii) the SEC (except summary financial information with respect reports referred to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum above will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X present compensation or beneficial ownership information.
(c) At any time that the Issuer (and any applicable Parent Entity) is not subject to the extent that reporting requirements of Section 13 and 15(d) of the Company determines Exchange Act, in lieu of filing such reports with the SEC, the Issuer may make available such information electronically (including by posting to a non-public, password-protected website maintained by the Issuer or a third party) to any Holder, any bona fide prospective investor the Notes, any bona fide market maker (or person who intends to be a market maker) in the Note or any bona fide securities analyst, in each case, who provides to the Issuer its email address, employer name and other information reasonably requested by the Issuer. Any Person who requests such financial information from the Issuer or seeks to participate in any conference call required by this covenant will be required to represent to and agree with the Issuer (and by accepting such financial information, such Person will be deemed to have represented to and agreed with the Issuer) to the Issuer’s good faith judgment that satisfaction that:
(i) it is a Holder, a bona fide prospective investor in the Notes, a bona fide market maker (or intended market maker) with respect to the Notes or a bona fide securities analyst, as applicable;
(ii) if it is a prospective purchaser of the Notes, it is (A) a Qualified Institutional Buyer (as defined in Rule 144A of the Securities Act), (B) a non-U.S. Person (as defined in Regulation S under the Securities Act) or (C) an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act;
(iii) it will not use the information in violation of applicable securities laws or regulations;
(iv) it will not communicate the information to any Person and will keep the information confidential;
(v) it will use such information would not be material only in connection with evaluating an investment in the Notes (or, if it is a bona fide market maker or intended market maker, only in connection with making a market in the Notes or, if it is a bona fide securities analyst, for preparing analysis for Holders and prospective purchasers of the Notes that otherwise have access to the Holders or financial information in compliance with this covenant); and
(vi) it (A) will not use such information in any manner intended to compete with the business, assets, operations, financial positions or prospects business of the Company Issuer and (B) is not a Person (which includes such Person’s Affiliates, other than the Affiliates of a bona fide securities research analyst with whom such research analyst does not share such information) that is principally engaged in or derives a significant portion of its revenues from operating or owning a business which is substantially similar to the business engaged in by the Issuer and its Restricted Subsidiaries on the Issue Date.
(and with respect d) The Issuer shall respond, as promptly as practicable, in good faith, to any financial statements required request for access to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and website described above.
(e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to To the extent not satisfied by the foregoing, for so long as any Notes are outstandingoutstanding (unless satisfied and discharged or defeased), the Company shall Issuer will furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause Act (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Actany successor provision)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(cf) Notwithstanding the foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Issuer, those of any Parent Entity; provided that, if the financial information so furnished relates to such Parent Entity, the same is accompanied by consolidating information, which may be posted to the website of the Issuer or on a non-public, password-protected website maintained by the Issuer or a third party, which explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand.
(g) Issuer will be deemed to have satisfied the reporting requirements of Section 3.2(a) if (i) at all times any time that the Company Issuer or any Parent Entity is subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActAct or is a voluntary filer, the Company shall file Issuer or any Parent Entity has filed such reports containing such information (including the information required pursuant to Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC within via ▇▇▇▇▇ to the extent it is otherwise provided to Holders in accordance with this Section 3.2) with the SEC via the ▇▇▇▇▇ (or successor) filing system or (ii) at any time periods specified in that the Issuer or any Parent Entity does not file such reports with the SEC via the ▇▇▇▇▇ (or a successor) filing system, the Issuer or any Parent Entity makes such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2. Notwithstanding the foregoing, the Trustee shall have no obligation to monitor or confirm, on a continuing basis or otherwise, whether the Issuer or any Parent Entity posts such reports, information and documents on any website or the SEC’s rules and regulations that are then applicable ▇▇▇▇▇ service, or to collect any such information from the Company all the reports and information described in Section 4.06(a), but without giving effect to Issuer’s or any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by Parent Entity’s website or the SEC’s ▇▇▇▇▇ service.
(dh) In addition, no later than fifteen Business Days Promptly after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(13.2(a)(i) or 4.06(a)(2) aboveSection 3.2(a)(ii), the Company Issuer will hold a quarterly conference call to review the most recent financial results, which shall also hold live quarterly conference calls with the opportunity to ask questions include a discussion of the Companyfinancial metrics of the MYT Entities and a reasonable question and answer session open to all invited call participants. No fewer than five Business Days prior Prior to the date such conference call is to be held, the Company shall issue Issuer will post to its website or a press release to non-public, password-protected website maintained by the appropriate U.S. wire services announcing Issuer or a third party an announcement of such quarterly conference call for the benefit of the Trustee, the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company)Notes, securities analysts and market making financial institutions, which press release shall announcement will contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company Issuer (for whom contact information shall will be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that any Person who attends such conference call with the Issuer will be required to represent to and agree with the Issuer (1) and by attending such financial statements are accompanied by consolidating financial information for conference call, such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company person will be deemed to have satisfied its obligations represented and agreed with respect thereto at such time and any Default that has not become an Event the Issuer) to clauses (i) through (vi) of Default with respect thereto shall be deemed to have been curedSection 3.2(c).
(hi) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s its 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 CompanyIssuers’, any Parent Entity’s, any Subsidiary 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 conclusively rely exclusively on an Officer’s CertificateCertificate delivered pursuant to this Indenture). The Trustee shall have no liability or responsibility for the filingcontent, filing or timeliness or content of any such report, information or document delivered or filed under or in connection with this Indenture or the transactions contemplated thereunder.
Appears in 2 contracts
Sources: Indenture (Neiman Marcus Group LTD LLC), Indenture (Neiman Marcus Group LTD LLC)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company Holdings shall provide to the Holders the following reportsfurnish:
(1) within 90 days after the end of each fiscal year (beginning with of Holdings ending after the Issue Date, the consolidated financial statements of Holdings for such fiscal year ending December 31and the prior fiscal year prepared in accordance with GAAP, 2018)together with a report thereon by Holdings’ independent auditors, an annual report containing and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially all the information similar to that which would have been required to be contained included in an annual report Annual Report on Form 10-K under or any successor form filed with the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements SEC by the Company’s independent registered public accounting firm; provided that such annual report shall not be Holdings assuming Holdings were required to contain information required by Items 9A (controls prepare and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-Kfile such form;
(2) within 45 days after the end of each of the first three fiscal quarters of in each fiscal year (of Holdings, beginning with the first such fiscal quarter ending June 30after the Issue Date, 2018)the condensed consolidated financial statements of Holdings for such fiscal quarter and the comparable period in the prior fiscal year prepared in accordance with GAAP, quarterly reports together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the most recent fiscal quarter and year-to-date period containing such financial statements substantially all the information similar to that which would have been required to be contained included in a quarterly report Quarterly Report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be form filed with the SEC by Holdings assuming Holdings were required to contain the information required by Part I, Item 4 of Form 10-Q (controls prepare and procedures)file such form; and
(3) within ten Business Days after information substantially similar to the occurrence of each event information that would have been be required to be reported under Items included in a Current Report on Form 8-K (or any successor form) filed with the SEC by Holdings assuming Holdings were required to prepare and file such form pursuant to: Item 1.01 (Entry into a Material Definitive Agreement); Item 1.02 (Termination of a Material Definitive Agreement); Item 1.03 (Bankruptcy or Receivership); Item 2.01 (Completion of Acquisition or Disposition of Assets), ; Item 2.04 (Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement); Item 2.05 (Costs Associated with Exit or Disposal Activities); Item 2.06 (Material Impairments), ; Item 4.01 (Changes in Registrant’s Certifying AccountantAccountants), ; Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ); Item 5.01 (Changes in Control of Registrant); Item 5.02(b) (Departure of Directors or Certain Officers); and Item 5.02(c) (Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers); in a current report on each case, or any comparable provisions of amended Form 8-K under or a successor form, within five Business Days of the Exchange Act if the Company had been due date for filing such Current Report by a reporting company under the Exchange Act, current issuer.
(b) The reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of furnished by Section 13 or 15(d) of the Exchange Act, such reports (a4.02(a) shall not be required to to: (i) comply with any of Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Item 9A of Form 10-K and Items 307 and 308 of Regulation S-K promulgated by the SEC or SEC, Item 302 of Regulation S-K, Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein), Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S3-K (relating to non-GAAP financial measures)09, (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC Section 13(p) (except summary financial information with respect to Non-Guarantor Subsidiaries including on Form SD under Rule 13p-1), Section 13(q) or Section 13(r) of the type and scope included Exchange Act, in the Offering Memorandum will be required)each case, or any successor provision thereto, or (dii) include separate financial statements of Note Guarantors.
(c) A report required by Section 4.02(a) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that deemed furnished if Holdings: (i) delivers such requirement report or other information physically or electronically to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X Trustee; and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting posts copies of such information report on a website (which may be nonpublic password protected and may be maintained by the Company Holdings or a third party) to which access will be given to Holderssecurities analysts, bona fide Holders and prospective purchasers of the Notes (which prospective purchasers will may be limited to “qualified institutional buyers” within the meaning of (as defined in Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of Holdings and who acknowledge the Company)confidentiality of the information.
(d) In addition, securities analysts to the extent not satisfied by the reports required by this covenant or otherwise made publicly available by Holdings, Holdings shall furnish to Holders thereof and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided prospective investors in such noticeNotes, upon their request, the information, if any, required to be delivered pursuant to Rule 144A(d)(4) to obtain information on how to access such quarterly conference call(or any successor provision) of the Securities Act.
(e) If Notwithstanding the Company has designated any foregoing, at all times that Holdings is subject to the reporting requirements of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually Section 13 or collectively, held more than 10.0% of Consolidated Total Assets as 15(d) of the end Exchange Act or is otherwise permitted to file periodic reports with the SEC, Holdings may satisfy all the requirements of this covenant by filing with the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (SEC within the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or time periods specified in the footnotes SEC’s rules and regulations that are then applicable to Holdings all the financial statements reports and information described in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted SubsidiariesSection 4.02(a) through (d).
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company[reserved].
(g) Notwithstanding anything herein to the contrary, Holdings shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of 6.01(a)(3) until 60 days after the date any report hereunder is due. To the extent any information is not provided within the time periods specified in this Section 4.06 4.02 and such information is subsequently provided, the Company Holdings will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery Within a reasonable period before or after providing any report required by Section 4.02(a)(1) or (a)(2), Holdings shall hold a conference call in which securities analysts, Holders and prospective investors in the Notes that certify that they are qualified institutional buyers or non-U.S. persons may participate to discuss results of operations for the relevant period and related matters. At least three Business Days prior to any such call, Holdings shall issue a press release or post a notice on a website, which may be the password protected website used by Holdings to provide reports and other information specified in the third paragraph of this covenant, providing the date and time of any such call and indicating the manner in which securities analysts, Holders, and qualified prospective investors may obtain access to the conference call. For the avoidance of doubt, Holdings will continue to hold such calls to the extent Holdings is no longer subject to the reporting requirements of Section 13 or Section 15(d) of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants Exchange Act.
(as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). i) The Trustee shall have no liability obligation to determine whether or responsibility for not such information, documents or reports required by this covenant have been filed with the filing, timeliness SEC or content of any such reportposted as required by this covenant or comply with the Trust Indenture Act.
Appears in 2 contracts
Sources: Indenture (Graftech International LTD), Indenture (Graftech International LTD)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Company may not be subject Issuer, will furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reportsTrustee:
(1i) within 90 120 days after the end of each the Parent’s fiscal year (beginning with the fiscal year ending December 31October 2, 2018)2011, an annual reports containing the following information with a level of detail that is substantially comparable and similar in scope to the Offering Memorandum (with appropriate revisions, as reasonably determined by the Parent to reflect segment reporting): (1) audited consolidated balance sheet of the Parent as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of the Parent for the three most recent fiscal years, including complete footnotes to such financial statements and the report containing substantially all of the independent auditors on the financial statements; (2) pro forma income statement and balance sheet information that would have been required to be contained in an annual report on Form 10-K under of the Exchange Act if the Company had been a reporting company under the Exchange Act Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (but only to the extent similar that such pro forma financial information is included has been required to be disclosed for such acquisitions, dispositions, or recapitalizations by the JSE Limited or other regulatory authority) that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates (unless such pro forma information has been provided in a previous report pursuant to clause 2 or 3 below); (3) an operating and financial review of the Offering Memorandum)audited financial statements, including a “Management’s discussion and analysis of the results of operations (including a discussion by business segment), financial condition and results of operations” section liquidity and capital resources, and a report on discussion of material commitments and contingencies and critical accounting policies; (4) a description of the annual financial statements by business, management and shareholders of the Company’s independent registered public accounting firmParent, material affiliate transactions and material debt instruments; and (5) risk factors and material recent developments; provided that any item of disclosure that complies in all material respects with the requirements applicable under Form 20-F under the U.S. Exchange Act for annual reports with respect to such annual report shall not item will be required deemed to contain information required by Items 9A satisfy the Parent’s obligations under this clause (controls and procedures), 10 (directors, executive officers and corporate governancei) and 11 (executive compensation) of Form 10-Kwith respect to such item;
(2ii) within 45 60 days after following the end of each of the first three fiscal quarters of in each fiscal year (of the Parent beginning with the fiscal quarter ending June 30April 3, 2018)2011, quarterly reports with respect to containing the most recent fiscal following information: (1) an unaudited condensed consolidated balance sheet as of the end of such quarter and year-to-unaudited condensed statements of income and cash flow for the quarterly and year to date period containing substantially all periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for the Parent, together with condensed footnote disclosure; (2) pro forma income statement and balance sheet information that would have been required to be contained in a quarterly report on Form 10-Q under of the Exchange Act if the Company had been a reporting company under the Exchange Act Parent, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations (but only to the extent similar that such pro forma financial information is included in has been required to be disclosed for such acquisitions, dispositions, or recapitalizations by the Offering MemorandumJSE Limited or other regulatory authority) that have occurred since the beginning of the most recently completed fiscal quarter as to which such quarterly report relates; (3) an operating and financial review of the unaudited financial statements (including a discussion by business segment), including a “Management’s discussion and analysis of the consolidated financial condition and results of operations” section operations of the Parent and unaudited any material change between the current quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 period and the corresponding period of the prior year; and (or any successor provision)4) material recent developments; provided that (for so long as the JSE Listing Requirements require interim reports) any item of disclosure that complies in all material respects with the requirements applicable under the JSE Listing Requirements for interim reports with respect to such quarterly report shall not item will be required deemed to contain satisfy the information required by Part I, Item 4 of Form 10-Q Parent’s obligations under this clause (controls and procedures)ii) with respect to such item; and
(3iii) within ten Business Days promptly after the occurrence of each any material acquisition, disposition or restructuring of the Parent and the Restricted Subsidiaries, taken as a whole, or any senior executive officer changes at the Parent or change in auditors of the Parent or any other material event that would have the Parent announces publicly, a report containing a description of such event (but only to the extent that such acquisition, disposition, restructuring, change or event has been required to be reported under Items 2.01 (Completion of Acquisition publicly announced or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required disclosed by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, JSE Limited Listing Requirements for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementthereto).
(b) The annual report required by the preceding paragraph will include summary condensed consolidating, income statement and balance sheet information in respect of the Guarantors and the non-Guarantors; provided, however, that this requirement shall not be applicable during a Suspension Period. In addition, if the Parent has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Subsidiaries are Significant Subsidiaries, 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, of the financial condition and results of operations of the Parent and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Parent.
(c) All financial statements shall be prepared in accordance with IFRS. Except as provided for above, no report need include separate financial statements for the Parent or Subsidiaries of the Parent or any disclosure with respect to the extent results of operations or any other financial or statistical disclosure not satisfied by of a type included in the foregoingOffering Memorandum.
(d) In addition, for so long as any Notes are remain outstanding, the Company shall Parent has agreed that it will furnish to the Holders of the Notes and to prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the U.S. Securities Act. The requirements set forth .
(e) Contemporaneously with the furnishing of each such report discussed above, the Parent will also (a) file a press release with the appropriate internationally recognized wire services in this clause connection with such report or (b) and post such report on the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to Parent’s website. For so long as the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company Parent is subject to the reporting requirements of Section 13 13(a) or 15(d) of the U.S. Exchange Act, or elects to comply with such provisions, the Company shall Parent will, for so long as it continues to file the reports required by Section 13(a) with the Commission, make available to the Trustee the annual reports, information, documents and other reports that the Parent is required to file with the SEC within Commission pursuant to such Section 13(a) or 15(d). The Parent will also make available copies of all reports required by clauses (i) through (iii) of Section 4.03(a), if and so long as the time periods specified Notes are listed on the Official List of the Luxembourg Stock Exchange and admitted for trading on the Euro MTF and the rules of the Luxembourg Stock Exchange so require, at the offices of the Paying Agent in the SEC’s rules and regulations that are then applicable Luxembourg or, to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements extent and in the “Management’s discussion and analysis of financial condition and results of operations” sectionmanner permitted by such rules, post such reports on the official website of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted SubsidiariesLuxembourg Stock Exchange.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be LLC Co-Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall LLC Co-Issuer will provide to the Holders and the Trustee the following reports:
(1i) within 90 days after the end of each fiscal year (beginning with or such longer period as would be provided by the fiscal year ending December 31, 2018SEC if the LLC Co-Issuer were then subject to SEC reporting requirements as a non-accelerated filer), an annual report containing substantially all containing:
(A) audited annual financial statements of the information that would have been required to be contained in an annual LLC Co-Issuer and a report on Form 10thereon from the LLC Co-K under the Exchange Act if the Company had been a reporting company under the Exchange Act Issuer’s independent accounting firm; and
(but only to the extent similar information is included in the Offering Memorandum), including B) a “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” section and a report on similar in scope to the annual financial statements by information contained under such caption in the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-KOffering Circular;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with or such longer period as would be permitted by the fiscal quarter ending June 30, 2018SEC if the LLC Co-Issuer were then subject to SEC reporting requirements as a non-accelerated filer), quarterly reports with respect containing:
(A) unaudited quarterly financial statements of the LLC Co-Issuer for the fiscal quarter most recently ended and the corresponding fiscal quarter of the prior fiscal year; and
(B) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” similar in scope to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on under such caption by Form 10-Q under of the Exchange Act if and, in the Company had been a reporting company under case of the Exchange Act (but only second and third fiscal quarters, the period from the beginning of such fiscal year to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis end of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); andfiscal quarter.
(3iii) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a time period specified for filing current report reports on Form 8-K under by the Exchange Act if the Company had been a reporting company under the Exchange ActSEC, all current reports containing substantially all the information that would have been be required by the foregoing items of Form 8-K to be contained in a current report filed with the SEC on Form 8-K under the Exchange Act if the Company had been LLC Co-Issuer were required to file such reports for any of the following events (it being understood that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a reporting company under whole): (A) significant acquisitions or dispositions, (B) the Exchange Act; provided thatbankruptcy of the LLC Co-Issuer or a Significant Subsidiary, for (C) the acceleration of any Indebtedness of the LLC Co-Issuer or any Restricted Subsidiary having a principal amount in excess of $50.0 million, (D) a change in the Issuers’ certifying independent auditor, (E) the appointment or departure of the Chief Executive Officer or Chief Financial Officer (or persons fulfilling similar duties) of the LLC Co-Issuer or Parent, (F) non-reliance on previously issued financial statements and (G) change of control transactions.
(b) For the avoidance of doubt, in each of notwithstanding the reports delivered pursuant to clause (1) or (2) aboveforegoing, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall LLC Co-Issuer will not be required to comply with furnish any information, certificates or reports required by (A) Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)any non-generally accepted accounting principles financial measures contained therein, (bii) shall not be required the reports referred to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall above will not be required to contain a the separate financial footnote for Guarantors and Non-Guarantor Subsidiaries statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by and (iii) the SEC (except summary financial information with respect reports referred to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum above will be required), (d) shall not be required to comply with Section 3present compensation or beneficial ownership information.
(c) At any time that the LLC Co-09 of Regulation S-X Issuer (and any applicable Parent Entity) is not subject to the extent that reporting requirements of Section 13 and 15(d) of the Company determines Exchange Act, in lieu of filing such reports with the SEC, the LLC Co-Issuer may make available such information electronically (including by posting to a non-public, password-protected website maintained by the LLC Co-Issuer or a third party) to any Holder, any bona fide prospective investor of the Notes, any bona fide market maker (or person who intends to be a market maker) in the Notes or any bona fide securities analyst, in each case, who provides to the LLC Co-Issuer its email address, employer name and other information reasonably requested by the LLC Co-Issuer. Any Person who requests such financial information from the LLC Co-Issuer or seeks to participate in any conference call required by this covenant will be required to represent to and agree with the LLC Co-Issuer (and by accepting such financial information, such Person will be deemed to have represented to and agreed with the LLC Co-Issuer) to the LLC Co-Issuer’s good faith judgment that such information would not be material to satisfaction that:
(i) it is a Holder, a bona fide prospective investor in the Holders Notes, a bona fide market maker (or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and intended market maker) with respect to any financial statements required to be delivered under this clause (d)the Notes or a bona fide securities analyst, notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and as applicable;
(ii) if it is a prospective purchaser of the Company determines Notes, it is (a) a Qualified Institutional Buyer (as defined in its good faith judgment that Rule 144A of the Securities Act) or (b) a non U.S. Person (as defined in Regulation S under the Securities Act);
(iii) it will not use the information in violation of applicable securities laws or regulations;
(iv) it will not communicate the information to any Person and will keep the information confidential;
(v) it will use such information would not be material only in connection with evaluating an investment in the Notes (or, if it is a bona fide market maker or intended market maker, only in connection with making a market in the Notes or, if it is a bona fide securities analyst, for preparing analysis for Holders and prospective purchasers of the Notes that otherwise have access to the Holders or financial information in compliance with this covenant); and
(vi) it (A) will not use such information in any manner intended to compete with the business, assets, operations, financial positions or prospects business of the Company LLC Co-Issuer and (B) is not a Person (which includes such Person’s Affiliates, other than the Affiliates of a bona fide securities research analyst with whom such research analyst does not share such information) that (1) is principally engaged in a Similar Business or (2) derives a significant portion of its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule revenues from operating or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)owning a business substantially Similar Business.
(bd) In addition, to To the extent not satisfied by the foregoing, for so long as any Notes are outstandingoutstanding (unless satisfied and discharged or defeased), the Company shall LLC Co-Issuer will furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause Act (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Actany successor provision)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(ce) Notwithstanding the foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the LLC Co-Issuer, those of any Parent Entity; provided that, if the financial information so furnished relates to such Parent Entity, the same is accompanied by consolidating information, which may be posted to the website of either of the Issuers or on a non-public, password-protected website maintained by the LLC Co-Issuer or a third party, which explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the LLC Co-Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand.
(f) The LLC Co-Issuer will be deemed to have satisfied the reporting requirements pursuant to Section 3.2(a) if (i) at all times any time that the Company LLC Co-Issuer or any Parent Entity is subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActAct or is a voluntary filer, the Company shall file LLC Co-Issuer or any Parent Entity has filed such reports containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable via ▇▇▇▇▇ to the Company all the reports and information described extent it is otherwise provided to Holders in accordance with this Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects 3.2) with the requirements specified in SEC via the applicable forms promulgated ▇▇▇▇▇ (or successor) filing system or (ii) at any time that the LLC Co-Issuer or any Parent Entity does not file such reports with the SEC via the ▇▇▇▇▇ (or a successor) filing system, the LLC Co-Issuer or any Parent Entity makes such reports available electronically (including by the SECposting to a non-public, password-protected website as provided above) pursuant to this Section 3.2.
(dg) In addition, no later than fifteen Business Days Promptly after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(13.2(a)(i) or 4.06(a)(2) aboveSection 3.2(a)(ii), the Company shall also LLC Co-Issuer will hold live a quarterly conference calls with call to review the opportunity to ask questions of the Companymost recent financial results. No fewer than five Business Days prior Prior to the date such conference call is to be held, the Company shall issue LLC Co-Issuer will post to its website or a press release to non-public, password- protected website maintained by the appropriate U.S. wire services announcing LLC Co-Issuer or a third party an announcement of such quarterly conference call for the benefit of the Trustee, the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company)Notes, securities analysts and market making financial institutions, which press release shall announcement will contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company LLC Co-Issuer (for whom contact information shall will be provided in such notice) to obtain information on how to access such quarterly conference call; provided that any Person who attends such conference call with the LLC Co-Issuer will be required to represent to and agree with the LLC Co-Issuer (and by attending such conference call, such person will be deemed to have represented and agreed with the LLC Co-Issuer) to clauses (i) through (vi) of Section 3.2(c).
(eh) If the Company LLC Co-Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such to be Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a3.2(a) shall will also include a reasonably detailed presentation, as determined in good faith by senior management of the CompanyLLC Co-Issuer, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” section, of the financial condition and results of operations of the Company LLC Co-Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 2 contracts
Sources: Indenture (Neiman Marcus Group LTD Inc.), Indenture (Neiman Marcus Group LTD Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Senior Notes are outstanding, Parent shall have its annual consolidated financial statements audited by a nationally recognized firm of independent auditors and its interim consolidated financial statements reviewed by a nationally recognized firm of independent auditors in accordance with Statement on Auditing Standards No. 100 issued by the Company may American Institute of Certified Public Accountants (or any similar replacement standard). In addition, so long as any Senior Notes are outstanding, whether or not be Parent is subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Company Parent shall provide furnish to the Holders the following reports:
(1x) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an all annual report containing and quarterly financial statements substantially all the information in forms that would have been be required to be contained in an annual report a filing with the SEC on Form Forms 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)and 10-Q of Parent, including plus a “Management’s discussion Discussion and analysis Analysis of Financial Condition and Results of Operations” (“MD&A”) with respect to the Issuer and (y) with respect to the annual financial condition and results of operations” section and statements only, a report on the annual financial statements by the CompanyParent’s or the Issuer’s independent registered public accounting firm; provided that such annual report shall not be required to contain information provided, however, in the event the financial statements of Parent are no longer required by Items 9A Rule 3-10 of Regulation S-X (controls or any successor thereto) to include any financial statements of the Issuer and procedures)the Subsidiary Guarantors, then either (1) the financial statements of the Parent shall include the condensed combined balance sheets, statements of operations and statements of cash flow of the Issuer and the Subsidiary Guarantors presented in accordance with Rule 3-10 (directorsof Regulation S-X as in effect on the Issue Date, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
or (2) within 45 days after the Issuer shall furnish to each holder of Notes, the combined balance sheet and related statements of operations, stockholder’s equity and cash flows of the Issuer and its Subsidiaries (excluding Unrestricted Subsidiaries) for each annual and quarterly financial period, including (i) as of the end of and for each fiscal year of the Issuer, setting forth in comparative form the figures for the previous fiscal year and (ii) as of the end of and for each of the first three fiscal quarters of each fiscal year (beginning with of the issuer and then elapsed portion of such fiscal quarter ending June 30year, 2018), quarterly reports with respect to setting forth in comparative form the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, figures for the avoidance of doubt, in each corresponding period or periods of the reports delivered pursuant to clause (1) or (2) aboveprevious fiscal year, all certified by a financial officer of the Company shall set forth Issuer as permitted by GAAP; provided, however, that (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, no event shall such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule Rules 3-10 09 or Rule 3-16 of Regulation S-X promulgated by the SEC from time to time and (except summary financial information 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 Nonany non-Guarantor Subsidiaries of GAAP financial measures contained therein; and provided further that the type and scope included in the Offering Memorandum will be required), (d) Issuer shall not be required to comply with Section 3-09 furnish to the Holders a separate MD&A of Regulation S-X the Issuer and the Subsidiary Guarantors if and to the extent that the Company determines MD&A of any Parent Entity (including Parent) includes a discussion of the Issuer (in its the form of segment reporting or otherwise), which includes financial information not materially different (in the good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect Issuer) than the financial information required pursuant to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementx) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries above for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)relevant period.
(b) In additionAll such annual reports (commencing with the period ending December 31, 2019) shall be furnished within 120 days after the end of the fiscal year to which they relate, and all such quarterly reports (commencing with the period ending March 31, 2020) shall be furnished within 60 days after the end of the fiscal quarter to which they relate.
(c) Parent or the Issuer shall make available such information and such reports to the Trustee under this Indenture, to any Holder of the Senior Notes and, upon request, to any beneficial owner of the Senior Notes, in each case by posting such information on its website on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any Holder of the Senior Notes, any bonafide prospective investor in the Senior Notes, any securities analyst (to the extent providing analysis of investment in the Senior Notes) or any market maker in the Senior 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 Parent or the Issuer shall post such information thereon and make readily available any password or other login information to any such Holder of the Senior Notes, bonafide prospective investor, securities analyst or market maker; provided, further, that Parent or the Issuer, as applicable, may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, bonafide prospective investor, security analyst or market maker that is a competitor of Parent or the Issuer, as applicable and its Subsidiaries to the extent that Parent or 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.
(d) To the extent not satisfied by the foregoing, for so long Parent or the Issuer, as any Notes are outstandingthe case may be, the Company shall furnish to Holders and to prospective purchasers investors of the Senior Notes, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and Act so long as the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Senior 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 are not freely transferable under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If Any Parent Entity may satisfy the Company has designated any obligations of Parent and the Issuer set forth in this Section 4.03 by providing the requisite financial and other information of such Parent Entity instead of Parent or the Issuer; provided that to the extent such Parent Entity holds assets (other than its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually direct or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis indirect interest in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company Parent and its Restricted Subsidiaries for or the period Issuer and its Restricted Subsidiaries, as applicable) that exceeds the lesser of (i) 1.0% of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face Total Assets of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company such Parent Entity and its Restricted Subsidiaries separate from the financial condition and results of operations (ii) 1.0% of the Unrestricted total revenue for the preceding fiscal year of such Parent Entity and its Restricted Subsidiaries, then such information related to such Parent Entity shall be accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information of such Parent Entity, on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(f) In Parent or the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto Issuer shall be deemed to have been cured.
furnished the financial statements, the MD&A and such reports on the annual financial statements referred to in Section 4.03(a) if Parent, the Issuer or any Parent Entity of Parent or the Issuer, as applicable, has filed reports containing such information (h) Delivery or any such information of the reports, information and documents a Parent Entity in accordance with this Section 4.06 shall satisfy 4.03(e)) with the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reportSEC.
Appears in 1 contract
Reports and Other Information. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer shall furnish:
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after of the end of each fiscal year (beginning with the year, annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after of the end of each of the first three fiscal quarters of every fiscal year, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, in each fiscal year (beginning with the fiscal quarter ending June 30case, 2018), quarterly reports including “Business,” “Legal Proceedings,” “Defaults Upon Senior Securities,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Accounting Standards” and “Related Party Transactions” disclosures with respect to the most recent fiscal quarter periods presented to the extent such disclosures would be required in a Form 20-F or 40-F for such period and, with respect to the annual information only, a report on the annual financial statements by Holdings’ certified independent accountants (all of the foregoing financial information to be prepared on a basis substantially consistent with (i), and year-to-date period subject to exceptions substantially consistent with, the corresponding financial information included in the Offering Memorandum or (ii) the then applicable SEC requirements); and
(b) promptly from time to time after the occurrence of an event required to be therein reported, such other reports (in each case, without exhibits) containing substantially all the same information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Current Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act (other than Items 1.04 (Mine safety — reporting of shutdowns and patterns of violations), 3.01 (Notice of delisting or failure to satisfy a continued listing rule or standard; transfer of listing), 3.02 (Unregistered sales of equity securities), 3.03 (material modifications to rights of security holders) (other than as relates to debt securities), 5.03(a) (Amendments to Articles of Incorporation or Bylaws), 5.04 (Temporary suspension of trading under registrant’s employee benefit plans), 5.05 (Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics), 5.06 (Change in shell company status), 5.07 (Submission of matters to a vote of security holders), 5.08 (Shareholder director nominations), all items in Section 6 thereof and 8.01 (Other events)); provided, however, that no such report shall be required to be furnished if the Company had been a reporting company under Issuer determines in its good faith judgment that such event is not material to the Exchange ActHolders or the business, current assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries; provided, however, that in no event shall such reports containing substantially all the information that would have been be required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K comply with Regulation G under the Exchange Act if or Item 10(e) of Regulation S-K promulgated by the Company had been a reporting company under SEC with respect to any non-GAAP (non-IFRS) financial measures contained therein. Notwithstanding the Exchange Act; provided thatforegoing, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA none of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such reportreports, presented in a manner similar financial statements or other materials furnished pursuant to that found in the Offering Memorandum, clauses (a) and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(db) of the Exchange Act, such reports (a) prior paragraph shall not be required to comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and 308 of Regulation S-S- K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment Issuer will be deemed to have furnished such reports referred to above if it or any parent company that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects has provided a full and unconditional guarantee of the Company Notes has filed such reports with the SEC via the ▇▇▇▇▇ filing system and its Restricted such reports are publicly available via the ▇▇▇▇▇ filing system. For any quarterly or annual period during which (a) any of the Issuer’s Subsidiaries (are Unrestricted Subsidiaries and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules revenues, assets and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions liabilities of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectivelyin the aggregate, held more than 10.0exceed 5.0% of Consolidated the total revenues, Total Assets as Assets, or total liabilities, respectively, of the end of the most recent fiscal quarter for which internal financial statements prepared Holdings on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet datebasis, then the quarterly and annual and quarterly financial information required by Section 4.06(a) shall the preceding paragraph will include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and thereto, in the “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsthe Operations” or other comparable section, of the financial condition and results of operations of the Company Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company Subsidiaries of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that Issuer. The Issuer will (1) distribute such financial statements are accompanied by consolidating financial reports and information for such parent, electronically to the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC Trustee and (2) make available, or arrange with the Trustee for the Trustee to make available, such parent is not engaged in reports and information to any business in Holder, any material respect other than such activities as are incidental to its ownership, directly or indirectly, bona fide prospective purchaser of the Capital Stock Notes (a “Prospective Purchaser”), any bona fide security analyst or any bona fide market maker by posting such reports and information on Intralinks or any comparable password protected online data system or on a public website; provided that the Issuer shall only be required to make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker. So long as any Notes are outstanding, the Issuer will also: (1) as promptly as reasonably practicable after furnishing to the Trustee the annual and quarterly reports required by clause (a) of the Company.
first paragraph of this Section 1009 or such earlier time after the completion of such reporting period, hold a conference call to discuss the results of operations for the relevant reporting period; and (g2) To issue a press release to the appropriate nationally recognized wire services prior to the date of the conference call required to be held in accordance with clause (1) of this paragraph, announcing the time and date of such conference call and either including all information necessary to access the call or informing Holders, Prospective Purchasers, market makers and securities analysts how they can obtain such information. In addition, to the extent not satisfied by the foregoing, the Issuer shall, for so long as any Notes are outstanding, furnish to prospective investors, upon their request, any information is required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not provided within freely transferable under the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Securities Act. Delivery of the such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, 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 Company’s compliance with any of its the covenants under this Indenture (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateOfficers’ Certificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Indenture (Telesat Canada)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) : within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 20182021), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) ; within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) and within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries the disclosure contemplated by Rule 313-10 01 or Rule 313-16 02 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) . In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) . Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) . In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) . If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) . In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) . To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) . Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Master Senior Secured Notes Note Purchase Agreement (WeWork Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject So long as any Notes are outstanding, Parent shall furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reportsHolders:
(1) (x) within 90 120 days after the end of each fiscal year ending after the Effective Date (beginning with or if such day is not a Business Day, on the fiscal year ending December 31, 2018next succeeding Business Day), an (i) all annual report containing financial statements substantially all in the information form that would have been be required to be contained in an annual report a filing with the SEC on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act of Parent and (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and ii) a report on the annual financial statements by the CompanyParent’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A and (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2y) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year ending after the Effective Date (beginning with or if such day is not a Business Day, on the fiscal quarter ending June 30, 2018next succeeding Business Day), all quarterly reports with respect to financial statements substantially in the most recent fiscal quarter and year-to-date period containing substantially all the information form that would have been be required to be contained in a quarterly report filing with the SEC on Form 10-Q under the Exchange Act of Parent, in each case, if the Company had been Parent were required to file such forms, plus a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a customary “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations;” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(32) within ten 10 Business Days after the occurrence of each event any of the following events, such other information containing substantially the same information that would have been be required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) contained in a current report filing with the SEC on Form 8-K with respect to:
(i) the entry into or termination of material definitive agreements;
(ii) bankruptcy;
(iii) significant acquisitions or dispositions of assets (which shall only be with respect to acquisitions or dispositions 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);
(iv) costs associated with exit or disposal activities;
(v) any material charge for impairments;
(vi) a change in Parent’s certifying independent auditor;
(vii) non-reliance on previously issued financial statements;
(viii) change of control transactions;
(ix) change in fiscal year; and
(x) the Exchange Act if appointment or departure of directors or executive officers (with respect to the Company had been a reporting company principal executive officer, president, principal financial officer, principal accounting officer and principal operating officer only) to the extent required under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items Item 5.02(b) or (c) of Form 8-K (other than with respect to be contained in a current report on Form 8information otherwise required or contemplated by subclause (3) of Item 5.02(c) or by Item 402 of Regulation S-K under promulgated by the Exchange Act if the Company had been a reporting company under the Exchange ActSEC); provided thatprovided, for the avoidance of doubthowever, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth that (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) Parent shall not be required to comply with furnish any information, certificates or reports required by Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K K, (ii) in no event shall such information and reports be required to comply with Rule 3-05, Rule 3-10 or Rule 4-08 of Regulation S-X promulgated by the SEC or Item 601 contain any financial statements of unconsolidated subsidiaries or 50% or less owned Persons under Rule 3-09 of Regulation S-K (with respect X or any schedules required by Regulation S-X or contain separate financial statements for Parent, the Issuer, the Guarantors or other Affiliates the shares of which are pledged to exhibits), (b) shall not secure the Notes or any Note Guarantee that would be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or under Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) 3-10 of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 X or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information or comply with respect to NonArticle 11 of Regulation S-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required)X, (diii) in no event shall not such information and reports be required to comply with Section 3Regulation G under the Exchange Act or Item 10(e) of Regulation S-09 K promulgated by the SEC with respect to any non-GAAP financial measures contained therein, (iv) in no event shall such information and reports be required to comply with Items 1500 - 1508 of Regulation S-K promulgated by the SEC and Article 14 of Regulation S-X promulgated by the SEC, (v) in no event shall such information and reports be required to include any information that is not otherwise similar to information included in the extent that the Company Offering Memorandum, other than information specifically required under clause (2) above, or to contain any “segment reporting” or any earnings per share information, (vi) no such information and reports referenced under clause (2) above shall be required to be furnished if Parent determines in its good faith judgment that such the information would or event is not be material to the Holders or the business, assets, operations, operations or financial positions or prospects position of the Company Parent and its Restricted Subsidiaries Subsidiaries, taken as a whole, would otherwise cause competitive harm, or would otherwise constitute trade secrets, privileged or confidential information obtained from another Person and other proprietary information, (vii) in no event shall information and with respect 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 delivered under this clause filed as an exhibit to a current report on Form 8-K, an annual report on Form 10-K or a quarterly report on Form 10-Q, including copies or a summary of the terms of any employment or compensatory arrangement agreement, plan or understanding between Parent (d)or any of its Subsidiaries) and any director, notwithstanding manager or executive officer, of Parent (or any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementits Subsidiaries) and (eviii) shall not no current report will be required to comply be provided in connection with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)Transactions.
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential[Reserved].
(c) Notwithstanding the foregoing, at all times At any time that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Parent’s subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or if all Unrestricted Subsidiaries, either individually or collectivelyif taken together as one subsidiary, held more than 10.0% would constitute a Significant Subsidiary of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet dateParent, then the quarterly and annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.required
Appears in 1 contract
Sources: Indenture (Amentum Holdings, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Company may not be subject Issuer will furnish without cost to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to Trustee and the Holders the following reportsof Notes:
(1i) within 90 days after the end of each fiscal year (beginning with year, annual reports of the fiscal year ending December 31, 2018), an annual report Issuer containing substantially all of the information that would have been required to be contained in an annual report Annual Report on Form 10-K under the Exchange Act if the Company Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Secured Notes Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018)year, quarterly reports with respect to of the most recent fiscal quarter and year-to-date period Issuer containing substantially all of the information that would have been required to be contained in a quarterly report Quarterly Report on Form 10-Q under the Exchange Act if the Company Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Secured Notes Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3iii) within ten Business Days after 15 days of the occurrence time period specified for filing current reports on Form 8-K by the SEC, current reports containing substantially all of each event the information that would have been be required to be reported filed in a Current Report on Form 8-K under the Exchange Act on the Issue Date pursuant to Items 1.01 (Entry into a Material Definitive Agreement) (limited to agreements for business acquisitions), 1.02 (Termination of a Material Definitive Agreement) (limited to agreements for business acquisitions), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material ImpairmentsImpairment), 4.01 (Changes in Registrant’s Certifying AccountantAccountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ), 5.01 (Changes in Control of Registrant) and 9.01(a) (Financial Statements and Exhibits but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in a excess of $200.0 million for the last four completed fiscal quarters prior to the consummation of the acquisition); provided, however, that (a) no such current report on Form 8-K under the Exchange Act will be required to be furnished if the Company had been Issuer determines in its good faith judgment that such event is not material to Holders or the business, assets, operations, financial position or prospects of the Issuer and the Restricted Subsidiaries, taken as a reporting company under the Exchange Act, current reports containing substantially all the whole and (b) trade secrets and other confidential information that would have been required is competitively sensitive, or information that we are otherwise prohibited by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubtlaw or contract from disclosing, in each case in the good faith and reasonable determination of the Issuer may be excluded from disclosures; and further provided, however, that such reports delivered required pursuant to clause (1) or (2) above, the Company shall set forth clauses (i) a calculation of Adjusted EBITDA), Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d(iii) of the Exchange Act, such reports above (a) shall not be required to comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, as amended, or related Items 307 307, 308 and 308 308T of Regulation S-K promulgated by the SEC SEC, or Item 601 10(e) of Regulation S-K (with respect to exhibitsany non-GAAP financial measures contained therein), (b) shall not be required to comply with Section 13(r) of the Exchange Act Items 402 (relating except that such reports will be required to present executive compensation and beneficial ownership information only to the Iran Threat Reduction extent that and Syrian Human Rights Act) or Rule 13p-1 under in the Exchange Act same general style of presentation as such information is included in and Form SD (relating to conflict minerals) or Item 10(epresented in the Secured Notes Offering Memorandum) of Regulation S-K (relating to non-GAAP financial measures)promulgated by the SEC, (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by comply with Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by X, except that summary guarantor/non-guarantor information consistent with the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included disclosure in the Secured Notes Offering Memorandum will be required)provided, (d) shall not be required to comply with Section 3-09 of Regulation S-X include any segment or business unit level financial information except to the extent that included in the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) Secured Notes Offering Memorandum and (e) shall not be required to comply with Section 3-05 include any exhibits that would have been required to be filed pursuant to Item 601 of Regulation S-X to K. At any time that any of the extent that Issuer’s Subsidiaries are Unrestricted Subsidiaries, the annual and quarterly reports required by clauses (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) above will include the Company determines following financial information for the Unrestricted Subsidiaries in its good faith judgment the aggregate for the relevant periods: total revenues, EBITDA (on a basis substantially consistent with the presentation thereof in the Secured Notes Offering Memorandum), total assets and total liabilities; provided that such information would additional disclosure shall not be material to the Holders or the business, assets, operations, financial positions or prospects required unless such amounts exceed 10% of the Company Issuer’s total revenues, total assets or total liabilities, as applicable. The requirement to deliver any of the reports required pursuant to clauses (i), (ii) and its Restricted Subsidiaries (and iii) of this Section 4.03 may be satisfied, with respect to any financial statements required to be delivered under this clause (e)the Holders, notwithstanding any law, rule or regulation that would require that some or all by the posting of such financial statements be audited, reports within the Company may nonetheless deliver unaudited financial statements time periods specified above on Intralinks or any comparable password protected online data system requiring user identification and a confidentiality acknowledgement (the “Secured System”). If the Issuer uses the Secured System to satisfy such requirement).
(b) In additionrequirements, it shall make readily and promptly available any password or other login information relating to the extent not satisfied Secured System to Holders of the Notes, prospective investors (each a “Prospective Investor”), security analysts who have certified to the Issuer that they are reputable security analysts employed by a reputable financial institution who regularly cover or intend to cover the foregoingIssuer and the Notes (each, a “Security Analyst”) and market makers who have certified to the Issuer that they are reputable market makers who regularly make or intend to make a market in the Notes (each, a “Market Maker”), and shall make readily and promptly available on an “Investor Relations” page on its external website contact information for so being provided access to the Secured System to any Holders of the Notes, Prospective Investors, Security Analysts or Market Makers and promptly comply with any such requests for access to the Secured System. The delivery of reports to the Trustee shall be made by electronic transmission to the Trustee. So long as any Notes are outstanding, the Company Issuer will also:
(a) within twenty Business Days after furnishing to the Trustee the annual and quarterly reports required by clauses (i) and (ii) above, and unless prohibited by applicable law, hold a conference call (which may be limited to those parties that have access to the Secured System and which may, at the Issuer’s option, be held as a single call together with investors holding other securities or debt of the Issuer) to discuss such reports and the results of operations for the relevant reporting period; and
(b) issue a press release to the Secured System no fewer than three Business Days prior to the date of the conference call required to be held in accordance with this paragraph, announcing the time and date of such conference call and either including all information necessary to access the call or directing Holders of the Notes, Prospective Investors, Security Analysts and Market Makers to access the Secured System or to contact the appropriate person at the Issuer to obtain such information. The Issuer shall furnish to Holders and to prospective purchasers of the NotesNotes and Prospective Investors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of Act so long as 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 are not freely transferable under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) . Notwithstanding the foregoing, at all times that the Company is subject Issuer will be deemed to have furnished such reports referred to above to the reporting requirements of Section 13 or 15(d) Holders of the Exchange ActNotes if it has filed (or, in the Company shall file case of a Form 8-K, furnished) such reports with the SEC within via the time periods specified in ▇▇▇▇▇ filing system and such reports are publicly available. In any event, the SEC’s rules and regulations that are then applicable Issuer shall deliver copies of the reports to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the CompanyTrustee. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company Issuer becomes a Guarantor guarantor of the Notes, the Company may Issuer shall be permitted to satisfy its obligations under this Section 4.06 4.03 with respect to provide consolidated financial information of relating to the Company Issuer by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are the same is accompanied by consolidating financial information for that explains in reasonable detail the differences between the information relating to such parent, on the Companyone hand, the Guarantors and the Non-Guarantor information relating to the Issuer and its Restricted Subsidiaries in on a standalone basis, on the manner prescribed other hand. Notwithstanding anything herein to the contrary, failure by the SEC and (2) such parent is not engaged in Issuer to comply with any business in any material respect other than such activities as are incidental to of its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in obligations under this Section 4.06 and such information is subsequently provided, the Company 4.03 for purposes of clause (iii) of Section 6.01(a) hereof will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become constitute an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery thereunder until 90 days after the receipt of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the Trustee’s receipt of such reports, information and documents shall not constitute constructive written notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reportdelivered thereunder.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 20182023), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision)prepared in accordance with GAAP; provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain the disclosure contemplated by Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC or a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required)SEC, (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Third Lien Exchangeable Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Third Lien Exchangeable Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Third Lien Exchangeable Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding The Company will be permitted to satisfy its obligations under this covenant with respect to financial information relating to the foregoingCompany (including, at all times for the avoidance of doubt, the obligation to provide a calculation of Adjusted EBITDA) by furnishing financial information relating to any Parent Entity; provided that the Company same is subject accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the reporting requirements Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of Section 13 doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(d) Notwithstanding anything to the contrary set forth above, if the Company or 15(d) any Parent Entity has furnished the Holders of Third Lien Exchangeable Notes or filed with the Exchange ActSEC the reports described in the preceding paragraphs with respect to the Company or any Parent Entity, the Company shall file be deemed to be in compliance with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any provisions of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SECthis covenant.
(de) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company or any Parent Entity shall also hold live quarterly conference calls with the opportunity to ask questions of the Company or such Parent Entity, as applicable (it being understood that such quarterly conference call may be the same conference call as that held for Company’s or, as applicable, any Parent Entity’s equity investors, debt investors or analysts). No fewer than five Business Days prior Prior to the date such conference call is to be held, the Company Company, or, as applicable, the applicable Parent Entity shall issue a press release to the appropriate U.S. wire services announcing or otherwise announce such quarterly conference call for the benefit of the Holders, beneficial owners of the Third Lien Exchangeable Notes, bona fide prospective purchasers of the Third Lien Exchangeable Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain include information on how to access such quarterly conference call.
(ef) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.010.00% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on of selected financial metrics (which metrics will be selected by the face Company in its sole discretion) of the financial statements or in the footnotes to the financial statements and such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the Trustee’s receipt of such reports, information and documents shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provisions of this Third Lien Exchangeable Notes Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in or monitor any conference calls.
Appears in 1 contract
Sources: Third Lien Exchangeable Senior Secured Pik Notes Indenture (WeWork Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company shall be required to provide to the Holders Trustee and Holders, without cost to the following reportsTrustee or any Holder:
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year (beginning with the fiscal year ending December 31year, 2018), an annual report reports containing substantially all the information that would have been required to be contained in an annual report a filing with the Commission on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included K, or any successor or comparable form, or required in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-Ksuccessor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018)year, quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report filing with the Commission on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that or comparable form or required in such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures)successor or comparable form; and
(3) within ten Business Days promptly from time to time after the occurrence of each an event that would have been require information about such event to be provided to the Commission on Form 8-K, or any successor or comparable form, a current report with such information; provided that unless otherwise required to be reported under provided to Holders, current reports shall only be required with respect to the following Form 8-K Items (or its successor item): Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), Item 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 Item 2.03 (Material ImpairmentsCreation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant), Item 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 4.01 (Changes in Registrant’s Certifying Accountant), Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ), Item 5.01 (Changes in Control of Registrant), Items 5.02 (a), (b) in a and (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers) and Item 9.01 (Financial Statements and Exhibits, but only with respect to financial statements and pro forma financial information relating to transactions required to be reported pursuant to Item 2.01); provided, however, that unless otherwise required to be provided to Holders, no such current report on Form 8-K under the Exchange Act shall be required to be furnished if the Company had been a reporting company under determines in its good faith judgment that such event is not material to Holders of Notes or the Exchange Actbusiness, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatassets, for the avoidance of doubtoperations, in each of the reports delivered pursuant to clause (1) financial positions or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA prospects of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such reportSubsidiaries, presented in taken as a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet datewhole; provided, furtherhowever, that unless otherwise required to be provided to Holders:
(A) such reports required pursuant to Section 1006(a)(1) shall not be required to include the information contemplated by Item 1B, Item 4, Item 5, Item 9A, Item 9A(T), Item 10 (but only with respect to information required by Items 405, 406 and 407 of Regulation S-K; provided, however, thatthat such reports shall be required to present the information contemplated by Item 10 with exclusions consistent with the information in (or excluded from) this offering memorandum), so long as the Company is not subject Item 11, Item 13 (both only with respect to the reporting requirements information required by Item 407 of Section 13 or 15(d) of the Exchange ActRegulation S-K; provided, however, that such reports shall be required to present the information contemplated by Items 11 and 13 with exclusions consistent with the information in (aor excluded from) the offering memorandum) and Item 14 of Form 10-K, as in effect on the Issue Date;
(B) such reports required pursuant to Section 1006(a)(2) shall not be required to include the information contemplated by Item 4 and Item 4T of Part I thereof and Item 2 and Item 4 of Part II of Form 10-Q, as in effect on the Issue Date; and
(C) such reports required pursuant to Section 1006(a)(1), (2) and (3) (i) shall not be required to comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)Commission, (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating with respect to any non-GAAP financial measuresmeasures contained therein), in each case, as in effect on the Issue Date or any successor provision thereto, and (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (dii) shall not be required to comply with Section 3-09 Items 402, 405, 406, 407 and 601 of Regulation S-X K promulgated by the Commission, in each case, as in effect on the Issue Date or any successor provision thereto; in each case, in a manner that complies in all material respects with the requirements specified in such form. The Company shall make the information referred to the extent that the Company determines above in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementa) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that available by posting such information would not be material to on a publicly accessible page on the Holders Company’s website (or the business, assets, operations, financial positions or prospects that of the Company and any of its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (eparent companies), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to . To the extent not satisfied by the foregoing, the Company shall agree that, for so long as any Notes are outstanding, the Company it shall furnish to Holders and to securities analysts and prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause .
(b) The Issuers may satisfy their obligations in this Section 1006 with respect to information relating to the Issuers by furnishing information relating to the Parent; provided that, with respect to any audited or unaudited financial statements, the same is accompanied by consolidating information that explains in reasonable detail the differences between the financial information relating to the Parent, on the one hand, and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information relating to the Trustee Issuers and posting copies of such information the Subsidiaries on a website (which may be nonpublic and may be maintained by stand-alone basis, on the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidentialother hand.
(c) Notwithstanding the foregoing, at all times that If Parent or the Company is subject has electronically filed with the Securities and Exchange Commission’s Next-Generation ▇▇▇▇▇ system (or any successor system), the reports described in clause (a) above (including any consolidating information required by clause (b), unless otherwise provided to the reporting requirements of Section 13 or 15(d) of Trustee and the Exchange ActHolders), the Company Issuers shall file with be deemed to have satisfied the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SECforegoing requirements.
(d) In addition, no later than fifteen Business Days after The Issuers shall also hold quarterly conference calls for the date Holders of the annual and quarterly Notes to discuss financial information for the prior previous quarter. The conference call shall be following the last day of each fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions quarter of the CompanyIssuers and not later than ten business days from the time that the Issuers distribute the financial information as set forth in Section 1006(a)(1) and (2), as applicable above. No fewer than five Business Days two days prior to the date such conference call is to be heldcall, the Company Issuers shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (providing instructions for whom contact information shall be provided in such notice) Holders, securities analysts and prospective investors to obtain information on how access to access such quarterly call. For the avoidance of doubt, the Issuers may satisfy the requirements of this paragraph by (i) combining the conference call.
(e) If calls required above with the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as earnings conference calls of the end Parent that are held on a quarterly basis with equity holders or (ii) holding the conference calls required above within the time period required as part of any earnings calls of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis Issuers in accordance with GAAP are available (past practice. Nothing herein shall be construed so as to require the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall Issuers to include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent reports any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event Rule 3-10 or Rule 3-16 of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.Regulation S-X.
Appears in 1 contract
Sources: Indenture (Clearwire Corp /DE)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
: (1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018[2019]12), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information 12 To be updated to 2020 if the Issue Date is after the audit for 2019 is complete. -49- required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
; (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30March 31, 20182020), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
and (3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).the
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.discussion
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Reports and Other Information. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer shall furnish:
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after of the end of each fiscal year (beginning with the year, annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after of the end of each of the first three fiscal quarters of every fiscal year, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, in each fiscal year (beginning with the fiscal quarter ending June 30case, 2018), quarterly reports including “Business,” “Legal Proceedings,” “Defaults Upon Senior Securities,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Accounting Standards” and “Related Party Transactions” disclosures with respect to the most recent fiscal quarter periods presented to the extent such disclosures would be required in a Form 20-F or 40-F for such period and, with respect to the annual information only, a report on the annual financial statements by Holdings’ certified independent accountants (all of the foregoing financial information to be prepared on a basis substantially consistent with (i), and year-to-date period subject to exceptions substantially consistent with, the corresponding financial information included in the Offering Memorandum or (ii) the then applicable SEC requirements); and
(b) promptly from time to time after the occurrence of an event required to be therein reported, such other reports (in each case, without exhibits) containing substantially all the same information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Current Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if (other than Items 1.04 (Mine safety — reporting of shutdowns and patterns of violations), 3.01 (Notice of delisting or failure to satisfy a continued listing rule or standard; transfer of listing), 3.02 (Unregistered sales of equity securities), 3.03 (material modifications to rights of security holders) (other than as relates to debt securities), 5.03(a) (Amendments to Articles of Incorporation or Bylaws), 5.04 (Temporary suspension of trading under registrant’s employee benefit plans), 5.05 (Amendments to the Company had been Registrant’s Code of Ethics, or Waiver of a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each Provision of the reports delivered pursuant Code of Ethics), 5.06 (Change in shell company status), 5.07 (Submission of matters to clause a vote of security holders), 5.08 (1) or Shareholder director nominations), all items in Section 6 thereof and 8.01 (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateOther events)); provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, that no such reports (a) report shall not be required to comply with Section 302 or 404 of be furnished if the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company Issuer determines in its good faith judgment that such information would event is not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company Issuer and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d)Subsidiaries; provided, notwithstanding any lawhowever, rule or regulation that would require that some or all of in no event shall such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not reports be required to comply with Section 3-05 of Regulation S-X to G under the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(wExchange Act or Item 10(e) of Regulation S-X and (ii) K promulgated by the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and SEC with respect to any non-GAAP (non-IFRS) financial statements required to be delivered under this clause measures contained therein. For any quarterly or annual period during which (e), notwithstanding a) any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
Issuer’s Subsidiaries are Unrestricted Subsidiaries and (b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules revenues, assets and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions liabilities of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectivelyin the aggregate, held more than 10.0exceed 5.0% of Consolidated the total revenues, Total Assets as Assets, or total liabilities, respectively, of the end of the most recent fiscal quarter for which internal financial statements prepared Holdings on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet datebasis, then the quarterly and annual and quarterly financial information required by Section 4.06(a) shall the preceding paragraph will include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and thereto, in the “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsthe Operations” or other comparable section, of the financial condition and results of operations of the Company Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company Subsidiaries of the Company becomes a Guarantor Issuer. The Issuer will (1) distribute such reports and information electronically to the Trustee and (2) make available, or arrange with the Trustee for the Trustee to make available, such reports and information to any Holder, any bona fide prospective purchaser of the NotesNotes (a “Prospective Purchaser”), the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial any bona fide security analyst or any bona fide market maker by posting such reports and information of the Company by furnishing consolidated financial information relating to such parenton Intralinks or any comparable password protected online data system or on a public website; provided that the Issuer shall only be required to make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker. Notwithstanding the foregoing, (1i) such none of the reports, financial statements are accompanied by consolidating financial information for such parentor other materials furnished pursuant to clauses (a) and (b) of the first paragraph of this Section 1009 shall be required to comply with Section 302 or Section 404 of the Sa▇▇▇▇▇▇-▇▇▇▇▇ ▇ct of 2002, the Company, the Guarantors or related Items 307 and the Non308 of Regulation S-Guarantor Subsidiaries in the manner prescribed K promulgated by the SEC and (2ii) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company Issuer will be deemed to have satisfied its obligations furnished such reports referred to above if it or any parent company that has provided a full and unconditional guarantee of the Notes has filed such reports with respect either the SEC via the ED▇▇▇ ▇iling system or the System for Electronic Document Analysis and Retrieval (SEDAR) in Canada or any successor systems thereto at and such reports are publicly available via the ED▇▇▇ ▇iling system or SEDAR or any successor systems thereto. So long as any Notes are outstanding, the Issuer will also: (1) as promptly as reasonably practicable after furnishing to the Trustee the annual and quarterly reports required by clause (a) of the first paragraph of this Section 1009 or such earlier time after the 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 conference call required to be held in accordance with clause (1) of this paragraph, announcing the time and date of such conference call and either including all information necessary to access the call or informing Holders, Prospective Purchasers, market makers and securities analysts how they can obtain such information. In addition, to the extent not satisfied by the foregoing, the Issuer shall, for so long as any Default that has Notes are outstanding, furnish to prospective investors, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) freely transferable under the Securities Act. Delivery of the such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its the covenants under this Indenture (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The Notwithstanding the requirements to furnish reports, financial statements and other materials pursuant to clauses (a) and (b) of the first paragraph of this Section 1009, in the event that the Issuer, or any parent or successor thereto, is a “reporting issuer” (or its equivalent) in any province of Canada, (i) all reports, financial statements and other materials required to be furnished to the Trustee and Holders will be deemed to have been provided to the Trustee and the Holders in satisfaction of the requirements above if the Issuer, or any parent or successor thereto has filed all documents required to be filed pursuant to National Investment 51-102 — Continuous Disclosure Obligations on SEDAR or any successor system thereto; provided, that the Trustee shall have not be required to monitor whether such documents are so posted and shall not be required to retrieve such documents, and (ii) if the Issuer holds a quarterly conference call for its equity holders within fifteen Business Days of filing a financial report on SEDAR or any successor system thereto, the Issuer will no liability or responsibility longer be required to hold a separate conference call in respect of such financial report for the filing, timeliness or content Holders as described in the fifth paragraph of any such reportthis Section 1009.
Appears in 1 contract
Sources: Indenture (Telesat Holdings Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company Issuer shall provide to the Holders the following reportsfurnish:
(1) within 90 120 days after of the end of each fiscal year (beginning with the year, annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 60 days after of the end of each of the first three fiscal quarters of every fiscal year, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, in each fiscal year (beginning with the fiscal quarter ending June 30case, 2018), quarterly reports including “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosures with respect to the most recent fiscal quarter periods presented and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants (all of the foregoing financial information to be prepared (i) on a basis substantially consistent with and year-to-date period subject to exceptions substantially consistent with, the corresponding financial information included in the Offering Memorandum or (ii) on a basis substantially consistent with the then applicable SEC requirements); and
(ii) promptly from time to time after the occurrence of an event required to be therein reported, such other reports (in each case, without exhibits) containing substantially all the same information that would have been required to be contained in a quarterly report Current Report on Form 108-Q K under the Exchange Act if the Company had been under Item 1.01 (Entry into a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering MemorandumMaterial Definitive Agreement), including 1.02 (Termination of a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 Material Definitive Agreement), 1.03 (Bankruptcy or any successor provisionReceivership); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.02 (Results of Operations and Financial Condition), 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant), 2.04 (Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.05 (Costs Associated with Exit or Disposal Activities), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ), 5.01 (Changes in Control of Registrant), 5.02(a)(1)(i)-(ii), (b) in a current report on Form 8-K under and (c)(1) (Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers) and Item 9.01 (Financial Statements and Exhibits), but limited only to the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the financial statements of business acquisitions and pro forma financial information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Actreported pursuant to Item 2.01; provided that, for the avoidance that any historical information of doubt, in each of the reports delivered an acquired business provided pursuant to this clause (1b) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended need not be audited if such audits are not reasonably available on the closing date of the last balance sheet set forth related transaction; provided further, however, that no report in this clause (b) shall be required to be furnished if the Issuer determines in its good faith judgment that such reportevent is not material to the Holders or the business, presented in a manner similar to that found in assets, operations, financial position or prospects of the Offering Memorandum, Issuer and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateRestricted Subsidiaries; provided, further, however, that, so long as the Company is not subject to the reporting requirements in each case of Section 13 or 15(dclauses (i) of the Exchange Actand (ii) above, (x) in no event shall such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote statements for Guarantors and Non-Guarantor or Subsidiaries contemplated by Rule 3-10 the shares of which are pledged to secure the Notes or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not any Guarantee that would be required to comply with under (a) Section 3-09 of Regulation S-X (or any similar IFRS provision) to the extent that the Company Issuer determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company Issuer and its Restricted Subsidiaries Subsidiaries, (and with respect to b) Section 3-10 of Regulation S-X (or any financial statements required to be delivered under this clause similar IFRS provision) or (d), notwithstanding c) Section 3-16 of Regulation S-X (or any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementsimilar IFRS provision) and (ey) in no event shall not such reports be required to comply with Section 3-05 of Regulation S-X to G under the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(wExchange Act or Item 10(e) of Regulation S-X K (or any similar IFRS provision) promulgated by the SEC with respect to any non-GAAP (or any non-IFRS) financial measures contained therein. Delivery of such reports and other information to the Trustee shall be for informational purposes only and receipt thereof shall not constitute constructive notice of any kind. The availability of the foregoing materials on either the SEC’s ▇▇▇▇▇ database service or on the Issuer’s website shall be deemed to satisfy the Issuer’s delivery obligation to deliver such reports, it being understood that the Trustee shall have no obligation whatsoever to determine if such materials have been posted. The Issuer shall (1) distribute such reports and information electronically to the Trustee and (2) make available such reports and information to any Holder, any bona fide prospective purchaser of the Notes (a “Prospective Purchaser”), any bona fide security analyst or any bona fide market maker by posting such reports and information on Intralinks or any comparable password protected online data system or on a public website; provided that the Issuer shall only be required to make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker; provided further that such Holders, Prospective Purchasers, security analysts and market makers shall agree to (i) treat all such reports (and the information 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) and information.
(b) So long as any Notes are outstanding, the Issuer shall also:
(i) as promptly as reasonably practicable after furnishing to the Trustee the annual and quarterly reports required by clauses (i) and (ii) of Section 4.03(a), hold a conference call to discuss such reports and the Company determines in its good faith judgment that such information would not be material results of operations for the relevant reporting period; and
(ii) issue a press release to the Holders or appropriate nationally recognized wire services prior to the business, assets, operations, financial positions or prospects date of the Company and its Restricted Subsidiaries (and with respect to any financial statements conference call required to be delivered under this held in accordance with clause (ei) of this Section 4.03(b), notwithstanding any law, rule or regulation that would require that some or all announcing the time and date of such financial statements be auditedconference call and either including all information necessary to access the call or informing Holders, the Company may nonetheless deliver unaudited financial statements to satisfy Prospective Purchasers, securities analysts and market makers how they can obtain such requirement)information.
(bc) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company Issuer shall furnish to Holders and to prospective purchasers of the NotesProspective Purchasers, upon their request, the request any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(cd) Notwithstanding the foregoing, at all times the financial statements, information and other documents required to be provided as described above, may be those of (i) the Issuer or (ii) any Parent Entity that is or becomes a Guarantor rather than those of the Issuer; provided that the Company same is subject accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the reporting requirements of Section 13 or 15(d) Issuer and the Restricted Subsidiaries on a standalone basis, on the other hand; provided, further, that the Issuer shall be permitted to furnish information with respect to OpCo and its subsidiaries, rather than with respect to the Issuer and its subsidiaries, in the case of the Exchange Act, the Company shall file quarterly reports with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable respect to the Company all the reports fiscal quarters ended April 30, 2015 and information described in Section 4.06(a)July 31, but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules 2015 and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) aboveyear ended October 31, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior 2015; provided, however, that to the date such conference call is extent there are any material differences between the information with respect to be held, OpCo and its subsidiaries and the Company shall issue a press release information with respect to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers Issuer and its subsidiaries (other than as a result of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within or 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 CompanyDividend Transactions), securities analysts and market making financial institutions, which press release the Issuer shall contain the time and the date of include an explanatory note describing such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference calldifferences.
(e) If the Company Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held Subsidiaries hold in the aggregate more than 10.02.50% of Consolidated the Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet dateIssuer, then the annual and quarterly financial information required by clause (i) of Section 4.06(a4.03(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or statements, in the footnotes to the financial statements and thereto or in the an “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations,” section, of the financial condition and results of operations of the Company Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company Subsidiaries of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the CompanyIssuer.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company shall be required to provide to the Holders Trustee and Holders, without cost to the following reportsTrustee or any Holder:
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year (beginning with the fiscal year ending December 31year, 2018), an annual report reports containing substantially all the information that would have been required to be contained in an annual report a filing with the Commission on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included K, or any successor or comparable form, or required in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-Ksuccessor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018)year, quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report filing with the Commission on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that or comparable form or required in such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures)successor or comparable form; and
(3) within ten Business Days promptly from time to time after the occurrence of each an event that would have been require information about such event to be provided to the Commission on Form 8-K, or any successor or comparable form, a current report with such information; provided that unless otherwise required to be reported under provided to Holders, current reports shall only be required with respect to the following Form 8-K Items (or its successor item): Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), Item 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 Item 2.03 (Material ImpairmentsCreation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant), Item 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 4.01 (Changes in Registrant’s Certifying Accountant), Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ), Item 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act), current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports Items 5.02 (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) and (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers) and Item 9.01 (Financial Statements and Exhibits, but only with respect to financial statements and pro forma financial information relating to transactions required to be reported pursuant to Item 2.01); provided, however, that unless otherwise required to be provided to Holders, no such current report shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that furnished if the Company determines in its good faith judgment that such information would event is not be material to the Holders of Notes or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements Subsidiaries, taken as a whole; provided, however, that unless otherwise required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given provided to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.:
Appears in 1 contract
Sources: Indenture (Clearwire Corp /DE)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 20182023), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain the disclosure contemplated by Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC or a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provisions of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in or monitor any conference calls.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company Holdings shall provide to the Holders the following reportsfurnish:
(1) within 90 days after the end of each fiscal year (beginning with of Holdings ending after the Issue Date, the consolidated financial statements of Holdings for such fiscal year ending December 31and the prior fiscal year prepared in accordance with GAAP, 2018)together with a report thereon by Holdings’ independent auditors, an annual report containing and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially all the information similar to that which would have been required to be contained included in an annual report Annual Report on Form 10-K under or any successor form filed with the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements SEC by the Company’s independent registered public accounting firm; provided that such annual report shall not be Holdings assuming Holdings were required to contain information required by Items 9A (controls prepare and proceduresfile such form), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of in each fiscal year (of Holdings, beginning with the first such fiscal quarter ending June 30after the Issue Date, 2018)the condensed consolidated financial statements of Holdings for such fiscal quarter and the comparable period in the prior fiscal year prepared in accordance with GAAP, quarterly reports together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the most recent fiscal quarter and year-to-date period containing such financial statements substantially all the information similar to that which would have been required to be contained included in a quarterly report Quarterly Report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be form filed with the SEC by Holdings assuming Holdings were required to contain the information required by Part I, Item 4 of Form 10-Q (controls prepare and procedures)file such form; and
(3) within ten Business Days after information substantially similar to the occurrence of each event information that would have been be required to be reported under Items included in a Current Report on Form 8-K (or any successor form) filed with the SEC by Holdings assuming Holdings were required to prepare and file such form) pursuant to: Item 1.01 (Entry into a Material Definitive Agreement); Item 1.02 (Termination of a Material Definitive Agreement); Item 1.03 (Bankruptcy or Receivership); Item 2.01 (Completion of Acquisition or Disposition of Assets), ; Item 2.04 (Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement); Item 2.05 (Costs Associated with Exit or Disposal Activities); Item 2.06 (Material Impairments), ; Item 4.01 (Changes in Registrant’s Certifying AccountantAccountants), ; Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ); Item 5.01 (Changes in Control of Registrant); Item 5.02(b) (Departure of Directors or Certain Officers); and Item 5.02(c) Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers); in a current report on each case, or any comparable provisions of amended Form 8-K under or a successor form, within five Business Days of the Exchange Act if the Company had been due date for filing such Current Report by a reporting company under the Exchange Act, current issuer.
(b) The reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of furnished by Section 13 or 15(d) of the Exchange Act, such reports (a4.02(a) shall not be required to to: (i) comply with any of Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Item 9A of Form 10-K and Items 307 and 308 of Regulation S-K promulgated by the SEC or SEC, Item 302 of Regulation S-K, Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein), Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S3-K (relating to non-GAAP financial measures)09, (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC Section 13(p) (except summary financial information with respect to Non-Guarantor Subsidiaries including on Form SD under Rule 13p-1), Section 13(q) or Section 13(r) of the type and scope included Exchange Act, in the Offering Memorandum will be required)each case, or any successor provision thereto, or (dii) include separate financial statements of Note Guarantors.
(c) A report required by Section 4.02(a) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that deemed furnished if Holdings: (i) delivers such requirement report or other information physically or electronically to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X Trustee; and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting posts copies of such information report on a website (which may be nonpublic password protected and may be maintained by the Company Holdings or a third party) to which access will be given to Holderssecurities analysts, bona fide Holders and prospective purchasers of the Notes (which prospective purchasers will may be limited to “qualified institutional buyers” within the meaning of (as defined in Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of Holdings and who acknowledge the Company)confidentiality of the information.
(d) In addition, securities analysts to the extent not satisfied by the reports required by this covenant or otherwise made publicly-available by Holdings, Holdings shall furnish to Holders thereof and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided prospective investors in such noticeNotes, upon their request, the information, if any, required to be delivered pursuant to Rule 144A(d)(4) to obtain information on how to access such quarterly conference call(or any successor provision) of the Securities Act.
(e) If Notwithstanding the Company has designated foregoing, at all times that Holdings is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or is otherwise permitted to file periodic reports with the SEC, Holdings may satisfy all the requirements of this covenant by filing with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to Holdings all the reports and information described in Section 4.02(a) through (d).
(f) At any time that any of its Holdings’ Subsidiaries as are Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets would otherwise have been a Significant Subsidiary (as of the end of the most recent fiscal quarter for which internal latest consolidated financial statements prepared on a consolidated basis in accordance with GAAP are of Holdings made available (to the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet dateHolders), then the quarterly and annual and quarterly financial information required by Section 4.06(a) shall this covenant will include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and thereto, in the “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” or other comparable section, of the financial condition and results of operations of the Company Holdings and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company Subsidiaries of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the CompanyHoldings.
(g) Notwithstanding anything herein to the contrary, Holdings shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of 6.01(a)(3) until 90 days after the date any report hereunder is due. To the extent any information is not provided within the time periods specified in this Section 4.06 4.02 and such information is subsequently provided, the Company Holdings will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reportsWithin a reasonable period before or after providing any report required by Section 4.02(a)(1) or (a)(2), information Holdings shall hold a conference call in which securities analysts, Holders and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, prospective investors in the case Notes that certify that they are qualified institutional buyers or non-U.S. persons may participate to discuss results of operations for the Trusteerelevant period and related matters. At least three Business Days prior to any such call, Holdings shall issue a press release or post a notice on a website, which may be the password protected website used by Holdings to provide reports and other information specified in the third paragraph of this covenant, providing the date and time of any such delivery shall be for informational purposes onlycall and indicating the manner in which securities analysts, Holders, and qualified prospective investors may obtain access to 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 Company’s compliance with any of its covenants conference call.
(as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). i) The Trustee shall have no liability obligation to determine whether or responsibility for not such information, documents or reports required by this covenant have been filed with the filing, timeliness SEC or content of any such reportposted as required by this covenant or comply with the Trust Indenture Act.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days From and after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Issue Date, including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on at all times when the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer will, so long as any Notes are outstanding:
(1) deliver to the Trustee a copy of the following information and reports of the Issuer and the Restricted Subsidiaries prepared on a consolidated basis in accordance with GAAP (as in effect at such time) and containing detail substantially consistent with the corresponding information included in the Offering Memorandum: (i) within 105 days of the end of each fiscal year (commencing with the fiscal year ending February 2, 2013), annual audited financial statements for such fiscal year (along with customary comparative results for the previous fiscal year) and (ii) within 60 days of the end of each of the first three fiscal quarters of every fiscal year (commencing with the fiscal quarter ending May 4, 2013), unaudited financial statements for the interim period as of, and for the fiscal year-to-date period ending on, the end of such fiscal quarter (along with comparative results for the corresponding interim period in the prior year), in each case together with (w) the information described in Item 303 of Regulation S-K under the Securities Act (“Management’s Discussion and Analysis of Financial Condition and Results of Operations”) with respect to the periods presented, (x) a presentation of EBITDA with respect to the periods presented, derived from the relevant financial statements, (y) pro forma and historical information (containing, where applicable, detail substantially consistent with and not more expansive in scope than the financial information included in the Offering Memorandum) in respect of any significant business acquisition or combination (as determined in accordance with Rule 3-05 of the SEC’s Regulation S-X) consummated more than 75 days prior to the date such information is furnished for the time periods for which such financial information would be required (if the Issuer were subject to the reporting requirements of the Exchange Act) in a filing on a Current Report on Form 8-K with the SEC at such time and (z) with respect to the annual information only, a report on the annual financial statements by the Issuer’s independent accounting firm; provided that so long as the Issuer conducts no business operations and has no property other than cash, Cash Equivalents and Capital Stock of PETCO Animal Supplies, the Issuer may satisfy its obligations to deliver the information and reports required by this clause (a1) by delivering such information and reports for PETCO Animal Supplies and the other Restricted Subsidiaries;
(2) deliver to the Trustee, within five Business Days following the occurrence of any of the following events, a description in reasonable detail of such event: (i) any change in the executive officers or directors of the Issuer, (ii) the acceleration of any material Indebtedness of the Issuer or any Restricted Subsidiary, (iii) any issuance or sale by the Issuer of Equity Interests of the Issuer pursuant to a registered public offering, (iv) the entry into any agreement by the Issuer or any Subsidiary thereof relating to a transaction that has resulted or may result in a Change of Control, (v) any resignation or termination of the independent accountants of the Issuer or any engagement of any new independent accountants of the Issuer, (vi) any determination by the Issuer or the receipt of advice or notice by the Issuer from its independent accountants, in either case, relating to non-reliance on previously-issued financial statements, a related audit opinion or a completed interim review, (vii) the completion by the Issuer or any Restricted Subsidiary of the acquisition or disposition of a significant amount of assets, otherwise than in the ordinary course of business, in each case, to the extent such information would be required in a filing on a Current Report on Form 8-K with the SEC, it being understood and agreed that separate financial statements or pro forma financial information shall not be required under this clause 2(vii), and (viii) any event described in clause (6) or (7) of Section 6.01(a) hereof; and
(3) substantially concurrently with delivering the information and reports to the Trustee pursuant to clauses (1) and (2) above, the Issuer shall also post copies of such information on a website (which may be nonpublic) maintained by the Issuer or another Person designated by the Issuer to which access will be given to Holders and prospective investors in the Notes (which prospective investors shall be limited to QIBs or non-U.S. Persons that certify their status as such to the reasonable satisfaction of the Issuer and agree to certain confidentiality undertakings as reasonably requested by the Issuer); provided, however, that the Trustee shall have no responsibility whatsoever to determine if such posting has occurred. Notwithstanding the foregoing, (a) the Issuer may satisfy its obligations to deliver the information referred to in the preceding paragraph by filing that information for public availability with the SEC, (b) so long as the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, no certifications or attestations or management reports concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required and (c) nothing contained in this Indenture shall otherwise require the Issuer, any direct or indirect parent company of the Issuer or any Subsidiary of the Issuer to comply with Section 302 or 404 the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of the SEC’s Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) G or Item 10(e) of the SEC’s Regulation S-K (relating with respect to any non-GAAP financial measures), (c) shall not be required measures contained in the information referred to contain a separate financial footnote for Guarantors in the preceding paragraph or any provisions contained in Subtitles E and NonG of Title IX of the ▇▇▇▇-Guarantor Subsidiaries contemplated by Rule 3-10 ▇▇▇▇▇ ▇▇▇▇ Street Reform and Corporate Governance Protection Act or Rule 3-16 of Regulation S-X any rules or regulations promulgated thereunder by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information at any time when it would not otherwise be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)subject thereto.
(b) To the extent any information described in Section 4.03(a) hereof is not provided within the time periods specified therein 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; provided that such cure shall not otherwise affect the rights of the Holders under Article 6 if Holders of at least 25% in principal amount of the Notes then outstanding have declared the principal of and 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.
(c) The Issuer shall provide S&P and ▇▇▇▇▇’▇ on a periodic basis with such information as S&P or ▇▇▇▇▇’▇, as the case may be, shall reasonably require in order to maintain public ratings of the Notes. The Issuer shall provide access to the website described in Section 4.03(a)(3) hereof to securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer. In addition, to the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes are outstandingoutstanding and the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall it will furnish to Holders and to prospective purchasers of the Notesinvestors designated by Holders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause paragraph (b) and the preceding clause (ad)(4) of this Section 4.06 may be satisfied by delivering such information to Rule 144A.
(d) The Issuer shall also hold a quarterly conference call with the Trustee Holders and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide other 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 investors that are QIBs or non-U.S. persons (as defined in Regulation S under S) to discuss the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified contained in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to reports required under Section 4.06(a)(14.03(a) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer hereof not later than five ten Business Days prior following the time the Issuer furnishes such reports to the date Trustee (such conference call is call, an “Issuer Notes Call”). The Issuer will make the details relating to each Issuer Notes Call available on a website (which may be heldnonpublic) maintained by the Issuer or another Person designated by the Issuer; provided, however, that such website (or relevant sections thereof) may be password protected so long as the Company shall issue a press release Issuer provides such password to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of Trustee, the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act QIBs or non-U.S. persons (as defined in Regulation S under the Securities ActS) that certify their status as such to the reasonable satisfaction of the Company), Issuer and to securities analysts and market making financial institutionsinstitutions that are reasonably satisfactory to the Issuer; provided, which press release further, that the access details for each Issuer Notes Call shall contain the time and be posted no fewer than three Business Days prior to the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference callIssuer Notes Call.
(e) If the Company Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on would otherwise have been a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet dateSignificant Subsidiary, then the quarterly and annual and quarterly financial information required by Section 4.06(a4.03(a) hereof shall include a reasonably detailed presentation, as determined in good faith by senior management of the CompanyIssuer, either on the face of the financial statements or in the footnotes to the financial statements and in the “Managementmanagement’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company Issuer and its the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that If any direct or indirect parent company of the Company Issuer becomes a Guarantor guarantor of the Notes, the Company may Issuer shall be permitted to satisfy its obligations under this Section 4.06 4.03 with respect to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.such
Appears in 1 contract
Sources: Indenture (Petco Holdings Inc)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company Holdings shall provide to the Holders the following reports:
furnish: (1) within 90 days after the end of each fiscal year (beginning with of Holdings ending after the Issue Date, the consolidated financial statements of Holdings for such fiscal year ending December 31and the prior fiscal year prepared in accordance with GAAP, 2018)together with a report thereon by Holdings’ independent auditors, an annual report containing and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially all the information similar to that which would have been required to be contained included in an annual report Annual Report on Form 10-K under or any successor form filed with the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements SEC by the Company’s independent registered public accounting firm; provided that such annual report shall not be Holdings assuming Holdings were required to contain information required by Items 9A (controls prepare and proceduresfile such form), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
; (2) within 45 days after the end of each of the first three fiscal quarters of in each fiscal year (of Holdings, beginning with the first such fiscal quarter ending June 30after the Issue Date, 2018)the condensed consolidated financial statements of Holdings for such fiscal quarter and the comparable period in the prior fiscal year prepared in accordance with GAAP, quarterly reports together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the most recent fiscal quarter and year-to-date period containing such financial statements substantially all the information similar to that which would have been required to be contained included in a quarterly report Quarterly Report on Form 10-Q under or any successor form filed with the Exchange Act if the Company had been a reporting company under the Exchange Act SEC by Holdings assuming Holdings were required to prepare and file such form; and (but only 3) information substantially similar to the extent similar information is that would be required to be included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement Current Report on Auditing Standards No. 100 Form 8-K (or any successor provisionform) filed with the SEC by Holdings assuming Holdings were required to prepare and file such form) pursuant to: Item 1.01 (Entry into a Material Definitive Agreement); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 1.02 (Termination of Form 10-Q (controls and proceduresa Material Definitive Agreement); and
Item 1.03 (3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items Bankruptcy or Receivership); Item 2.01 (Completion of Acquisition or Disposition of Assets), ; Item 2.04 (Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement); Item 2.05 (Costs Associated with Exit or Disposal Activities); Item 2.06 (Material Impairments), ; Item 4.01 (Changes in Registrant’s Certifying AccountantAccountants), ; Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ); Item 5.01 (Changes in Control of Registrant); Item 5.02(b) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items (Departure of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange ActDirectors or Certain Officers); provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.5.02
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company shall Lux Co-Issuer will provide to the Trustee and, upon request, to the Holders a copy of all of the following reportsinformation and reports referred to below:
(1i) within 90 days after the end of each fiscal year (beginning with or such longer period as may be permitted by the fiscal year ending December 31SEC if the Lux Co-Issuer were then subject to SEC reporting requirements as a non-accelerated filer, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K including under Rule 12b-25 under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering MemorandumAct), annual audited financial statements for such fiscal year including a “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” section with respect to the periods presented and a report on the annual financial statements by the CompanyLux Co-Issuer’s independent registered public accounting firm; provided that such annual report shall not firm or the foreign analog thereof (the “Auditor”) (all of the foregoing financial information to be required to contain prepared on a basis substantially consistent with the corresponding financial information required by Items 9A (controls and proceduresincluded in the Offering Memorandum), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with or such longer period as may be permitted by the fiscal quarter ending June 30SEC if the Lux Co-Issuer were then subject to SEC reporting requirements as a non-accelerated filer, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q including under Rule 12b-25 under the Exchange Act if Act), unaudited financial statements for the Company had been interim period as of, and for the period ending on, the end of such interim period including a reporting company under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the Exchange Act (but only foregoing financial information to be prepared on a basis substantially consistent with the extent similar corresponding financial information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3iii) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a time period specified for filing current report reports on Form 8-K under by the Exchange Act SEC, current reports that would be required to be filed with the SEC on Form 8-K if the Company had been Lux Co-Issuer were required to file such reports for any of the following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of the Lux Co-Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of the Lux Co-Issuer or any Restricted Subsidiary having a principal amount in excess of $75 million, (d) a change in the Issuers’ Auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of Bermuda Holdco, (f) resignation of a director of Bermuda Holdco on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions, (j) entry into material agreements and (k) historical financial statements of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K to the extent and in the form available to the Lux Co-Issuer (as determined by the Lux Co-Issuer in good faith) if the Lux Co-Issuer were a reporting company under the Exchange Act); provided that no such current report will be required to be furnished if the Lux Co-Issuer determines in its good faith judgment that such event is not material to Holders or to the business, current reports containing substantially all assets, operations, financial position or prospects of the information Lux Co-Issuer and its Restricted Subsidiaries, taken as a whole, or if the Lux Co-Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Lux Co-Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that such non-disclosure shall be limited only to those specific provisions that would have been required by cause material competitive harm and not the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each occurrence of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateevent itself; provided, further, however, that, so long as the Company is not subject that in addition to providing such information to the reporting Trustee and upon re-quest, to Holders, the Lux Co-Issuer will, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of Section 13 or 15(dinvestment in the Notes) such information by (i) posting to the website of the Exchange ActLux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or on a non-public, password-protected website maintained by the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or a third party, in each case, within 15 days after the time the Lux Co-Issuer would be required to provide such information pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (aas determined by the Lux Co-Issuer in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the foregoing and for the avoidance of doubt, (i) the Lux Co-Issuer will not be required to comply with furnish any information, certificates or reports required by (A) Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)any non-generally accepted accounting principles financial measures contained therein, (bii) shall not be required the information and reports referred to comply with in Section 13(r3.2(a) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall will not be required to contain a the separate financial footnote for Guarantors and Non-Guarantor Subsidiaries statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required)X, (diii) the information and reports referred to in Section 3.2(a) shall not be required to comply with present compensation or beneficial ownership information, (iv) the information and reports referred to in Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e3.2(a) shall not be required to comply include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K, (v) trade secrets and other proprietary information may be excluded from any disclosures and (vi) no required report will be required to contain any “segment reporting”. If at any time the Lux Co-Issuer or any direct or indirect parent of the Lux Co-Issuer has made a good faith determination to file a registration statement with the SEC with respect to an Equity Offering of such entity’s Capital Stock, the Lux Co-Issuer will still be required to provide reports pursuant to this Section 33.2 but the content of such reports will not be required to disclose any information that, in the good faith view of the Lux Co-05 Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such Equity Offering.
(c) For so long as the Lux Co-Issuer has designated certain of Regulation S-X to its Subsidiaries as Unrestricted Subsidiaries, then the extent that quarterly and annual financial information required by Section 3.2 will include a reasonably detailed presentation (i) such requirement to furnish acquired business which need not be audited or reviewed by the Auditors, either on the face of the financial statements would be triggered only because or in the income from continuing operations before income taxes footnotes thereto, or in the “Management’s Discussion and extraordinary items Analysis of Financial Condition and Results of Operations” or other comparable section, of the acquired business exceeds 20% financial condition and results of such pre-tax income operations of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1Lux Co-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company Issuer and its Restricted Subsidiaries (separate from the financial condition and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all results of such financial statements be audited, operations of the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)Unrestricted Subsidiaries of the Lux Co-Issuer.
(bd) In addition, to the extent not satisfied by the foregoing, the Lux Co-Issuer shall agree that, for so long as any Notes are outstanding, the Company Lux Co-Issuer shall furnish to Holders and to prospective purchasers of the NotesHolders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause Act (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Actany successor provision)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(ce) Notwithstanding the foregoing, at the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Lux Co-Issuer, those of (i) any predecessor or successor of the Lux Co-Issuer or any entity meeting the requirements of clauses (ii) or (iii) of Section 3.2(e), (ii) any Wholly Owned Subsidiary of the Lux Co-Issuer that, together with its consolidated Subsidiaries, constitutes substantially all times that of the Company assets and liabilities of the Lux Co-Issuer and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent of the Lux Co-Issuer; provided that, if the financial information so furnished relates to such Qualified Reporting Subsidiary of the Lux Co-Issuer or such direct or indirect parent of the Lux Co-Issuer, the same is subject accompanied by consolidating information, which may be posted to the website of the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or on a non-public, password-protected website maintained by the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or a third party, that explains in reasonable detail the differences between the information relating to such Qualified Reporting Subsidiary or such parent entity (as the case may be), on the one hand, and the information relating to the Lux Co-Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited or reviewed by the Auditors. We expect to rely upon the second preceding sentence to provide financial statements, information and other documents with respect to a direct or indirect parent of the Lux Co-Issuer for any fiscal period ending after the Issue Date.
(f) The Lux Co-Issuer will be deemed to have satisfied the information and reporting requirements of Section 13 3.2(a) if (i) the Lux Co-Issuer or 15(d) any Qualified Reporting Subsidiary of the Exchange ActLux Co-Issuer or any direct or indirect parent of the Lux Co-Issuer has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the Company shall file avoidance of doubt, need not be filed with the SEC via ▇▇▇▇▇ to the extent it is otherwise provided to Holders pursuant to this covenant) with the SEC via the ▇▇▇▇▇ (or successor) filing system within the applicable time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without after giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated extensions permitted by the SECSEC and that are publicly available or (ii) with respect to Holders only, the Lux Co-Issuer or such Qualified Reporting Subsidiary or such parent entity has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this covenant.
(dg) In additionSo long as Notes are outstanding, no later than fifteen Business Days the Lux Co-Issuer will also:
(i) promptly after the date providing the annual and quarterly financial information reports required by Sections 3.2(a)(i) and (ii), hold a conference call to discuss such reports and the results of operations for the prior fiscal period have been filed relevant reporting period; and
(ii) announce by press release or furnished pursuant post to Section 4.06(a)(1) or 4.06(a)(2) abovethe website of the Lux Co-Issuer, the Company shall also hold live quarterly conference calls with the opportunity to ask questions U.S. Co-Issuer or any direct or indirect parent of the Company. No fewer than five Business Days Lux Co-Issuer or on a non-public, password-protected website maintained by the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or a third party, which may require a confidentiality acknowledgment (but not restrict the recipients of such information from trading securities of the Issuers or their respective affiliates), prior to the date such of the conference call is required to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined held in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Companyaccordance with Section 3.2(g)(i), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact either all information shall be provided in such notice) to obtain information on how necessary to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiariescall or informing the Holders, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis bona fide prospective investors in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, bona fide market makers in the Company may satisfy its obligations under this Section 4.06 Notes affiliated with any Initial Purchaser and bona fide securities analysts (to provide consolidated financial information the extent providing analysis of an investment in the Company by furnishing consolidated financial information relating to Notes) how they can obtain such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parentinformation, including, without limitation, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect applicable password or other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently login information; provided, however, that the Company Lux Co-Issuer will be deemed to have satisfied its obligations with respect thereto at the requirements of Section 3.2(a) if any direct or indirect parent of the Lux Co-Issuer holds a conference call to discuss such time reports and any Default that has not become an Event the results of Default with respect thereto shall be deemed to have been curedoperations for the relevant reporting period.
(h) Delivery Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this covenant may be required to provide its email address, employer name and other information reasonably requested by the Issuers and represent to the Issuers (to the Issuers’ reasonable good faith satisfaction) that:
(i) it is a Holder, a beneficial owner of the reportsNotes, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, a bona fide prospective investor in the case of Notes, a bona fide market maker in 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 Company’s compliance Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of its covenants (as to which investment in the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.Notes;
Appears in 1 contract
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, Parent shall have its annual consolidated financial statements audited by a nationally recognized firm of independent auditors and its interim consolidated financial statements reviewed by a nationally recognized firm of independent auditors in accordance with Statement on Auditing Standards No. 100 issued by the Company may American Institute of Certified Public Accountants (or any similar replacement standard). In addition, so long as any Notes are outstanding, whether or not be Parent is subject to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Company Parent shall provide furnish to the Holders the following reports:
(1x) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an all annual report containing and quarterly financial statements substantially all the information in forms that would have been be required to be contained in an annual report a filing with the SEC on Form Forms 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)and 10-Q of Parent, including plus a “Management’s discussion Discussion and analysis Analysis of Financial Condition and Results of Operations” (“MD&A”) with respect to the Issuer and (y) with respect to the annual financial condition and results of operations” section and statements only, a report on the annual financial statements by the CompanyParent’s or the Issuer’s independent registered public accounting firm; provided provided, however, that such annual report either (1) the financial statements of the Parent shall not be required to contain information required by Items 9A (controls include the condensed combined balance sheets, statements of operations and procedures)statements of cash flow of the Issuer and the Subsidiary Guarantors presented in accordance with Rule 3-10 of Regulation S-X as in effect on the Issue Date, 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
or (2) within 45 days after the Issuer shall furnish to each Holder of Notes, the combined balance sheet and related statements of operations, stockholder’s equity and cash flows of the Issuer and its Subsidiaries (excluding Unrestricted Subsidiaries) for each annual and quarterly financial period, including (i) as of the end of and for each fiscal year of the Issuer, setting forth in comparative form the figures for the previous fiscal year and (ii) as of the end of and for each of the first three fiscal quarters of each fiscal year (beginning with of the Issuer and then elapsed portion of such fiscal quarter ending June 30year, 2018), quarterly reports with respect to setting forth in comparative form the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, figures for the avoidance of doubt, in each corresponding period or periods of the reports delivered pursuant to clause (1) or (2) aboveprevious fiscal year, all certified by a financial officer of the Company shall set forth Issuer as permitted by GAAP; provided, however, that (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, no event shall such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule Rules 3-10 09 or Rule 3-16 of Regulation S-X promulgated by the SEC from time to time and (except summary financial information 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 Nonany non-Guarantor Subsidiaries of GAAP financial measures contained therein; and provided further that the type and scope included in the Offering Memorandum will be required), (d) Issuer shall not be required to comply with Section 3-09 furnish to the Holders a separate MD&A of Regulation S-X the Issuer and the Guarantors if and to the extent that the Company determines MD&A of any Parent Entity (including Parent) includes a discussion of the Issuer (in its the form of segment reporting or otherwise), which includes financial information not materially different (in the good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect Issuer) than the financial information required pursuant to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementx) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries above for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)relevant period.
(b) In additionAll such annual reports (commencing with the fiscal year ending December 31, 2020) shall be furnished within 120 days after the end of the fiscal year to which they relate, and all such quarterly reports (commencing with the fiscal quarter ending March 31, 2021) shall be furnished within 60 days after the end of the fiscal quarter to which they relate.
(c) Parent or the Issuer shall make available such information and such reports to the Trustee under this Indenture, to any Holder of the Notes and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, or on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information readily available to any Holder of the Notes, any bona fide 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 Parent or the Issuer shall post such information thereon and make readily available any password or other login information to any such Holder of the Notes, bona fide prospective investor, securities analyst or market maker; provided, further, that Parent or the Issuer, as applicable, may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, bona fide prospective investor, security analyst or market maker that is a competitor of Parent or the Issuer, as applicable and its Subsidiaries to the extent that Parent or 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.
(d) To the extent not satisfied by the foregoing, for so long Parent or the Issuer, as any Notes are outstandingthe case may be, the Company shall furnish to Holders and to prospective purchasers investors of the Notes, 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. The requirements .
(e) Any Parent Entity may satisfy the obligations of Parent and the Issuer set forth in this clause Section 4.03 by providing the requisite financial and other information of such Parent Entity instead of Parent or the Issuer; provided that to the extent such Parent Entity holds assets (bother than its direct or indirect interest in Parent and its Restricted Subsidiaries or the Issuer and its Restricted Subsidiaries, as applicable) that exceeds the lesser of (i) 1.0% of the Total Assets of such Parent Entity and its Restricted Subsidiaries and (ii) 1.0% of the total revenue for the preceding clause (a) fiscal year of this Section 4.06 may be satisfied by delivering such Parent Entity and its Restricted Subsidiaries, then such information related to the Trustee and posting copies of such information on a website (Parent Entity shall be accompanied by consolidating information, which may be nonpublic unaudited, that explains in reasonable detail the differences between the information of such Parent Entity, on the one hand, and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such information relating to the reasonable satisfaction of Issuer and its Subsidiaries on a stand-alone basis, on the Company and who agree to treat such information as confidentialother hand.
(cf) Notwithstanding Parent or the foregoing, at all times that Issuer shall be deemed to have furnished the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Actfinancial statements, the Company shall file with MD&A and such reports on the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable annual financial statements referred to the Company all the reports and information described in Section 4.06(a4.03(a) if Parent, the Issuer or any Parent Entity of Parent or the Issuer, as applicable, has filed reports containing such information (or any such information of a Parent Entity in accordance with Section 4.03(e), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects ) with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, 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 CompanyIssuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company shall Issuer will provide to the Holders Trustee and, upon request, to beneficial owners of the following reportsNotes, a copy of all of the information and reports referred to below:
(1i) within 90 days after the end of each fiscal year (beginning with 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), annual audited financial statements of the Reporting Entity for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” section with respect to the periods presented and a report on the annual financial statements by the CompanyReporting Entity’s independent registered public accounting firm; provided that such annual report shall not firm (all of the foregoing financial information to be required to contain prepared on a basis substantially consistent with the corresponding financial information required by Items 9A (controls and proceduresincluded in the Offering Memorandum), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning 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 fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the corresponding financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3iii) within ten Business Days 15 days after the occurrence time period specified for filing current reports on Form 8-K by the SEC, current reports containing substantially all of each event the information that would have been be required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) filed in a current report Current Report on Form 8-K under the Exchange Act if on the Company had been a reporting company under 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 Exchange Act, current reports containing substantially all extent relating to any of the information that would have been required by the foregoing items foregoing) of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company Issuer had been a reporting company companies under the Exchange Act; provided that: provided, for however, that no such current report will be required to be furnished if the avoidance of doubtIssuer determines in its good faith judgment that such event is not material to holders or the business, in each assets, operations, financial position or prospects of the reports delivered Issuer and its Restricted Subsidiaries, taken as a whole. In addition to providing such information to the Trustee, the Issuer shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the Notes and securities analysts the information required to be provided pursuant to clause clauses (1i), (ii) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(diii) of this Section 4.02(a), by posting such information to its website or on IntraLinks or any comparable password-protected online data system or website.
(b) Notwithstanding the Exchange Actforegoing, such reports (a) shall the Issuer will not be required to comply with furnish any information, certificates or reports that would otherwise be required by (i) Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K, or (ii) Item 10(e) of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)any non-generally accepted accounting principles financial measures contained therein, (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall such reports will not be required to contain a the separate financial footnote information for Guarantors and Non-Guarantor or Subsidiaries whose securities are pledged to secure the Notes contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC X, and (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (dc) such reports shall not be required to comply with Section 3-09 of Regulation S-X 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 extent that Trustee and the Company determines in its good faith judgment that holders if the Issuer or any other Reporting Entity has filed such information would not with the SEC via the ▇▇▇▇▇ (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 material to provided by this Section 4.02 will include a reasonably detailed presentation, either on the Holders or the business, assets, operations, financial positions or prospects face of the Company financial statements or in the footnotes thereto, 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 with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all results of such financial statements be audited, operations of the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and Unrestricted Subsidiaries of the Issuer.
(e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to To the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes are outstanding, the Company shall it will furnish to Holders holders and to securities analysts and prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause Act (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Actany successor provision)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In The financial statements, information and other documents required to be provided as described above, may be those of (i) the event that Issuer, (ii) Taminco or (iii) any direct or indirect parent company of the Company becomes Issuer (any such entity, a Guarantor “Reporting Entity”), so long as in the case of (ii) and (iii), Taminco or such direct or indirect parent of the NotesIssuer shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of the Issuer; provided that, if the financial information so furnished relates to Taminco or such direct or indirect parent of the Issuer, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information same is accompanied by a reasonably detailed description of the Company by furnishing consolidated financial quantitative differences between the information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for Taminco or to such parent, on the Companyone hand, the Guarantors and the Non-Guarantor information relating to the Issuer and its Restricted Subsidiaries in on a standalone basis, on the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Companyhand.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the such reports, information and documents in accordance with to the Trustee pursuant to this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be 4.02 is for informational purposes only, and the Trustee’s receipt of such reports, information and documents thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the CompanyIssuer’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificatecertificates). The .
(h) So long as Notes are outstanding, the Issuer will also:
(i) as promptly as reasonably practicable after furnishing to the Trustee shall have no liability or responsibility the annual and quarterly reports required by clauses (a)(i) and (a)(ii) of this Section 4.02, hold a conference call to discuss such reports and the results of operations for the filingrelevant reporting period; and
(ii) post to its website or on IntraLinks or any comparable password-protected online data system, timeliness which will require a confidentiality acknowledgment (but not restrict the recipients of such information in trading of securities of the Issuer or content 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 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 reportinformation, including, without limitation, the applicable password or other login information.
(i) Any person who seeks to participate in any conference calls or requests or accesses the financial statements, information and other documents, in each case, required by this Section 4.02, will be required to represent to the Issuer (to the Issuer’s reasonable good faith satisfaction) that:
(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 or the Notes; and
(ii) it is not 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 revenues from operation of a Similar Business.
Appears in 1 contract
Sources: Indenture (TAMINCO ACQUISITION Corp)
Reports and Other Information. Deliver to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (a) Notwithstanding that the Company may not be subject to the reporting requirements limitations on distribution of any such information to Public Lenders as described in Section 13 or 15(d6.02) each of the Exchange Act, the Company shall provide to the Holders the following reportsfollowing:
(1) subject to the immediately succeeding proviso, within 90 days after the end of each fiscal year (beginning with of the fiscal year ending December 31Borrower, 2018), an all annual report containing financial statements of the Borrower substantially all in the information form that would have been be required to be contained in an annual report a filing with the SEC on Form 10-K, in accordance with the requirements of such Form 10-K under as of the Exchange Act Effective Date, if the Company had been a reporting company under the Exchange Act (but only Borrower were required to the extent similar information is included in the Offering Memorandum)file such form, including a “Management’s discussion and analysis of financial condition and results of operations” section and together with a report on the annual financial statements thereon by the CompanyBorrower’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls , and procedures), 10 (directors, executive officers a “Management’s Discussion and corporate governance) Analysis of Financial Condition and 11 (executive compensation) Results of Form 10-KOperations;”
(2) within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year (beginning of the Borrower commencing with the fiscal quarter ending June 30, 2018)2017, all quarterly reports with respect to financial statements of the most recent fiscal quarter and year-to-date period containing Borrower substantially all in the information form that would have been be required to be contained in a quarterly report filing with the SEC on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is was included in the Offering Memorandum), including in accordance with the requirements of such Form 10-Q as of the Closing Date (solely with respect to the first three fiscal quarters of each fiscal year), if the Borrower were required to file such form, and a “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations;” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days promptly from time to time after the occurrence of each an event that would have been required to be reported 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, in accordance with the requirements of such Form 8-K as of the Closing Date, under Items Items: 1.03 (Bankruptcy or Receivership); 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 ; 2.04 (Material ImpairmentsTriggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 4.01 (Changes in Registrant’s Certifying Accountant), ; 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ); 5.01 (Changes in Control of Registrant); 5.02
(a) (1) (Resignation of Director due to Disagreement with Registrant); 5.02(c)(1) (Name and Position of Newly Appointed Officer and Date of Appointment); and 5.03(b) (Changes in a current report on Form 8-K under the Exchange Act Fiscal Year), if the Company had been a reporting company Borrower were required to file such reports; provided, however, that
(A) no such reports referenced under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) aboveabove will be required to include as an exhibit or summary of terms of, any employment or compensatory arrangement agreement, plan or understanding between the Company shall set forth Borrower (ior any of its Subsidiaries) a calculation of Adjusted EBITDAand any director, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA manager or executive officer, of the Company and Borrower (or any of its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth Subsidiaries);
(B) in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, no event will such reports (a) shall not be required to comply with Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC or SEC;
(C) in no event will such reports be required to comply with Item 601 302 of Regulation S-K promulgated by the SEC;
(with respect to exhibits), (bD) shall not in no event will such reports be required to comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Borrower, the Guarantors or other Subsidiaries the shares of which may be pledged to secure the Loans or any Guarantee that would be required under (i) Section 13(r3-09 of Regulation S-X or (ii) Section 3-16 of Regulation S-X, respectively, promulgated by the Exchange Act SEC;
(relating E) in no event will such reports be required to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 comply with Regulation G under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating promulgated by the SEC with respect to any non-GAAP financial measures), measures contained therein;
(cF) shall not no such reports referenced under clause (1) or (2) above will be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by be furnished if the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company Borrower determines in its good faith judgment that such information would event is not be material to the Holders Lenders or the business, assets, operations, operations or financial positions or prospects position of the Company Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole;
(and G) in no event will such reports be required to comply with Item 601 of Regulation S-K promulgated by the SEC (with respect to exhibits) or, with respect to reports referenced in clause (2) above, 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 agreements evidencing material Indebtedness (excluding any schedules thereto);
(H) in no event will reports delivered prior to the completion of the first fiscal year following the Closing Date be required to comply with Regulation S-X of the SEC, give pro forma effect to the Transactions, 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;
(I) in no event will comparisons to the financial statements of the corresponding period of the prior year be required until the delivery of financial statements for a period ending in 2018 unless such comparative data is provided to lenders under the Senior Credit Facilities;
(J) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Borrower may be excluded from any disclosures; and
(K) such information will not be required to contain any “segment reporting.” Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing the Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to the preceding clause to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent.
(4) In addition, notwithstanding the foregoing, the financial statements, information, auditors’ reports and other documents and information required to be provided pursuant to this Section 6.01 may be, rather than those of the Borrower, those of (a) any predecessor or successor of the Borrower, (b) any Wholly-Owned Restricted Subsidiary of the Borrower that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Borrower and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (c) any direct or indirect parent of the Borrower; provided that, if the financial information required to be provided pursuant to clauses (1) and (2) above relates to such Qualified Reporting Subsidiary of the Borrower, such financial information will be accompanied by consolidating information (which need not be audited), which may be posted to the website of the Borrower or on Intralinks, SyndTrak, ClearPar or any comparable password protected online data system, that explains in reasonable detail (in the good faith judgment of the Borrower) the differences between the information relating to such Qualified Reporting Subsidiary, on the one hand, and the information relating to the Borrower and its Subsidiaries on a stand-alone basis, on the other hand.
(5) Any financial statements required to be delivered under this clause (d), notwithstanding any law, rule pursuant to Sections 6.01(1) or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e6.01(2) shall not be required to comply with Section 3-05 of Regulation S-X contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent that (i) it is not practicable to include any such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth adjustments in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)statements.
(b6) In addition, Notwithstanding anything herein to the extent not satisfied by the foregoing, for so long as any Notes are outstandingcontrary, the Company shall furnish Borrower will not be deemed to Holders and have failed to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file comply with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information for purposes of Section 6.01(3) hereof until 180 days after the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent date any report is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Companydue under this Section 4.03.
(g7) To the extent any information is not provided within the time periods specified in this Section 4.06 4.03 and such information is subsequently provided, the Company Borrower will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall will be deemed to have been cured.
(h) Delivery 8) The Borrower shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in quarterly conference calls after the delivery of the reports, information and documents referred to in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case (which may be a single conference call together with investors and lenders holding other securities or Indebtedness of the Trustee, such delivery shall be for informational purposes only, Borrower and/or its Restricted Subsidiaries) to discuss operating results 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate)related matters. The Trustee Borrower shall have no liability or responsibility for issue a press release which will provide the filing, timeliness or content date and time of any such reportcall and will direct Lenders to contact the investor relations office of the Borrower to obtain access to the conference call.
Appears in 1 contract
Sources: Bridge Credit Agreement (Superior Industries International Inc)
Reports and Other Information. (a) Notwithstanding For so long as any Notes are outstanding, Parent will provide to the Trustee the following reports: #94579868v11
(i) within 120 days after the end of each fiscal year of Parent, annual reports containing, to the extent applicable, the following information: (a) audited consolidated balance sheets of Parent or its predecessor as of the end of the most recent fiscal year and audited consolidated income statements and statements of cash flow of Parent or its predecessor for the most recent fiscal year, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (b) unaudited pro forma income statement information and balance sheet information of Parent (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to the extent not reasonably available), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the Company beginning of the most recently completed fiscal year; (c) an operating and financial review of the audited financial statements, including a discussion of the results of operations, financial condition, and liquidity and capital resources of Parent, and a discussion of material commitments and contingencies and critical accounting policies, with a similar scope and level of detail to that included in the Offering Memorandum; (d) description of the business, management and shareholders of Parent, all material affiliate transactions and a description of all material contractual arrangements, including material debt instruments; and (e) a summary description of material risk factors and material recent developments;
(ii) within 90 days following the end of the fiscal half-year period in each fiscal year of Parent, the half-year report of Parent containing the following information: (a) an unaudited condensed consolidated balance sheet as of the end of such half-year period and unaudited condensed statements of income and cash flow for the most recent half year to date period ending on the unaudited condensed balance sheet date, and the comparable prior year period, together with condensed footnote disclosure; (b) unaudited pro forma income statement information and balance sheet information of Parent (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to the extent not reasonably available), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the relevant half-year; (c) an operating and financial review of the unaudited financial statements, including a discussion of the results of operations, financial condition and material changes in liquidity and capital resources of Parent, and a discussion of material changes not in the ordinary course of business in commitments and contingencies since the most recent report; and (d) material recent developments; and
(iii) within 60 days following the end of the first and third fiscal quarters of each fiscal year of Parent, beginning with the quarter ending September 30, 2021, a trading statement containing (i) revenue, operating profit/loss, adjusted EBITDA, net debt, cash and cash equivalents and capital expenditures for the current period; and (ii) a discussion of any material recent developments. #94579868v11
(b) All financial statement and pro forma financial information shall, at the election of Parent, be prepared in accordance with IFRS or U.S. GAAP. At Parent’s election, it may comply with the provisions of this covenant by furnishing the applicable financial statements and/or other financial information of an indirect or direct parent company of Parent (an “Alternative Reporting Entity”), in each case, in lieu of those for Parent and as if references to “Parent” in this covenant were to such Alternative Reporting Entity, provided, that if such Alternative Reporting Entity does not guarantee the notes then the same is accompanied by selected financial metrics that show the differences (in Parent’s sole discretion) between the information relating to such Alternative Reporting Entity, on the one hand, and the information relating to Parent and its Restricted Subsidiaries on a stand-alone basis, on the other hand. The requirements of this covenant shall be subject considered to have been fulfilled if Paysafe Ltd. complies with the reporting requirements of the principal stock exchange on which its common shares are then listed.
(c) Parent will be deemed to have furnished the reports referred to in clauses Section 4.02(a)(i), (ii) and (iii) of the first paragraph of this Section 4.02(a) if Parent or any parent entity of Parent has filed reports containing substantially such information (or any such information of a parent entity pursuant to the preceding paragraph) with the SEC. Parent expects to rely on this paragraph to utilize the reports of Paysafe Ltd. to satisfy the requirements of this covenant.
(d) At any time that any of Parent’s Subsidiaries are Unrestricted Subsidiaries and any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, constitutes a Significant Subsidiary of Parent, then the annual and semi-annual financial information required by Section 4.02(a)(i) and (ii) shall include a presentation of selected financial metrics (in Parent’s sole discretion) of such Unrestricted Subsidiaries as a group.
(e) If Parent or any parent entity does not file reports with the SEC, then Parent will 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 will require a confidentiality acknowledgment, and will 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 Parent 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 Parent may deny access to any information or reports otherwise to be provided pursuant to this covenant to any such Holder, beneficial owner, bona fide prospective investor, securities analyst or market maker that is a competitor or to the extent that Parent determines in its sole discretion that the provision of such information to such Person may be harmful to Parent and its Subsidiaries; provided, further, that such 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 purpose other than their #94579868v11 investment or potential investment in the notes and (C) not publicly disclose any such reports (and the information contained therein). In addition, so long as the Notes remain outstanding and during any period during which Parent is not subject to Section 13 or 15(d) of the Exchange ActAct nor exempt therefrom pursuant to Rule 12g3-2(b), the Company Parent shall provide furnish to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31and, 2018)upon their request, an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In Notwithstanding anything herein to the event that contrary, Parent shall not be deemed to have failed to comply with any direct or indirect parent company of its obligations hereunder for purposes of clause (iii) under Section 6.01 until 180 days after the receipt of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Companywritten notice delivered thereunder.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 Section 4.02 and such information is subsequently provided, the Company will Parent shall be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery Trustee 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 Parent’s and the Company’s Issuers’ compliance with any of its the covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Indenture (Paysafe LTD)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for For so long as any Notes are outstanding, the Company Issuer will provide to the Trustee the following reports:
(i) within 120 days after the end of the Issuer’s fiscal year, an annual report of the Issuer containing, to the extent applicable, the following information: (a) audited consolidated balance sheets of the Issuer or its predecessor as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of the Issuer or its predecessor for the two most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (b) unaudited pro forma income statement information and balance sheet information of the Issuer (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to the extent not reasonably available), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the most recently completed fiscal year (unless such pro forma information has been provided in a previous report pursuant to Section 4.03(a)(ii) or Section 4.03(a)(iii)); (c) an operating and financial review of the audited financial statements, including a discussion of the results of operations, financial condition, and liquidity and capital resources of the Issuer, and a discussion of material commitments and contingencies and critical accounting policies, together with pro rata financial information presented in a manner consistent with that disclosed in the Offering Memorandum; (d) a description of the business, management and shareholders of the Issuer, all material affiliate transactions and a description of all material debt instruments; and (e) a summary description of material risk factors and material recent developments (to the extent not previously reported pursuant to Section 4.03(a)(ii) or Section 4.03(a)(iii)); provided that the information described in clauses (d) and (e) of this Section 4.03(a)(i) may be provided in the footnotes to the financial statements;
(ii) within 75 days following the end of the first three fiscal quarters in each fiscal year of the Issuer, a quarterly report of the Issuer containing the following information: (a) an unaudited condensed consolidated balance sheet as of the end of such quarter and unaudited condensed statements of income and cash flow for the most recent year to date period ending on the unaudited condensed balance sheet date, and the comparable prior year period, together with condensed footnote disclosure; (b) unaudited pro forma income statement information and balance sheet information of the Issuer (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to the extent not reasonably available), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the relevant quarter; (c) an operating and financial review of the unaudited financial statements, including a discussion of the results of operations, financial condition, and liquidity and capital resources of the Issuer and a discussion of material changes between the current quarterly period and the corresponding period of the prior year, together with pro rata financial information presented in a manner consistent with that disclosed in the Offering Memorandum; and (d) all material recent developments (to the extent not previously reported pursuant to Section 4.03(a)(i) or Section 4.03(a)(iii)); provided that the information described in clause (d) of this Section 4.03(a)(ii) may be provided in the footnotes to the financial statements; and
(iii) promptly after the occurrence of any material acquisition, disposition or restructuring or any change in Chief Executive Officer or Chief Financial Officer at the Issuer or change in auditors of the Issuer or any other material event that the Issuer or any of its Restricted Subsidiaries announces publicly, a report containing a summary description of such event (to the extent not previously reported pursuant to Section 4.03(a)(i) or Section 4.03(a)(ii), All financial statement and pro forma financial information shall be prepared in accordance with IFRS as in effect on the date of such report or financial statement (or otherwise on the basis of IFRS as then in effect) and on a consistent basis for the periods presented; provided, however, that the reports set forth in Sections 4.03(a)(i), 4.03(a)(ii) and 4.03(a)(iii) may, in the event of a change in applicable IFRS, present earlier periods on a basis that applied to such periods. Following an Initial Public Offering of the Capital Stock of an IPO Entity and/or the listing of such Capital Stock on a recognized European or U.S. stock exchange, the requirements of Sections 4.03(a)(i), 4.03(a)(ii) and 4.03(a)(iii) shall be considered to have been fulfilled if the IPO Entity complies with the reporting requirements of such stock exchange, provided that the IPO Entity shall provide financial reporting for the first three fiscal quarters in each fiscal year and shall provide the annual, quarterly and ad hoc reports within the time periods specified above, in each case, even if not so required in accordance with the reporting requirements of such stock exchange. Except as provided for above, no report need include separate financial statements for any Subsidiaries of the Issuer.
(b) At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, constitutes a Significant subsidiary of the Issuer, then the annual and quarterly financial information required by Section 4.03(a)(i) and Section 4.03(a)(ii) shall include either (a) a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer or (b) standalone audited or unaudited financial statements, as the case may be, of such Unrestricted Subsidiary or Unrestricted Subsidiaries (as a group or otherwise), together with an unaudited reconciliation to the financial information of the Issuer and its Subsidiaries, which reconciliation shall include the following items: revenues, EBITDA (together with the percentage ownership the Issuer and its Restricted Subsidiaries have in such Unrestricted Subsidiary or group of Unrestricted Subsidiaries both before and after such Subsidiaries become Unrestricted Subsidiaries), net income, cash, total assets, total debt, shareholders equity, capital expenditures and interest expense. Additionally, at any time that any of the Issuer’s Restricted Subsidiaries are Restricted Affiliates, then the annual and quarterly financial information required by Section 4.03(a)(i) and Section 4.03(a)(ii) shall include the amount of dividends or distributions or other payments (other than Excluded Contributions) that are actually paid in cash (or to the extent converted into cash) in respect of such period by each Restricted Affiliate to the Issuer or a Restricted Subsidiary that is not a Restricted Affiliate.
(c) Substantially concurrently with the issuance to the Trustee of the reports specified in Sections 4.03(a)(i), 4.03(a)(ii) and 4.03(a)(iii), the Issuer shall also (a) use its commercially reasonable efforts (i) to post copies of such reports on such website as may be then maintained by the Issuer and its Subsidiaries or (ii) otherwise to provide substantially comparable availability of such reports (as determined by the Issuer in good faith) or (b) to the extent the Issuer determines in good faith that it cannot make such reports available in the manner described in the preceding clause (a) owing to applicable law or after the use of its commercially reasonable efforts, furnish such reports to the Holders and to and, upon request, prospective purchasers of the Notes.
(d) The Issuer shall use its commercially reasonable efforts to conduct a conference call to discuss its results of operations for the relevant reporting period within 10 Business Days after the delivery of the reports required by Section 4.03(a)(i) and 4.03(a)(ii).
(e) The Issuer will also make available copies of all reports required by Sections 4.03(a)(i), 4.03(a)(ii) and 4.03(a)(iii), if and so long as the Notes are listed on the Official List of the Exchange and the rules of the Authority so require, at the offices of the Paying Agent or, to the extent and in the manner permitted by such rules (if required), post such reports on the official website of the Exchange.
(f) In addition, so long as the Notes remain outstanding and during any period during which the Issuer is not subject to Section 13 or 15(d) of the Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b), the Issuer shall furnish to the Holders and, upon their request, prospective purchasers of the Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 4.03 and such information is subsequently provided, the Company Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with All reports provided pursuant to this Section 4.06 4.03 shall satisfy the Company’s obligation to make such delivery, but, be made in the case of 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reportEnglish language.
Appears in 1 contract
Sources: Indenture (Allwyn Entertainment AG)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 20182023), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision)prepared in accordance with GAAP; provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain the disclosure contemplated by Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC or a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required)SEC, (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Second Lien Exchangeable Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Second Lien Exchangeable Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Second Lien Exchangeable Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding The Company will be permitted to satisfy its obligations under this covenant with respect to financial information relating to the foregoingCompany (including, at all times for the avoidance of doubt, the obligation to provide a calculation of Adjusted EBITDA) by furnishing financial information relating to any Parent Entity; provided that the Company same is subject accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the reporting requirements Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of Section 13 doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(d) Notwithstanding anything to the contrary set forth above, if the Company or 15(d) any Parent Entity has furnished the Holders of Second Lien Exchangeable Notes or filed with the Exchange ActSEC the reports described in the preceding paragraphs with respect to the Company or any Parent Entity, the Company shall file be deemed to be in compliance with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any provisions of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SECthis covenant.
(de) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company or any Parent Entity shall also hold live quarterly conference calls with the opportunity to ask questions of the Company or such Parent Entity, as applicable (it being understood that such quarterly conference call may be the same conference call as that held for Company’s or, as applicable, any Parent Entity’s equity investors, debt investors or analysts). No fewer than five Business Days prior Prior to the date such conference call is to be held, the Company Company, or, as applicable, the applicable Parent Entity shall issue a press release to the appropriate U.S. wire services announcing or otherwise announce such quarterly conference call for the benefit of the Holders, beneficial owners of the Second Lien Exchangeable Notes, bona fide prospective purchasers of the Second Lien Exchangeable Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain include information on how to access such quarterly conference call.
(ef) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.010.00% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on of selected financial metrics (which metrics will be selected by the face Company in its sole discretion) of the financial statements or in the footnotes to the financial statements and such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the Trustee’s receipt of such reports, information and documents shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provisions of this Second Lien Exchangeable Notes Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in or monitor any conference calls.
Appears in 1 contract
Sources: Second Lien Exchangeable Senior Secured Pik Notes Indenture (WeWork Inc.)
Reports and Other Information. So long as any Notes are outstanding:
(a) Notwithstanding that the Company may not be subject Holdings shall furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reportsTrustee:
(1i) within 90 days after the end of each fiscal year of Holdings ending after the Issue Date (beginning with or such longer period as may be permitted by the fiscal year ending December 31SEC and any successor thereto if Holdings was then subject to such SEC reporting requirements as a non-accelerated filer, 2018including any extensions permitted under Rule 12b-25 of the Exchange Act), an annual the consolidated financial statements of Holdings for such year prepared in accordance with GAAP, together with a report containing thereon by Holdings’ independent auditors, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially all the information similar to that which would have been required to be contained included in an annual report Annual Report on Form 10-K under filed with the Exchange Act SEC by Holdings (if the Company had been a reporting company under the Exchange Act Holdings were required to prepare and file such form); it being understood that (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report x) Holdings shall not be required to contain include any consolidating financial information required by Items 9A with respect to Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings, or any separate financial statements or information for Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings and (controls and procedures)y) if applicable, 10 (directors, executive officers and corporate governance) and 11 (executive compensation) Holdings shall provide guarantor/non-guarantor financial data consistent with the guarantor/non-guarantor financial data presented in the “Summary—The Offering” section of Form 10-Kthe Offering Memorandum;
(2ii) within 45 days after the end of each of the first three fiscal quarters of in each fiscal year of Holdings (or such longer period as may be permitted by the SEC and any successor thereto if Holdings was then subject to such SEC reporting requirements as a non-accelerated filer, including any extensions permitted under Rule 12b-25 of the Exchange Act), beginning with the first such fiscal quarter ending June 30after the Issue Date, 2018)the condensed consolidated financial statements of Holdings for such quarter prepared in accordance with GAAP, quarterly reports together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to the most recent fiscal quarter and year-to-date period containing such financial statements substantially all the information similar to that which would have been required to be contained included in a quarterly report Quarterly Report on Form 10-Q under filed with the Exchange Act SEC by Holdings (if the Company had been a reporting company under the Exchange Act (but only Holdings were required to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion prepare and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provisionfile such form); provided it being understood that such quarterly report (x) Holdings shall not be required to contain include any consolidating financial information with respect to Holdings, the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Holdings, or any separate financial statements or information required by Part Ifor Holdings, Item 4 the Issuer, the Co-Issuer, any other Guarantor or any other Affiliate of Form 10Holdings and (y) if applicable, Holdings shall provide guarantor/non-Q (controls and procedures)guarantor financial data consistent with the guarantor/non-guarantor financial data presented in the “Summary—The Offering” section of the Offering Memorandum; and
(3iii) within ten Business Days after information substantially similar to the occurrence of each event information that would have been be required to be reported under Items included in a Current Report on Form 8-K filed with the SEC by Holdings (if Holdings were required to prepare and file such form) pursuant to Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying AccountantAccountants), Item 4.02 (Non-Non Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ), 5.01 (Changes in Control of Registrant) in or Items 5.02(b) and (c) (Departure of Directors or Certain Officers)(other than with respect to information otherwise required or contemplated by Item 402 or Regulation S-K promulgated by the SEC); Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers), of such form, within 10 days after the date of filing that would have been required for a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange ActK; provided, current reports containing substantially all the however, that no such information that would have been shall be required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, include (x) any exhibits (except for the avoidance of doubt, in each of the reports delivered pursuant to clause (1agreements evidencing material Indebtedness) or (2) above, the Company shall set forth (iy) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA summary of the Company terms of, any employment or compensatory arrangement, agreement, plan or understanding between Holdings (or any of its Subsidiaries) and any director, manager or executive officer of Holdings (or any of its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, Subsidiaries); and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company no such information referenced under this clause (iii) shall be required to be made available or furnished if Holdings determines in its good faith judgment that such event is not subject material to the reporting requirements of Section 13 or 15(d) Holders of the Exchange ActNotes or the business, such reports assets, operations or financial position of Holdings and its Restricted Subsidiaries, taken as a whole. Notwithstanding the foregoing, (aA) shall Holdings will not be required to comply with furnish any information, certificates or reports required by (i) Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Sarbanes Oxley Act of 2002 2002, or related Items 307 and or 308 of Regulation S K, (ii) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-generally accepted accounting principles financial measures contained therein, or Item 601 (iii) Rule 3-09 of Regulation S-K X (with respect to exhibitsincluding any successor provision), (bB) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall such information will not be required to contain a the separate financial footnote information for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial including any successor provision) and (C) such information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders present compensation or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) beneficial ownership information. In addition, to the extent not satisfied by the foregoing, for so long as any the Notes are outstandingremain subject to this paragraph (a) and constitute “restricted securities” under Rule 144 under the Securities Act, the Company shall Holdings will furnish to Holders thereof and to prospective purchasers of the investors in such Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) (as in effect on the Issue Date) under the Securities Act. The requirements set forth in this clause .
(b) and the preceding subject to clause (ad) of this Section 4.06 may be satisfied by delivering below, Holdings will make available such information and such reports (as well as the details regarding the conference call described below) to any Holder and, upon request, to any beneficial owner of the Notes, in each case, by posting such information and reports on its website, on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information and reports readily available to any Holder, any prospective investor in the Notes, any securities analyst (to the Trustee and posting copies extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information and reports as confidential or accesses such information and reports on Intralinks or any comparable password-protected online data system which will require a website (which may be nonpublic confidentiality acknowledgment; provided that Holdings shall post such information and may be maintained by the Company reports thereon and make readily available any password or a third party) other login information to which access will be given to Holdersany such Holder, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act))investor, securities analysts analyst or market maker; provided, further, however, that Holdings may deny access to any competitively-sensitive information and reports otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market making institutions maker that certify their status as such is a competitor of Holdings and its Subsidiaries to the reasonable satisfaction extent that Holdings determines in good faith that the provision of the Company such information and who reports to such Person would be competitively harmful to Holdings and its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein). Holdings will hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the Notes) to discuss such financial information (including a customary Q&A session) no later than 10 business days after distribution of such financial information, it being agreed, for avoidance of any doubt, that Holdings’ customary quarterly earnings’ call shall satisfy this covenant.
(c) Notwithstanding clauses (a) or (b) above, the foregoingobligations in clauses (a)(i), at all times that (a)(ii) and (a)(iii) above may be satisfied with respect to financial information of Holdings and the Company is subject Restricted Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of Holdings or (B) Holdings’ (or any direct or indirect parent thereof, as applicable) Form 10-K, 10-Q or 8-K as applicable filed with the SEC, provided that, with respect to each of clauses (A) and (B) of this paragraph, to the reporting requirements extent such information relates to a parent of Section 13 Holdings, such information is accompanied by consolidating or 15(dother information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that if there are no material differences in such information, no such consolidating or other information shall be required.
(d) Holdings will be deemed to have furnished such information referred to above (including the immediately preceding clause (c)) to the Trustee and the Holders if Holdings or any direct or indirect parent of the Exchange Act, the Company shall file Holdings has filed such information with the SEC via the ▇▇▇▇▇ (or successor) filing system and such information is publicly available.
(e) To the extent any such reports referred to in paragraph (a) above is not so filed or furnished, as applicable, within the time periods specified in the SEC’s rules above and regulations that such reports are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been subsequently filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentationfurnished, as determined in good faith by the Companyapplicable, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company Holdings will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an or Event of Default with respect thereto shall be deemed to have been cured.
(hf) Delivery of the reports, information and documents in accordance with to the Trustee under this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be 4.03 are for informational purposes only, only and the Trustee’s receipt of such reports, information and documents the foregoing shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the CompanyParent’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Indenture (GoDaddy Inc.)
Reports and Other Information. It will furnish (aor cause to be furnished) Notwithstanding that the Company may not be subject to the reporting requirements Indenture Trustee, each Managing Agent and the Administrative Agent:
(i) within fifty (50) days after the end of each quarter of each fiscal year of a Seller, a copy of unaudited consolidated financial statements of that Seller prepared on a consolidated basis consistent with the consolidated financial statements of that Seller consisting of at least a balance sheet as of the close of such quarter and a statement of earnings and source and application of funds for such quarter and for the period from the beginning of such fiscal year to the close of such quarter (provided that so long as EIS is a consolidated subsidiary of EDS for GAAP purposes, the foregoing requirement as to EIS’ consolidated financial statements will be satisfied by the provision of the consolidated financial statements of EDS to the Indenture Trustee, each Managing Agent and the Administrative Agent and so long as a Seller is required to file periodic reports pursuant to Section 13 or 15(d) of the Securities Exchange Act, the Company shall provide foregoing requirement as to that Seller’s consolidated financial statements may be satisfied by delivery of that Seller’s Quarterly Report on Form 10-Q as and when filed with the Holders the following reports:Securities and Exchange Commission containing such information);
(1ii) within 90 one hundred (100) days after the end of each fiscal year (beginning of a Seller, a copy of the annual financial statements of that Seller prepared on a consolidated basis and in conformity with GAAP applied on a basis consistent with the fiscal year ending December 31consolidated financial statements of that Seller duly audited by independent certified public accountants of recognized standing, 2018)accompanied by an opinion without significant qualification (provided that so long as EIS is a consolidated subsidiary of EDS for GAAP purposes, an annual report containing substantially all the information that would have been foregoing requirement as to EIS’ consolidated financial statements will be satisfied by the provision of the consolidated financial statements of EDS to the Indenture Trustee, each Managing Agent and the Administrative Agent and so long as a Seller is required to file periodic reports pursuant to Section 13 of the Securities and Exchange Act, the foregoing requirements as to that Seller’s annual consolidated audited financial statements and audit report may be contained in an annual report satisfied by delivery of that Seller’s Annual Report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion as and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning when filed with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter Securities and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and proceduresCommission); and
(3iii) within ten Business Days after contemporaneously with the occurrence of each event that would have been required delivery to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K the lenders under the Exchange Act if the Company had been Bank Revolver, a reporting company under the Exchange Act, current copy of all reports containing substantially all the information that would have been required prepared by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information EDS required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth Bank Revolver to show compliance with the Financial Covenants or, if the Bank Revolver is no longer in this clause (b) force and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoingeffect, at all times that the Company is subject each time at which financial statements are required to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or be furnished pursuant to Section 4.06(a)(12.6(m)(i) and Section 2.6(m)(ii), a certificate signed by the Chief Financial Officer, Treasurer or 4.06(a)(2) aboveAssistant Treasurer of EDS, which certificate shall state that, to the Company shall also hold live quarterly conference calls best of his or her knowledge, EDS has complied with the opportunity to ask questions Financial Covenants and set forth in reasonable detail the then-current calculation of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference callFinancial Covenants.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Electronic Data Systems Corp /De/)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any notes are outstanding, the Company shall provide Parent will furnish to the Holders of notes and the following reportsTrustee:
(1) within 90 120 days after the end of each of Parent’s fiscal year (years beginning with the first fiscal year ending December 31after the Issue Date, 2018)annual reports containing the following information: (a) audited consolidated balance sheets of Parent as of the end of the two most recent fiscal years and audited consolidated income statements and consolidated statements of cash flow of Parent for the two most recent fiscal years, including complete footnotes to such financial statements and the report of Parent’s independent auditors on the financial statements; (b) an annual report containing substantially all operating and financial review of the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)audited financial statements, including a “Managementdiscussion of its assets, liabilities, financial position and profit or loss; and (c) a fair review of Parent’s and its Subsidiaries’ business, any important events that have occurred since the end of the fiscal year and a description of the principal risks and uncertainties facing Parent;
(2) within 60 days following the end of the first half of each fiscal year of Parent, semi-annual reports containing the following information: (a) an unaudited condensed consolidated balance sheet as of the end of such semi-annual period and unaudited condensed statements of income and cash flow for the year-to-date periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for Parent, together with condensed footnote disclosure; and (b) an operating and financial review of the unaudited financial statements including a discussion and analysis of the consolidated financial condition and results of operations” section operations of Parent and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided an indication of important events that have occurred during such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10year-Kto-date period;
(23) within 45 days after the end of each of the first three fiscal and third quarters of each fiscal year of Parent, to the extent Parent is not required under the English law to provide financial statements, an announcement disclosing revenue, ending period cash on balance sheet, net debt and capital expenditures, accompanied by customary management commentary (beginning an “interim management statement”); and
(4) promptly after the occurrence of any material acquisition, disposition or restructuring of Parent and the Restricted Subsidiaries, taken as a whole, or any senior management changes at Parent or any Subsidiary Guarantor or change in auditors of Parent or the Issuer or any other material event, in each case, that Parent announces publicly, a report containing a description of such event. In the case of a material acquisition or disposition, Parent will also provide as part of any such report pro forma financial information giving effect to such acquisition or disposition, together with the fiscal quarter ending June 30explanatory footnotes. All financial statements shall be prepared in accordance with IFRS. Except as provided for above, 2018), quarterly reports no report need include separate financial statements for Parent or Subsidiaries of Parent or any disclosure with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in results of operations or any other financial or statistical disclosure not of a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is type included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatIn addition, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as any Notes are deemed to be “restricted securities” within the Company meaning of Rule 144 under the Securities Act, unless Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActAct or exempt pursuant to Rule 12g3-2(b) thereunder, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum Parent will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material furnish to the Holders of Notes or the business, assets, operations, financial positions or prospects Holders of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders beneficial interest therein and to prospective purchasers of the NotesNotes or beneficial interests therein designated by any such Holders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (As long as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company Parent is subject to the reporting requirements obligations of Section 13 or 15(d) a listed company under the rules of the UK Listing Authority (or any successor regulator) and the London Stock Exchange Act(“UK Listed Company Requirements”), the Company shall file with the SEC within the time periods specified (a) in the SEC’s rules case of clauses (1) and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(22) above, the Company shall also hold live quarterly conference calls posting of Parent’s annual reports and semi-annual reports on its website, together with the opportunity to ask questions dissemination of related press releases, in compliance with UK Listed Company Requirements, in the case of clause (3) above the posting of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue interim management statement on Parent’s website and dissemination of a press release through appropriate internationally recognized wire services and, in the case of clause (4) above, dissemination of a press release through appropriate internationally recognized wire services, will be deemed to fulfill the furnishing requirements of clauses (1) – (4) above and (b) Parent shall be required to provide pro forma financial information pursuant to the appropriate U.S. wire services announcing such quarterly conference call for last sentence of clause (4) only to the benefit of extent it would otherwise be required to provide pro forma financial information under the HoldersUK Listed Company Requirements, beneficial owners of the Notesincluding, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited in any event, with respect to “qualified institutional buyers” any Class 1 transaction within the meaning of Rule 144A the listing rules of the Securities Act or non-U.S. persons (UK Listing Authority. In addition, so long as defined in Regulation S under the Securities Act) that certify their status as such notes are admitted to the reasonable satisfaction Official List of the Company)Luxembourg Stock Exchange and admitted to trading on the Euro MTF Market of the Luxembourg Stock Exchange, securities analysts and market making financial institutions, which press release shall contain the time each of Parent and the date of such conference call Issuer will comply with the publication and direct the recipients thereof to contact an individual at the Company disclosure requirements (for whom contact information shall be provided in such noticeif any) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis Luxembourg Stock Exchange in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes relation to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) all such reports. In the event that any direct or indirect parent company Parent ceases to be subject to UK Listed Company Requirements by reason of the Company a transaction pursuant to which it becomes a Guarantor Subsidiary of the Notesa new holding company that itself becomes subject to UK Listed Company Requirements and is a Guarantor, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified references in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto 1009 shall be deemed to have been cured.
be references to such new holding company. Nothing contained in this Indenture shall preclude Parent from changing its fiscal-year end. In any such case, reporting obligations under clauses (h1), (2) and (3) above with respect to any abridged fiscal year immediately preceding or following such change will follow the reporting schedule set forth in, or otherwise permitted by, UK Listed Company Requirements as long as Parent is subject to such requirements, and otherwise will provide transition reporting so as to ensure no gap in reporting. Delivery of the such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery Trustee shall be for informational purposes only, 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 CompanyIssuer’s and Parent’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateOfficers’ Certificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for For so long as any Notes are outstanding, the Company shall furnish Issuer will provide to Holders and to prospective purchasers the Trustee the following reports:
(i) within 120 days after the end of the NotesCompany’s fiscal year, upon their requestan annual report of the Company containing, to the extent applicable, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause following information: (a) audited consolidated balance sheets of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets predecessor as of the end of the two most recent fiscal quarter for which internal financial years and audited consolidated income statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% and statements of consolidated total revenue cash flow of the Company and or its Restricted Subsidiaries predecessor for the period two most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (b) unaudited pro forma income statement information and balance sheet information of the Company (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to the extent not reasonably available), together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations that have occurred since the beginning of the most recent four consecutive recently completed fiscal quarters ended on year (unless such pro forma information has been provided in a previous report pursuant to Section 4.03(a)(ii) or Section 4.03(a)(iii)); (c) an operating and financial review of the balance sheet dateaudited financial statements, then including a discussion of the annual results of operations, financial condition, and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by liquidity and capital resources of the Company, either on the face and a discussion of material commitments and contingencies and critical accounting policies, together with pro rata financial information; (d) a description of the financial statements business, management and shareholders of the Company, all material affiliate transactions and a description of all material debt instruments; and (e) a summary description of material risk factors and material recent developments (to the extent not previously reported pursuant to Section 4.03(a)(ii) or Section 4.03(a)(iii)); provided that the information described in clauses (d) and (e) of this Section 4.03(a)(i) may be provided in the footnotes to the financial statements and in statements;
(ii) within 75 days following the “Management’s discussion and analysis of financial condition and results of operations” section, end of the financial condition and results first three fiscal quarters in each fiscal year of operations the Company, a quarterly report of the Company and its Restricted Subsidiaries separate from containing the financial condition and results of operations following information: (a) an unaudited condensed consolidated balance sheet as of the Unrestricted Subsidiaries.
end of such quarter and unaudited condensed statements of income and cash flow for the most recent year to date period ending on the unaudited condensed balance sheet date, and the comparable prior year period, together with condensed footnote disclosure; (fb) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial unaudited pro forma income statement information and balance sheet information of the Company by furnishing consolidated financial information relating (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to such parent; provided that (1) such financial statements are accompanied by consolidating financial information the extent not reasonably available), together with explanatory footnotes, for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownershipacquisitions, directly dispositions or indirectly, recapitalizations that have occurred since the beginning of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.relevant quarter;
Appears in 1 contract
Sources: Indenture (Allwyn Entertainment AG)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company shall Lux Co-Issuer will provide to the Trustee and, upon request, to the Holders a copy of all of the following reportsinformation and reports referred to below:
(1i) within 90 days after the end of each fiscal year (beginning with or such longer period as may be permitted by the fiscal year ending December 31SEC if the Lux Co-Issuer were then subject to SEC reporting requirements as a non-accelerated filer, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K including under Rule 12b-25 under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering MemorandumAct), annual audited financial statements for such fiscal year including a “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” section with respect to the periods presented and a report on the annual financial statements by the CompanyLux Co-Issuer’s independent registered public accounting firm; provided that such annual report shall not firm or the foreign analog thereof (the “Auditor”) (all of the foregoing financial information to be required to contain prepared on a basis substantially consistent with the corresponding financial information required by Items 9A (controls and proceduresincluded in the Offering Memorandum), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with or such longer period as may be permitted by the fiscal quarter ending June 30SEC if the Lux Co-Issuer were then subject to SEC reporting requirements as a non-accelerated filer, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q including under Rule 12b-25 under the Exchange Act if Act), unaudited financial statements for the Company had been interim period as of, and for the period ending on, the end of such interim period including a reporting company under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the Exchange Act (but only foregoing financial information to be prepared on a basis substantially consistent with the extent similar corresponding financial information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3iii) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a time period specified for filing current report reports on Form 8-K under by the Exchange Act SEC, current reports that would be required to be filed with the SEC on Form 8-K if the Company had been Lux Co-Issuer were required to file such reports for any of the following events: (a) significant acquisitions or dispositions, (b) the bankruptcy of the Lux Co-Issuer or a Significant Subsidiary, (c) the acceleration of any Indebtedness of the Lux Co-Issuer or any Restricted Subsidiary having a principal amount in excess of $75 million, (d) a change in the Issuers’ Auditor, (e) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of Bermuda Holdco, (f) resignation of a director of Bermuda Holdco on disagreeable terms, (g) change in fiscal year, (h) non-reliance on previously issued financial statements, (i) change of control transactions, (j) entry into material agreements and (k) historical financial statements of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K to the extent and in the form available to the Lux Co-Issuer (as determined by the Lux Co-Issuer in good faith) if the Lux Co-Issuer were a reporting company under the Exchange Act); provided that no such current report will be required to be furnished if the Lux Co-Issuer determines in its good faith judgment that such event is not material to Holders or to the business, current reports containing substantially all assets, operations, financial position or prospects of the information Lux Co-Issuer and its Restricted Subsidiaries, taken as a whole, or if the Lux Co-Issuer determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Lux Co-Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that such non-disclosure shall be limited only to those specific provisions that would have been required by cause material competitive harm and not the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each occurrence of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateevent itself; provided, further, however, that, so long as the Company is not subject that in addition to providing such information to the reporting Trustee and upon request, to Holders, the Lux Co-Issuer will, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of Section 13 or 15(dinvestment in the Notes) such information by (i) posting to the website of the Exchange ActLux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or on a non-public, password-protected website maintained by the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or a third party, in each case, within 15 days after the time the Lux Co-Issuer would be required to provide such information pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (aas determined by the Lux Co-Issuer in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability).
(b) Notwithstanding the foregoing and for the avoidance of doubt, (i) the Lux Co-Issuer will not be required to comply with furnish any information, certificates or reports required by (A) Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)any non-generally accepted accounting principles financial measures contained therein, (bii) shall not be required the information and reports referred to comply with in Section 13(r3.2(a) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall will not be required to contain a the separate financial footnote for Guarantors and Non-Guarantor Subsidiaries statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required)X, (diii) the information and reports referred to in Section 3.2(a) shall not be required to comply with present compensation or beneficial ownership information, (iv) the information and reports referred to in Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e3.2(a) shall not be required to comply include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K, (v) trade secrets and other proprietary information may be excluded from any disclosures and (vi) no required report will be required to contain any “segment reporting”. If at any time the Lux Co-Issuer or any direct or indirect parent of the Lux Co-Issuer has made a good faith determination to file a registration statement with the SEC with respect to an Equity Offering of such entity’s Capital Stock, the Lux Co-Issuer will still be required to provide reports pursuant to this Section 33.2 but the content of such reports will not be required to disclose any information that, in the good faith view of the Lux Co-05 Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such Equity Offering.
(c) For so long as the Lux Co-Issuer has designated certain of Regulation S-X to its Subsidiaries as Unrestricted Subsidiaries, then the extent that quarterly and annual financial information required by Section 3.2 will include a reasonably detailed presentation (i) such requirement to furnish acquired business which need not be audited or reviewed by the Auditors, either on the face of the financial statements would be triggered only because or in the income from continuing operations before income taxes footnotes thereto, or in the “Management’s Discussion and extraordinary items Analysis of Financial Condition and Results of Operations” or other comparable section, of the acquired business exceeds 20% financial condition and results of such pre-tax income operations of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1Lux Co-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company Issuer and its Restricted Subsidiaries (separate from the financial condition and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all results of such financial statements be audited, operations of the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)Unrestricted Subsidiaries of the Lux Co-Issuer.
(bd) In addition, to the extent not satisfied by the foregoing, the Lux Co-Issuer shall agree that, for so long as any Notes are outstanding, the Company Lux Co-Issuer shall furnish to Holders and to prospective purchasers of the NotesHolders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause Act (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Actany successor provision)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(ce) Notwithstanding the foregoing, at the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Lux Co-Issuer, those of (i) any predecessor or successor of the Lux Co-Issuer or any entity meeting the requirements of clauses (ii) or (iii) of Section 3.2(e), (ii) any Wholly Owned Subsidiary of the Lux Co-Issuer that, together with its consolidated Subsidiaries, constitutes substantially all times that of the Company assets and liabilities of the Lux Co-Issuer and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (iii) any direct or indirect parent of the Lux Co-Issuer; provided that, if the financial information so furnished relates to such Qualified Reporting Subsidiary of the Lux Co-Issuer or such direct or indirect parent of the Lux Co-Issuer, the same is subject accompanied by consolidating information, which may be posted to the website of the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or on a non-public, password-protected website maintained by the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or a third party, that explains in reasonable detail the differences between the information relating to such Qualified Reporting Subsidiary or such parent entity (as the case may be), on the one hand, and the information relating to the Lux Co-Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited or reviewed by the Auditors. We expect to rely upon the second preceding sentence to provide financial statements, information and other documents with respect to a direct or indirect parent of the Lux Co-Issuer for any fiscal period ending after the Issue Date.
(f) The Lux Co-Issuer will be deemed to have satisfied the information and reporting requirements of Section 13 3.2(a) if (i) the Lux Co-Issuer or 15(d) any Qualified Reporting Subsidiary of the Exchange ActLux Co-Issuer or any direct or indirect parent of the Lux Co-Issuer has filed reports or registration statements containing such information (including the information required pursuant to the first sentence of Section 3.2(e), which, for the Company shall file avoidance of doubt, need not be filed with the SEC via ▇▇▇▇▇ to the extent it is otherwise provided to Holders pursuant to this covenant) with the SEC via the ▇▇▇▇▇ (or successor) filing system within the applicable time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without after giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated extensions permitted by the SECSEC and that are publicly available or (ii) with respect to Holders only, the Lux Co-Issuer or such Qualified Reporting Subsidiary or such parent entity has made such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this covenant.
(dg) In additionSo long as Notes are outstanding, no later than fifteen Business Days the Lux Co-Issuer will also:
(i) promptly after the date providing the annual and quarterly financial information reports required by Sections 3.2(a)(i) and (ii), hold a conference call to discuss such reports and the results of operations for the prior fiscal period have been filed relevant reporting period; and
(ii) announce by press release or furnished pursuant post to Section 4.06(a)(1) or 4.06(a)(2) abovethe website of the Lux Co-Issuer, the Company shall also hold live quarterly conference calls with the opportunity to ask questions U.S. Co-Issuer or any direct or indirect parent of the Company. No fewer than five Business Days Lux Co-Issuer or on a non-public, password-protected website maintained by the Lux Co-Issuer, the U.S. Co-Issuer or any direct or indirect parent of the Lux Co-Issuer or a third party, which may require a confidentiality acknowledgment (but not restrict the recipients of such information from trading securities of the Issuers or their respective affiliates), prior to the date such of the conference call is required to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined held in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Companyaccordance with Section 3.2(g)(i), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact either all information shall be provided in such notice) to obtain information on how necessary to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiariescall or informing the Holders, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis bona fide prospective investors in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, bona fide market makers in the Company may satisfy its obligations under this Section 4.06 Notes affiliated with any Initial Purchaser and bona fide securities analysts (to provide consolidated financial information the extent providing analysis of an investment in the Company by furnishing consolidated financial information relating to Notes) how they can obtain such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parentinformation, including, without limitation, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect applicable password or other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently login information; provided, however, that the Company Lux Co-Issuer will be deemed to have satisfied its obligations with respect thereto at the requirements of Section 3.2(a) if any direct or indirect parent of the Lux Co-Issuer holds a conference call to discuss such time reports and any Default that has not become an Event the results of Default with respect thereto shall be deemed to have been curedoperations for the relevant reporting period.
(h) Any person who requests or accesses such financial information or seeks to participate in any conference calls required by this covenant may be required to provide its email address, employer name and other information reasonably requested by the Issuers and represent to the Issuers (to the Issuers’ reasonable good faith satisfaction) that:
(i) it is a Holder, a beneficial owner of the Notes, a bona fide prospective investor in the Notes, a bona fide market maker in the Notes affiliated with any Initial Purchaser or a bona fide securities analyst providing an analysis of investment in the Notes;
(ii) it will not use the information in violation of applicable securities laws or regulations;
(iii) it will keep such provided information confidential and will not communicate the information to any Person; and
(iv) it (a) will not use such information in any manner intended to compete with the business of the Lux Co-Issuer and its Subsidiaries and (b) is not a Person (which includes such Person’s Affiliates) that (i) is principally engaged in a Similar Business or (ii) derives a significant portion of its revenues from operating or owning a Similar Business.
(i) Delivery of the reports, information and documents in accordance with (including without limitation reports contemplated under this Section 4.06 shall satisfy 3.2) to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s Issuers’ compliance with any of its their covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The .
(j) Notwithstanding anything herein to the contrary, any failure to comply with this Section 3.2 shall be automatically cured if the Lux Co-Issuer or any direct or indirect parent of the Lux Co-Issuer, as the case may be, provides all required reports to the Holders with a copy to the Trustee shall have no liability or responsibility for files all required reports with the filing, timeliness or content of any such reportSEC via the ▇▇▇▇▇ filing system.
Appears in 1 contract
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 20182020), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30March 31, 20182020), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Senior Notes Indenture (WeWork Inc.)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide (to the extent not provided prior to the Restatement Effective Date pursuant to the Original Indenture) to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 20182020), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30March 31, 20182020), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provisions of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in or monitor any conference calls.
Appears in 1 contract
Sources: Senior Notes Indenture (WeWork Inc.)
Reports and Other Information. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer shall furnish:
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after of the end of each fiscal year (beginning with the year, annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after of the end of each of the first three fiscal quarters of every fiscal year, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, in each fiscal year (beginning with the fiscal quarter ending June 30case, 2018), quarterly reports including “Business,” “Legal Proceedings,” “Defaults Upon Senior Securities,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Accounting Standards” and “Related Party Transactions” disclosures with respect to the most recent fiscal quarter periods presented to the extent such disclosures would be required in a Form 20-F or 40-F for such period and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants (all of the foregoing financial information to be prepared on a basis substantially consistent with (i), and year-to-date period subject to exceptions substantially consistent with, the corresponding financial information included in the Offering Memorandum or (ii) the then applicable SEC requirements); and
(b) promptly from time to time after the occurrence of an event required to be therein reported, such other reports (in each case, without exhibits) containing substantially all the same information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Current Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act (other than Items 1.04 (Mine safety — reporting of shutdowns and patterns of violations), 3.01 (Notice of delisting or failure to satisfy a continued listing rule or standard; transfer of listing), 3.02 (Unregistered sales of equity securities), 3.03 (material modifications to rights of security holders) (other than as relates to debt securities), 5.03(a) (Amendments to Articles of Incorporation or Bylaws), 5.04 (Temporary suspension of trading under registrant’s employee benefit plans), 5.05 (Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics), 5.06 (Change in shell company status), 5.07 (Submission of matters to a vote of security holders), 5.08 (Shareholder director nominations), all items in Section 6 thereof and 8.01 (Other events)); provided, however, that no such report shall be required to be furnished if the Company had been a reporting company under Issuer determines in its good faith judgment that such event is not material to the Exchange ActHolders or the business, current assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries; provided, however, that in no event shall such reports containing substantially all the information that would have been be required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K comply with Regulation G under the Exchange Act if or Item 10(e) of Regulation S-K promulgated by the Company had been a reporting company under SEC with respect to any non-GAAP (non-IFRS) financial measures contained therein. For any quarterly or annual period during which (a) any of the Exchange Act; provided thatIssuer’s Subsidiaries are Unrestricted Subsidiaries and (b) any of the revenues, for assets and liabilities of the avoidance of doubtUnrestricted Subsidiaries, in each the aggregate, exceed 5.0% of the reports delivered pursuant to clause total revenues, Total Assets, or total liabilities, respectively, of the Issuer on a consolidated basis, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, on the face of the financial statements, in the footnotes thereto or in “Management’s Discussion and Analysis of Financial Condition and Results of the Operations” or other comparable section, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer. The Issuer will (1) or distribute such reports and information electronically to the Trustee and (2) abovemake available, or arrange with the Company Trustee for the Trustee to make available, such reports and information to any Holder, any bona fide prospective purchaser of the Notes (a “Prospective Purchaser”), any bona fide security analyst or any bona fide market maker by posting such reports and information on Intralinks or any comparable password protected online data system or on a public website; provided that the Issuer shall set forth only be required to make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker. Notwithstanding the foregoing, (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA none of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such reportreports, presented in a manner similar financial statements or other materials furnished pursuant to that found in the Offering Memorandum, clauses (a) and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(db) of the Exchange Act, such reports (a) first paragraph of this Section 1009 shall not be required to comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines Issuer will be deemed to have furnished such reports referred to above if it or any parent company that has provided a full and unconditional guarantee of the Notes has filed such reports with either the SEC via the ▇▇▇▇▇ filing system or the System for Electronic Document Analysis and Retrieval (SEDAR) in its good faith judgment that Canada or any successor systems thereto and such information would not be material reports are publicly available via the ▇▇▇▇▇ filing system or SEDAR or any successor systems thereto. So long as any Notes are outstanding, the Issuer will also: (1) as promptly as reasonably practicable after furnishing to the Holders or Trustee the business, assets, operations, financial positions or prospects annual and quarterly reports required by clause (a) of the Company first paragraph of this Section 1009 or such earlier time after the completion of such reporting period, hold a conference call to discuss the results of operations for the relevant reporting period; and its Restricted Subsidiaries (and with respect 2) issue a press release to any financial statements the appropriate nationally recognized wire services prior to the date of the conference call required to be delivered under this held in accordance with clause (e)1) of this paragraph, notwithstanding any law, rule or regulation that would require that some or all announcing the time and date of such financial statements be auditedconference call and either including all information necessary to access the call or informing Holders, the Company may nonetheless deliver unaudited financial statements to satisfy Prospective Purchasers, market makers and securities analysts how they can obtain such requirement).
(b) information. In addition, to the extent not satisfied by the foregoing, the Issuer shall, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notesinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of Act so long as 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 are not freely transferable under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date Delivery of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the CompanyIssuer’s compliance with any of its the covenants under this Indenture (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The Notwithstanding the requirements to furnish reports, financial statements and other materials pursuant to clauses (a) and (b) of the first paragraph of this Section 1009, in the event that the Issuer, or any parent or successor thereto, is a “reporting issuer” (or its equivalent) in any province of Canada, (i) all reports, financial statements and other materials required to be furnished to the Trustee and Holders will be deemed to have been provided to the Trustee and the Holders in satisfaction of the requirements above if the Issuer, or any parent or successor thereto has filed all documents required to be filed pursuant to National Investment 51-102 — Continuous Disclosure Obligations on the System for Electronic Document Analysis and Retrieval (“SEDAR”) or any successor system thereto; provided, that the Trustee shall have not be required to monitor whether such documents are so posted and shall not be required to retrieve such documents, and (ii) if the Issuer holds a quarterly conference call for its equity holders within fifteen Business Days of filing a financial report on SEDAR or any successor system thereto, the Issuer will no liability or responsibility longer be required to hold a separate conference call in respect of such financial report for the filing, timeliness or content Holders as described in the fifth paragraph of any such reportthis Section 1009.
Appears in 1 contract
Sources: Indenture (Telesat Canada)
Reports and Other Information. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer shall furnish:
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after of the end of each fiscal year (beginning with the year, annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after of the end of each of the first three fiscal quarters of every fiscal year, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, in each fiscal year (beginning with the fiscal quarter ending June 30case, 2018), quarterly reports including “Business,” “Legal Proceedings,” “Defaults Upon Senior Securities,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Accounting Standards” and “Related Party Transactions” disclosures with respect to the most recent fiscal quarter periods presented to the extent such disclosures would be required in a Form 20-F or 40-F for such period and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants (all of the foregoing financial information to be prepared on a basis substantially consistent with (i), and year-to-date period subject to exceptions substantially consistent with, the corresponding financial information included in the Offering Memorandum or (ii) the then applicable SEC requirements); and
(b) promptly from time to time after the occurrence of an event required to be therein reported, such other reports (in each case, without exhibits) containing substantially all the same information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Current Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act (other than Items 1.04 (Mine safety — reporting of shutdowns and patterns of violations), 3.01 (Notice of delisting or failure to satisfy a continued listing rule or standard; transfer of listing), 3.02 (Unregistered sales of equity securities), 3.03 (material modifications to rights of security holders) (other than as relates to debt securities), 5.03(a) (Amendments to Articles of Incorporation or Bylaws), 5.04 (Temporary suspension of trading under registrant’s employee benefit plans), 5.05 (Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics), 5.06 (Change in shell company status), 5.07 (Submission of matters to a vote of security holders), 5.08 (Shareholder director nominations), all items in Section 6 thereof and 8.01 (Other events)); provided, however, that no such report shall be required to be furnished if the Company had been a reporting company under Issuer determines in its good faith judgment that such event is not material to the Exchange ActHolders or the business, current assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries; provided, however, that in no event shall such reports containing substantially all the information that would have been be required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K comply with Regulation G under the Exchange Act if or Item 10(e) of Regulation S-K promulgated by the Company had been a reporting company under SEC with respect to any non-GAAP (non-IFRS) financial measures contained therein. For any quarterly or annual period during which (a) any of the Exchange Act; provided thatIssuer’s Subsidiaries are Unrestricted Subsidiaries and (b) any of the revenues, for assets and liabilities of the avoidance of doubtUnrestricted Subsidiaries, in each the aggregate, exceed 5% of the reports delivered pursuant to clause total revenues, Total Assets, or total liabilities, respectively, of the Issuer on a consolidated basis, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, on the face of the financial statements, in the footnotes thereto or in “Management’s Discussion and Analysis of Financial Condition and Results of the Operations” or other comparable section, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer. The Issuer will (1) or distribute such reports and information electronically to the Trustee and (2) abovemake available, or arrange with the Company Trustee for the Trustee to make available, such reports and information to any Holder, any bona fide prospective purchaser of the Notes (a “Prospective Purchaser”), any bona fide security analyst or any bona fide market maker by posting such reports and information on Intralinks or any comparable password protected online data system or on a public website; provided that the Issuer shall set forth only be required to make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker. Notwithstanding the foregoing, (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA none of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such reportreports, presented in a manner similar financial statements or other materials furnished pursuant to that found in the Offering Memorandum, clauses (a) and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(db) of the Exchange Act, such reports (a) first paragraph of this Section 1009 shall not be required to comply with Section 302 or Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines Issuer will be deemed to have furnished such reports referred to above if it or any parent company that has provided a full and unconditional guarantee of the Notes has filed such reports with either the SEC via the ▇▇▇▇▇ filing system or the System for Electronic Document Analysis and Retrieval (SEDAR) in its good faith judgment that Canada or any successor systems thereto and such information would not be material reports are publicly available via the ▇▇▇▇▇ filing system or SEDAR or any successor systems thereto. So long as any Notes are outstanding, the Issuer will also: (1) as promptly as reasonably practicable after furnishing to the Holders or Trustee the business, assets, operations, financial positions or prospects annual and quarterly reports required by clause (a) of the Company first paragraph of this Section 1009 or such earlier time after the completion of such reporting period, hold a conference call to discuss the results of operations for the relevant reporting period; and its Restricted Subsidiaries (and with respect 2) issue a press release to any financial statements the appropriate nationally recognized wire services prior to the date of the conference call required to be delivered under this held in accordance with clause (e)1) of this paragraph, notwithstanding any law, rule or regulation that would require that some or all announcing the time and date of such financial statements be auditedconference call and either including all information necessary to access the call or informing Holders, the Company may nonetheless deliver unaudited financial statements to satisfy Prospective Purchasers, market makers and securities analysts how they can obtain such requirement).
(b) information. In addition, to the extent not satisfied by the foregoing, the Issuer shall, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notesinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of Act so long as 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 are not freely transferable under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date Delivery of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the CompanyIssuer’s compliance with any of its the covenants under this Indenture (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The Notwithstanding the requirements to furnish reports, financial statements and other materials pursuant to clauses (a) and (b) of the first paragraph of this Section 1009, in the event that the Issuer, or any parent or successor thereto, is a “reporting issuer” (or its equivalent) in any province of Canada, (i) all reports, financial statements and other materials required to be furnished to the Trustee and Holders will be deemed to have been provided to the Trustee and the Holders in satisfaction of the requirements above if the Issuer, or any parent or successor thereto has filed all documents required to be filed pursuant to National Investment 51-102 — Continuous Disclosure Obligations on the System for Electronic Document Analysis and Retrieval (“SEDAR”) or any successor system thereto; provided, that the Trustee shall have not be required to monitor whether such documents are so posted and shall not be required to retrieve such documents, and (ii) if the Issuer holds a quarterly conference call for its equity holders within fifteen Business Days of filing a financial report on SEDAR or any successor system thereto, the Issuer will no liability or responsibility longer be required to hold a separate conference call in respect of such financial report for the filing, timeliness or content Holders as described in the fifth paragraph of any such reportthis Section 1009.
Appears in 1 contract
Sources: Indenture (Telesat Canada)
Reports and Other Information. (a) Notwithstanding that Whether or not the Company may not be Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall Issuer will provide to the Holders and the Trustee the following reports:
(1i) within 90 days after the end of each fiscal year (beginning with or such longer period as would be provided by the fiscal year ending December 31, 2018SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), an annual report containing substantially all containing:
(A) audited annual financial statements of the Issuer and a report thereon from the Issuer’s independent accounting firm;
(B) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section similar in scope to the information that would have been required to be contained in an annual report on under such caption by Form 10-K under the Exchange Act if the Company had been a reporting company under of the Exchange Act (but only which shall include a reasonably detailed description during the most recently completed fiscal quarter of any Permitted Investment in excess of $15.0 million made pursuant to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A clause (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation24) of Form 10-Kthe definition thereof); and
(C) until the earlier to occur of (1) a MYT Deposit Event and (2) the provision of MYT Alternate Security, a narrative discussion of the key financial metrics of the MYT Entities consistent with a customary earnings press release;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with or such longer period as would be permitted by the fiscal quarter ending June 30, 2018SEC if the Issuer were then subject to SEC reporting requirements as a non-accelerated filer), quarterly reports with respect containing:
(A) unaudited quarterly financial statements of the Issuer for the fiscal quarter most recently ended and the corresponding fiscal quarter of the prior fiscal year;
(B) a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” similar in scope to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on under such caption by Form 10-Q under of the Exchange Act if and, in the Company had been a reporting company under case of the Exchange Act (but only second and third fiscal quarters, the period from the beginning of such fiscal year to the extent similar information is included end of such fiscal quarter (which shall include a reasonably detailed description during the most recently completed fiscal quarter of any Permitted Investment in the Offering Memorandum), including a “Management’s discussion and analysis excess of financial condition and results of operations” section and unaudited quarterly financial statements reviewed $15.0 million made pursuant to Statement on Auditing Standards No. 100 clause (or any successor provision); provided that such quarterly report shall not be required to contain 24) of the information required by Part I, Item 4 of Form 10-Q (controls and proceduresdefinition thereof); and
(3C) until the earlier to occur of (1) a MYT Deposit Event and (2) the provision of MYT Alternate Security, a narrative discussion of the key financial metrics of the MYT Entities consistent with a customary earnings press release; and
(iii) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a time period specified for filing current report reports on Form 8-K under by the Exchange Act if the Company had been a reporting company under the Exchange ActSEC, all current reports containing substantially all the information that would have been be required by the foregoing items of Form 8-K to be contained in a current report filed with the SEC on Form 8-K under the Exchange Act if the Company had been Issuer were required to file such reports for any of the following events (A) significant acquisitions or dispositions by the Issuer or its Restricted Subsidiaries or the MYT Entities, (B) the bankruptcy of the Issuer or a reporting company under Significant Subsidiary or of any of the Exchange Act; provided thatMYT Entities, (C) the acceleration of any Indebtedness of the Issuer or any Restricted Subsidiary or any of the MYT Entities having a principal amount in excess of $15.0 million, (D) a change in the Issuer’s certifying independent auditor, (E) the appointment or departure of the Chief Executive Officer or Chief Financial Officer (or persons fulfilling similar duties) of the Issuer or any of the MYT Operating Entities, (F) non-reliance on previously issued financial statements of the Issuer or the MYT Entities, (G) change of control transactions with respect to the Issuer or the MYT Entities, (H) entering into, materially modifying or terminating material contracts of the Issuer or its Restricted Subsidiaries (for the avoidance of doubt, excluding officer employment arrangements) and (I) the incurrence of costs associated with exit or disposal activities by the Issuer, its Restricted Subsidiaries or the MYT Entities; and
(iv) In addition, the Issuer shall provide, in each the same manner as the reports described above, copies of all operative Indebtedness Documents (including full and complete schedules and exhibits thereto) with respect to any outstanding Indebtedness of the reports delivered pursuant Issuer and its Restricted Subsidiaries or the MYT Entities whose principal amount (or committed amount) exceeds $25.0 million. The information described in clauses (iii) and (iv) above with respect to clause the MYT Entities need not be provided after the earlier to occur of (1x) or a MYT Deposit Event and (2y) abovethe provision of MYT Alternate Security.
(b) For the avoidance of doubt, notwithstanding the Company shall set forth foregoing, (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall Issuer will not be required to comply with furnish any information, certificates or reports required by (A) Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)any non-generally accepted accounting principles financial measures contained therein, (bii) shall not be required the reports referred to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall above will not be required to contain a the separate financial footnote for Guarantors and Non-Guarantor Subsidiaries statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by and (iii) the SEC (except summary financial information with respect reports referred to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum above will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X present compensation or beneficial ownership information.
(c) At any time that the Issuer (and any applicable Parent Entity) is not subject to the extent that reporting requirements of Section 13 and 15(d) of the Company determines Exchange Act, in lieu of filing such reports with the SEC, the Issuer may make available such information electronically (including by posting to a non-public, password-protected website maintained by the Issuer or a third party) to any Holder, any bona fide prospective investor the Notes, any bona fide market maker (or person who intends to be a market maker) in the Note or any bona fide securities analyst, in each case, who provides to the Issuer its email address, employer name and other information reasonably requested by the Issuer. Any Person who requests such financial information from the Issuer or seeks to participate in any conference call required by this covenant will be required to represent to and agree with the Issuer (and by accepting such financial information, such Person will be deemed to have represented to and agreed with the Issuer) to the Issuer’s good faith judgment that satisfaction that:
(i) it is a Holder, a bona fide prospective investor in the Notes, a bona fide market maker (or intended market maker) with respect to the Notes or a bona fide securities analyst, as applicable;
(ii) if it is a prospective purchaser of the Notes, it is (A) a Qualified Institutional Buyer (as defined in Rule 144A of the Securities Act), (B) a non-U.S. Person (as defined in Regulation S under the Securities Act) or (C) an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act;
(iii) it will not use the information in violation of applicable securities laws or regulations;
(iv) it will not communicate the information to any Person and will keep the information confidential;
(v) it will use such information would not be material only in connection with evaluating an investment in the Notes (or, if it is a bona fide market maker or intended market maker, only in connection with making a market in the Notes or, if it is a bona fide securities analyst, for preparing analysis for Holders and prospective purchasers of the Notes that otherwise have access to the Holders or financial information in compliance with this covenant); and
(vi) it (A) will not use such information in any manner intended to compete with the business, assets, operations, financial positions or prospects business of the Company Issuer and (B) is not a Person (which includes such Person’s Affiliates, other than the Affiliates of a bona fide securities research analyst with whom such research analyst does not share such information) that is principally engaged in or derives a significant portion of its revenues from operating or owning a business which is substantially similar to the business engaged in by the Issuer and its Restricted Subsidiaries on the Issue Date.
(and with respect d) The Issuer shall respond, as promptly as practicable, in good faith, to any financial statements required request for access to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and website described above.
(e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to To the extent not satisfied by the foregoing, for so long as any Notes are outstandingoutstanding (unless satisfied and discharged or defeased), the Company shall Issuer will furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause Act (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Actany successor provision)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(cf) Notwithstanding the foregoing, the financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of the Issuer, those of any Parent Entity; provided that, if the financial information so furnished relates to such Parent Entity, the same is accompanied by consolidating information, which may be posted to the website of the Issuer or on a non-public, password-protected website maintained by the Issuer or a third party, which explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand.
(g) Issuer will be deemed to have satisfied the reporting requirements of Section 3.2(a) if (i) at all times any time that the Company Issuer or any Parent Entity is subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActAct or is a voluntary filer, the Company shall file Issuer or any Parent Entity has filed such reports containing such information (including the information required pursuant to Section 3.2(e), which, for the avoidance of doubt, need not be filed with the SEC within via ▇▇▇▇▇ to the extent it is otherwise provided to Holders in accordance with this Section 3.2) with the SEC via the ▇▇▇▇▇ (or successor) filing system or (ii) at any time periods specified in that the Issuer or any Parent Entity does not file such reports with the SEC via the ▇▇▇▇▇ (or a successor) filing system, the Issuer or any Parent Entity makes such reports available electronically (including by posting to a non-public, password-protected website as provided above) pursuant to this Section 3.2. Notwithstanding the foregoing, the Trustee shall have no obligation to monitor or confirm, on a continuing basis or otherwise, whether the Issuer or any Parent Entity posts such reports, information and documents on any website or the SEC’s rules and regulations that are then applicable ▇▇▇▇▇ service, or to collect any such information from the Company all the reports and information described in Section 4.06(a), but without giving effect to Issuer’s or any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by Parent Entity’s website or the SEC’s ▇▇▇▇▇ service.
(dh) In addition, no later than fifteen Business Days Promptly after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(13.2(a)(i) or 4.06(a)(2) aboveSection 3.2(a)(ii), the Company Issuer will hold a quarterly conference call to review the most recent financial results, which shall also hold live quarterly conference calls with the opportunity to ask questions include a discussion of the Companyfinancial metrics of the MYT Entities and a reasonable question and answer session open to all invited call participants. No fewer than five Business Days prior Prior to the date such conference call is to be held, the Company shall issue Issuer will post to its website or a press release to non-public, password-protected website maintained by the appropriate U.S. wire services announcing Issuer or a third party an announcement of such quarterly conference call for the benefit of the Trustee, the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company)Notes, securities analysts and market making financial institutions, which press release shall announcement will contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company Issuer (for whom contact information shall will be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that any Person who attends such conference call with the Issuer will be required to represent to and agree with the Issuer (1) and by attending such financial statements are accompanied by consolidating financial information for conference call, such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company person will be deemed to have satisfied its obligations represented and agreed with respect thereto at such time and any Default that has not become an Event the Issuer) to clauses (i) through (vi) of Default with respect thereto shall be deemed to have been curedSection 3.2(c).
(hi) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s its receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the CompanyIssuers’, any Parent Entity’s, any Subsidiary 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 conclusively rely exclusively on an Officer’s CertificateCertificate delivered pursuant to this Indenture). The Trustee shall have no liability or responsibility for the filingcontent, filing or timeliness or content of any such report, information or document delivered or filed under or in connection with this Indenture or the transactions contemplated thereunder.
Appears in 1 contract
Reports and Other Information. [[5541447]]
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall Parent Guarantor will provide to the Trustee and, upon request, to Holders of the following reportsNotes a copy of all of the information and reports referred to below:
(1i) within 90 days after the end of each fiscal year (beginning with or such longer period as may be permitted by the SEC if Parent Guarantor were then subject to SEC reporting requirements as a non-accelerated filer), annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” section with respect to the periods presented and a report on the annual financial statements by the CompanyParent Guarantor’s independent registered public accounting firm; provided that such annual report shall not firm (all of the foregoing financial information to be required to contain prepared on a basis substantially consistent with the corresponding financial information required by Items 9A (controls and proceduresincluded in the Offering Memorandum), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning or such longer period as may be permitted by the SEC if Parent Guarantor were then subject to SEC reporting requirements as a non-accelerated filer), unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (all of the foregoing financial information to be prepared on a basis substantially consistent with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the corresponding financial information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3iii) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a time period specified for filing current report reports on Form 8-K under by the Exchange Act if the Company had been a reporting company under the Exchange ActSEC, current reports containing substantially all the information that would have been be required by the foregoing items of Form 8-K to be contained in a current report filed with the SEC on Form 8-K under if Parent Guarantor were required to file such reports for any of the Exchange Act following events: (1) significant acquisitions or dispositions, (2) the bankruptcy of Parent Guarantor or a Significant Subsidiary, (3) the acceleration of any Indebtedness of Parent Guarantor or any Restricted Subsidiary having a principal amount in excess of $100.0 million, (4) a change in Parent Guarantor’s certifying independent auditor, (5) the appointment or departure of the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer or President (or persons fulfilling similar duties) of Parent Guarantor, (6) resignation of a director of Parent Guarantor on disagreeable terms, (7) change in fiscal year, (8) non-reliance on previously issued financial statements or audit reports, (9) change of control transactions, (10) entry into or termination of material agreements, (11) entry into material financial obligations and (12) historical financial statements of an acquired business (relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K) to the extent and in the form available to Parent Guarantor (as determined by Parent Guarantor in good faith) if the Company had been Parent Guarantor were a domestic reporting company under the Exchange Act; provided that, for the avoidance of doubt, that no such current report will be required to be furnished if Parent Guarantor determines in each its good faith judgment that such event is not material to Holders of the reports delivered pursuant Notes or to clause (1) the business, assets, operations, financial position or (2) aboveprospects of Parent Guarantor and its Restricted Subsidiaries, taken as a whole, or if Parent Guarantor determines in its good faith judgment that such disclosure would otherwise cause material competitive harm to the Company business, assets, operations, financial position or prospects of Parent Guarantor and its Restricted Subsidiaries, taken as a whole; provided, further, that such non-disclosure shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments be limited only to those specific provisions that would cause material competitive harm and Community Adjusted EBITDA not the occurrence of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateevent itself; provided, further, however, that, so long as the Company is not subject that in addition to providing such information to the reporting requirements of Section 13 or 15(d) Trustee and, upon request, Holders of the Exchange ActNotes, Parent Guarantor will, to the extent the requirements set forth in Section 3.2(h) are satisfied, make available to the Holders of the Notes, bona fide prospective investors in the Notes, bona fide market makers in the Notes affiliated with any Initial Purchaser and bona fide securities analysts (to the extent providing analysis of investment in the Notes) such information by (i) posting to the website of Parent Guarantor, any direct or indirect parent of Parent Guarantor or any Restricted Subsidiary or on a non-public, password-protected website maintained by Parent Guarantor, any direct or indirect parent of Parent Guarantor, any Restricted Subsidiary or a third party, in each case, within 15 days after the time Parent Guarantor would be required to provide such information pursuant to clause (i), (ii) or (iii) above, as applicable, or (ii) otherwise providing substantially comparable availability of such reports (aas determined by Parent Guarantor in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another comparable private electronic information service shall constitute substantially comparable availability). [[5541447]]
(b) Notwithstanding the foregoing, (i) Parent Guarantor will not be required to comply with furnish any information, certificates or reports required by (A) Section 302 302, Section 404 or 404 Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, or related Items 307 and or 308 of Regulation S-K or (B) Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits)any non-generally accepted accounting principles financial measures contained therein, (bii) shall not be required the information and reports referred to comply with in Section 13(r3.2(a) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall will not be required to contain a the separate financial footnote for Guarantors and Non-Guarantor Subsidiaries statements or other information contemplated by Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by X, (iii) to the SEC (except summary extent pro forma financial information with respect is required to Non-be provided by Parent Guarantor, Parent Guarantor Subsidiaries may provide only pro forma revenues, net income, income before extraordinary items and the cumulative effect of the type accounting changes, EBITDA, Adjusted EBITDA, senior secured debt, total debt and scope included capital expenditures (or equivalent financial information) in the Offering Memorandum will be required)lieu thereof, (div) the information and reports referred to in Section 3.2(a) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such present compensation or beneficial ownership information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (ev) the information and reports referred to in Section 3.2(a) shall not be required to comply include any exhibits required by Item 15 of Form 10-K, Item 6 of Form 10-Q or Item 9.01 of Form 8-K.
(c) For so long as any of Parent Guarantor’s Subsidiaries has been designated as an Unrestricted Subsidiary, then substantially concurrently with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items provision of the acquired business exceeds 20% of such pre-tax income quarterly and annual financial information required by Section 3.2(a), Parent Guarantor will provide the Holders of the Company Notes with the percentage of the Adjusted EBITDA (presented on a basis substantially consistent with the presentation of Adjusted EBITDA in the Offering Memorandum) that the Unrestricted Subsidiaries contribute to such Adjusted EBITDA for Parent Guarantor and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) period; provided, however, that no such information shall be required to be provided to the Company extent Parent Guarantor determines in its good faith reasonable judgment that any such information would Unrestricted Subsidiaries are not be material to the operations or performance of Parent Guarantor and its Subsidiaries as a whole. Such information need not be provided in the financial report itself and may be separately provided to Holders or the business, assets, operations, financial positions or prospects of the Company and its Notes via a non-public, password protected website maintained by Parent Guarantor, any direct or indirect parent of Parent Guarantor, any Restricted Subsidiaries (and Subsidiary or a third party in accordance with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementSection 3.2(g).
(bd) In addition, to the extent not satisfied by the foregoing, Parent Guarantor will agree that, for so long as any Notes are outstanding, the Company shall Parent Guarantor will furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause Act (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Actany successor provision)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(ce) Notwithstanding the foregoing, at all times that the Company financial statements, information, auditors’ reports and other documents required to be provided as described above, may be, rather than those of Parent Guarantor, those of (i) any predecessor or successor of Parent Guarantor or any entity meeting the requirements of clause (ii) of this Section 3.2(e) or (ii) any direct or indirect parent of Parent Guarantor; provided that, if the financial information so furnished relates to such direct or indirect parent of Parent Guarantor, and, in the reasonable judgment of Parent Guarantor, there are material differences between the financial information of Parent Guarantor and such direct or indirect parent of Parent Guarantor, the same is subject accompanied by consolidating information, which may be posted to the reporting requirements website of Section 13 Parent Guarantor, any direct or 15(d) indirect parent of Parent Guarantor or any Restricted Subsidiary or on a non-public, password-protected website maintained by Parent Guarantor, any direct or indirect parent of Parent Guarantor, any Restricted Subsidiary or a third party, that explains in reasonable detail the Exchange Act, material differences between the Company shall file with information relating to such parent entity (as the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(acase may be), but without giving effect to any of on the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations)one hand, in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof information relating to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company Parent Guarantor and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on a standalone basis, on the balance sheet dateother hand. For the avoidance of doubt, then the annual and quarterly financial consolidating information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or referred to in the footnotes to the financial statements and proviso in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiariespreceding sentence need not be audited or reviewed.
(f) In the event that any direct or indirect parent company of the Company becomes a Parent Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this reporting requirements of Section 4.06 shall satisfy 3.2(a) if Parent Guarantor or any direct or indirect parent of Parent Guarantor (i) has filed reports or registration statements containing such information (including, to the Company’s obligation extent required, the information required pursuant to make such deliverythe first sentence of Section 3.2(e), butwhich, in the case of 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filingavoidance of doubt, timeliness or content of any such report.need not be filed with the SEC via ▇▇▇▇▇ to the extent it is otherwise provided to Holders pursuant to this [[5541447]]
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days From and after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Issue Date, including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on at all times when the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer will, so long as any Notes are outstanding:
(1) deliver to the Trustee a copy of the following information and reports of the Issuer and the Restricted Subsidiaries prepared on a consolidated basis in accordance with GAAP (as in effect at such reports time) and containing detail substantially consistent with the corresponding information included in the Offering Memorandum: (ai) within 105 days of the end of each fiscal year (commencing with the fiscal year ending January 29, 2011), annual audited financial statements for such fiscal year (along with customary comparative results for the previous fiscal year) and (ii) within 60 days of the end of each of the first three fiscal quarters of every fiscal year (commencing with the fiscal quarter ending April 30, 2011), unaudited financial statements for the interim period as of, and for the fiscal year-to-date period ending on, the end of such fiscal quarter (along with comparative results for the corresponding interim period in the prior year), in each case together with (w) the information described in Item 303 of Regulation S-K under the Securities Act (“Management’s Discussion and Analysis of Financial Condition and Results of Operations”) with respect to the periods presented, (x) a presentation of EBITDA with respect to the periods presented, derived from the relevant financial statements, (y) pro forma and historical information (containing, where applicable, detail substantially consistent with and not more expansive in scope than the financial information included in the Offering Memorandum) in respect of any significant business acquisition or combination (as determined in accordance with Rule 3-05 of the SEC’s Regulation S-X) consummated more than 75 days prior to the date such information is furnished for the time periods for which such financial information would be required (if the Issuer were subject to the reporting requirements of the Exchange Act) in a filing on a Current Report on Form 8-K with the SEC at such time and (z) with respect to the annual information only, a report on the annual financial statements by the Issuer’s independent accounting firm;
(2) deliver to the Trustee, within five Business Days following the occurrence of any of the following events, a description in reasonable detail of such event: (i) any change in the executive officers or directors of the Issuer, (ii) the acceleration of any material Indebtedness of the Issuer or any Restricted Subsidiary, (iii) any issuance or sale by the Issuer of Equity Interests of the Issuer pursuant to a registered public offering, (iv) the entry into any agreement by the Issuer or any Subsidiary thereof relating to a transaction that has resulted or may result in a Change of Control, (v) any resignation or termination of the independent accountants of the Issuer or any engagement of any new independent accountants of the Issuer, (vi) any determination by the Issuer or the receipt of advice or notice by the Issuer from its independent accountants, in either case, relating to non-reliance on previously-issued financial statements, a related audit opinion or a completed interim review, (vii) the completion by the Issuer or any Restricted Subsidiary of the acquisition or disposition of a significant amount of assets, otherwise than in the ordinary course of business, in each case, to the extent such information would be required in a filing on a Current Report on Form 8-K with the SEC, it being understood and agreed that separate financial statements or pro forma financial information shall not be required under this clause 2(vii), and (viii) any event described in clause (6) or (7) of Section 6.01(a) hereof; and
(3) substantially concurrently with delivering the information and reports to the Trustee pursuant to clauses (1) and (2) above, the Issuer shall also post copies of such information on a website (which may be nonpublic) maintained by the Issuer or another Person designated by the Issuer to which access will be given to Holders and prospective investors in the Notes (which prospective investors shall be limited to QIBs or non-U.S. Persons that certify their status as such to the reasonable satisfaction of the Issuer and agree to certain confidentiality undertakings as reasonably requested by the Issuer). The Trustee shall not be responsible for determining whether or not any such posting has occurred. Notwithstanding the foregoing, (a) the Issuer may satisfy its obligations to deliver the information referred to in the preceding paragraph by filing that information for public availability with the SEC, (b) so long as the Issuer is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, no certifications or attestations or management reports concerning the financial statements or disclosure controls and procedures or internal controls that would otherwise be required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 shall be required and (c) nothing contained in this Indenture shall otherwise require the Issuer, any direct or indirect parent company of the Issuer or any Subsidiary of the Issuer to comply with Section 302 or 404 the terms of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of the SEC’s Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) G or Item 10(e) of the SEC’s Regulation S-K (relating with respect to any non-GAAP financial measures), (c) shall not be required measures contained in the information referred to contain a separate financial footnote for Guarantors in the preceding paragraph or any provisions contained in Subtitles E and NonG of Title IX of the ▇▇▇▇-Guarantor Subsidiaries contemplated by Rule 3-10 ▇▇▇▇▇ ▇▇▇▇ Street Reform and Corporate Governance Protection Act or Rule 3-16 of Regulation S-X any rules or regulations promulgated thereunder by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information at any time when it would not otherwise be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)subject thereto.
(b) To the extent any information described in Section 4.03(a) hereof is not provided within the time periods specified therein 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; provided that such cure shall not otherwise affect the rights of the Holders under Article 6 if Holders of at least 25% in principal amount of the Notes then outstanding have declared the principal of and 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.
(c) The Issuer shall provide S&P and ▇▇▇▇▇’▇ on a periodic basis with such information as S&P or ▇▇▇▇▇’▇, as the case may be, shall reasonably require in order to maintain public ratings of the Notes. The Issuer shall provide access to the website described in Section 4.03(a)(3) hereof to securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer. In addition, to the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes are outstandingoutstanding and the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall it will furnish to Holders and to prospective purchasers of the Notesinvestors designated by Holders, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on would otherwise have been a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet dateSignificant Subsidiary, then the quarterly and annual and quarterly financial information required by Section 4.06(a4.03(a) hereof shall include a reasonably detailed presentation, as determined in good faith by senior management of the CompanyIssuer, either on the face of the financial statements or in the footnotes to the financial statements and in the “Managementmanagement’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company Issuer and its the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(fe) In the event that If any direct or indirect parent company of the Company Issuer becomes a Guarantor guarantor of the Notes, the Company may Issuer shall be permitted to satisfy its obligations under this Section 4.06 4.03 with respect to provide consolidated financial information of relating to the Company Issuer by furnishing consolidated financial information relating to such parentparent company; provided that that, if and so long as such parent company shall have Independent Assets or Operations (1) as defined below), such financial statements are information shall be accompanied by consolidating financial information for that explains in reasonable detail the differences between the information relating to such parentparent company, on the Companyone hand, the Guarantors and the Non-Guarantor information relating to the Issuer and the Restricted Subsidiaries on a standalone basis, on the other hand. For purposes of this Section 4.03(e), “Independent Assets or Operations” means, with respect to any 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 each case amounts related to its investment in the manner prescribed by Issuer and the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownershipRestricted Subsidiaries), directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents determined in accordance with this Section 4.06 shall satisfy GAAP and as shown on the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the Trustee’s receipt most recent balance sheet of such reportsparent company, information and documents shall not constitute constructive notice is more than 3.0% of any information contained therein or determinable from information contained therein, including the Companysuch parent company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reportcorresponding consolidated amount.
Appears in 1 contract
Sources: Indenture (Petco Holdings Inc)
Reports and Other Information. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Issuer shall furnish:
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after of the end of each fiscal year (beginning with the year, annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after of the end of each of the first three fiscal quarters of every fiscal year, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, in each fiscal year (beginning with the fiscal quarter ending June 30case, 2018), quarterly reports including “Business,” “Legal Proceedings,” “Defaults Upon Senior Securities,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Accounting Standards” and “Related Party Transactions” disclosures with respect to the most recent fiscal quarter periods presented to the extent such disclosures would be required in a Form 20-F or 40-F for such period and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants (all of the foregoing financial information to be prepared on a basis substantially consistent with (i), and year-to-date period subject to exceptions substantially consistent with, the corresponding financial information included in the Offering Memorandum or (ii) the then applicable SEC requirements); and
(b) promptly from time to time after the occurrence of an event required to be therein reported, such other reports (in each case, without exhibits) containing substantially all the same information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Current Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if (other than Items 1.04 (Mine safety — reporting of shutdowns and patterns of violations), 3.01 (Notice of delisting or failure to satisfy a continued listing rule or standard; transfer of listing), 3.02 (Unregistered sales of equity securities), 3.03 (material modifications to rights of security holders) (other than as relates to debt securities), 5.03(a) (Amendments to Articles of Incorporation or Bylaws), 5.04 (Temporary suspension of trading under registrant’s employee benefit plans), 5.05 (Amendments to the Company had been Registrant’s Code of Ethics, or Waiver of a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each Provision of the reports delivered pursuant Code of Ethics), 5.06 (Change in shell company status), 5.07 (Submission of matters to clause a vote of security holders), 5.08 (1) or Shareholder director nominations), all items in Section 6 thereof and 8.01 (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateOther events)); provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, that no such reports (a) report shall not be required to comply with Section 302 or 404 of be furnished if the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company Issuer determines in its good faith judgment that such information would event is not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company Issuer and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d)Subsidiaries; provided, notwithstanding any lawhowever, rule or regulation that would require that some or all of in no event shall such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not reports be required to comply with Section 3-05 of Regulation S-X to G under the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(wExchange Act or Item 10(e) of Regulation S-X and (ii) K promulgated by the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and SEC with respect to any non-GAAP (non-IFRS) financial statements required to be delivered under this clause measures contained therein. For any quarterly or annual period during which (e), notwithstanding a) any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
Issuer’s Subsidiaries are Unrestricted Subsidiaries and (b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules revenues, assets and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions liabilities of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectivelyin the aggregate, held more than 10.0exceed 5.0% of Consolidated the total revenues, Total Assets as Assets, or total liabilities, respectively, of the end of the most recent fiscal quarter for which internal financial statements prepared Issuer on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet datebasis, then the quarterly and annual and quarterly financial information required by Section 4.06(a) shall the preceding paragraph will include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or statements, in the footnotes to the financial statements and thereto or in the “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsthe Operations” or other comparable section, of the financial condition and results of operations of the Company Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company Subsidiaries of the Company becomes a Guarantor Issuer. The Issuer will (1) distribute such reports and information electronically to the Trustee and (2) make available, or arrange with the Trustee for the Trustee to make available, such reports and information to any Holder, any bona fide prospective purchaser of the NotesNotes (a “Prospective Purchaser”), the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial any bona fide security analyst or any bona fide market maker by posting such reports and information of the Company by furnishing consolidated financial information relating to such parenton Intralinks or any comparable password protected online data system or on a public website; provided that the Issuer shall only be required to make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker. Notwithstanding the foregoing, (1i) such none of the reports, financial statements are accompanied by consolidating financial information for such parentor other materials furnished pursuant to clauses (a) and (b) of the first paragraph of this Section 1009 shall be required to comply with Section 302 or Section 404 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, the Company, the Guarantors or related Items 307 and the Non308 of Regulation S-Guarantor Subsidiaries in the manner prescribed K promulgated by the SEC and (2ii) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company Issuer will be deemed to have satisfied its obligations furnished such reports referred to above if it or any parent company that has provided a full and unconditional guarantee of the Notes has filed such reports with respect either the SEC via the E▇▇▇▇ filing system or the System for Electronic Document Analysis and Retrieval (“SEDAR”) in Canada or any successor systems thereto at and such reports are publicly available via the E▇▇▇▇ filing system or SEDAR or any successor systems thereto. So long as any Notes are outstanding, the Issuer will also: (1) as promptly as reasonably practicable after furnishing to the Trustee the annual and quarterly reports required by clause (a) of the first paragraph of this Section 1009 or such earlier time after the 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 conference call required to be held in accordance with clause (1) of this paragraph, announcing the time and date of such conference call and either including all information necessary to access the call or informing Holders, Prospective Purchasers, market makers and securities analysts how they can obtain such information. In addition, to the extent not satisfied by the foregoing, the Issuer shall, for so long as any Default that has Notes are outstanding, furnish to prospective investors, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) freely transferable under the Securities Act. Delivery of the such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the CompanyIssuer’s compliance with any of its the covenants under this Indenture (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The Notwithstanding the requirements to furnish reports, financial statements and other materials pursuant to clauses (a) and (b) of the first paragraph of this Section 1009, in the event that the Issuer, or any parent or successor thereto, is a “reporting issuer” (or its equivalent) in any province of Canada, (i) all reports, financial statements and other materials required to be furnished to the Trustee and Holders will be deemed to have been provided to the Trustee and the Holders in satisfaction of the requirements above if the Issuer, or any parent or successor thereto has filed all documents required to be filed pursuant to National Investment 51-102 — Continuous Disclosure Obligations on SEDAR or any successor system thereto; provided, that the Trustee shall have not be required to monitor whether such documents are so posted and shall not be required to retrieve such documents, and (ii) if the Issuer holds a quarterly conference call for its equity holders within fifteen Business Days of filing a financial report on SEDAR or any successor system thereto, the Issuer will no liability or responsibility longer be required to hold a separate conference call in respect of such financial report for the filing, timeliness or content Holders as described in the fifth paragraph of any such reportthis Section 1009.
Appears in 1 contract
Sources: Indenture (Telesat Canada)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding and the Company may not be Issuer is subject to the reporting requirements of the SEC under Section 13 or 15(d) of the Exchange Act, the Company shall provide Issuer will furnish to the Holders Trustee, within 30 days of the date that the Issuer is required to file such reports with the SEC, copies of the annual reports and quarterly reports and of the information, documents and other periodic or current reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulation prescribe) that the Issuer may be required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (other than confidential filings, documents subject to confidential treatment and correspondence with the SEC); provided, however, that the Issuer may satisfy its obligation to furnish such information to the Trustee at any time by filing such information with the SEC. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer will post the reports specified in the preceding sentence on its website within 15 days after the Issuer is required to file the same with the SEC.
(b) So long as any Notes are outstanding, in the event that the Issuer is not subject to the reporting requirements of the SEC under Section 13 or 15(d) of the Exchange Act, for so long as any Notes are outstanding, the Issuer will furnish, as provided in the next paragraph, the following reportsinformation:
(1) within 90 days after the end of each fiscal year of the Issuer:
(beginning with a) audited year-end consolidated financial statements of the fiscal year ending December 31Issuer and its Subsidiaries (including balance sheets, 2018), statements of operations and statements of cash flows which would be required from an annual report containing substantially all the information that would have been required to be contained SEC registrant in an annual report Annual Report on Form 10-K prepared in accordance with GAAP); and
(b) the information described in Item 101 (“Description of Business”), Item 102 (“Description of Property”), Item 103 (“Legal Proceedings”), Item 303 (“Management’s Discussion and Analysis of Financial Condition and Results of Operations”) and Item 404 (“Transactions with Related Persons, Promoters and Certain Persons”), in each case, of Regulation S-K under the Exchange Securities Act if the Company had been a reporting company under the Exchange Act (but only with respect to such period, to the extent similar such information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not would otherwise be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of be filed in an Annual Report on Form 10-K;; and
(c) a presentation of EBITDA-NCI of the Issuer consistent with the presentation of Adjusted EBITDA-NCI appearing elsewhere in the Offering Memorandum and derived from such financial statements; and
(2) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Issuer:
(beginning with a) unaudited quarterly consolidated financial statements of the fiscal quarter ending June 30Issuer and its Subsidiaries (including balance sheets, 2018), quarterly reports with respect to the most recent fiscal quarter statements of operations and year-to-date period containing substantially all the information that statements of cash flows which would have been be required to be contained from a SEC registrant in a quarterly report Quarterly Report on Form 10-Q and a SAS 100 review by the Issuer’s independent accountants) prepared in accordance with GAAP, subject to normal year-end adjustments;
(b) the information described in Item 103 (“Legal Proceedings”) and Item 303 (“Management’s Discussion and Analysis of Financial Condition and Results of Operations”), in each case, of Regulation S-K under the Exchange Securities Act if the Company had been a reporting company under the Exchange Act (but only with respect to such period to the extent similar such information is included would otherwise be required to be filed in a Quarterly Report on Form 10-Q; and
(c) a presentation of EBITDA-NCI of the Issuer consistent with the presentation of Adjusted EBITDA-NCI appearing elsewhere in the Offering Memorandum), including a “Management’s discussion Memorandum and analysis of derived from such financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures)statements; and
(3) within ten five Business Days after following the occurrence of any of the following events, a description in reasonable detail of such event: (a) any change in the executive officers or directors of the Issuer, (b) any incurrence of any material on-balance sheet or material off-balance sheet long-term debt obligation or capital lease obligation (each event that would have been required to be reported under Items 2.01 (Completion as defined in Item 303 of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8Regulation S-K under the Exchange Act if Securities Act) of or relating to the Company had been a reporting company under Issuer or any of its Restricted Subsidiaries, (c) the Exchange Actacceleration of any Indebtedness of the Issuer or any of its Restricted Subsidiaries, current reports containing substantially all the information that would have been required (d) any issuance or sale by the foregoing items Issuer of Equity Interests of the Issuer (excluding any issuance or sale pursuant to any stock option plan in the ordinary course of business), (e) the entry into of any agreement by the Issuer or any of its Subsidiaries relating to a transaction that has resulted or may result in a Change of Control, (f) any resignation or termination of the independent accountants of the Issuer or any engagement of any new independent accountants of the Issuer, (g) any determination by the Issuer or the receipt of advice or notice by the Issuer from its independent accountants, in either case, relating to non-reliance on previously issued financial statements, a related audit opinion or a completed interim review, (h) the completion by the Issuer or any of its Restricted Subsidiaries of the acquisition or disposition of a significant amount of assets, other than in the ordinary course of business, in each case to the extent such information would be required from an SEC registrant in a Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatK, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA the bankruptcy of the Company and its consolidated Restricted Subsidiaries for Issuer, (j) amendments to the period Certificate of four consecutive fiscal quarters ended on Incorporation or the date by-laws of the last balance sheet set forth in such report, presented in a manner similar to that found Issuer and (k) change in the Offering Memorandum, and (ii) fiscal year of the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateIssuer; provided, furtherhowever, howeverthat (w) such information and reports under this Section 4.03(b) shall not be required to contain separate financial statements for (i) any Guarantors that would be required under Section 3-10 of Regulation S-X promulgated by the SEC, (ii)(A) any Subsidiaries not consolidated by the Issuer or (B) any 50%-or-less-owned Persons accounted for by the Issuer or a Subsidiary by the equity method of accounting under GAAP, that, so long as in either case, would be required under Section 3-09 of Regulation S-X promulgated by the Company is not subject to SEC, (iii) any Subsidiaries the reporting requirements shares of which may be pledged that would be required under Section 13 3-16 of Regulation S-X promulgated by the SEC or 15(d(iv) any Subsidiaries or businesses acquired that would be required under Section 3-05 of Regulation S-X promulgated by the Exchange ActSEC, (x) such information and reports (aunder this Section 4.03(b) shall not 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, (y) such information and reports under this Section 302 4.03(b) shall not be required to contain any assessment by management of the Issuer’s disclosure controls and procedures or 404 internal control over financial reporting or any audit or review of internal control over financial reporting, and (z) such information and reports under this Section 4.03(b) shall not be required to contain any certification required by any such form or the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 2002. In the event that this Section 4.03(b) is applicable, the Issuer will (1) distribute the information and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K reports described in clauses (with respect to exhibits1), (b2) shall or (3) of this Section 4.03(b) electronically to the Trustee and (2) make such reports available to any Holder or beneficial owner of Notes, any prospective investor, any security analyst and any market maker affiliated with any Initial Purchaser by posting such reports on the Issuer’s website or on Intralinks or any comparable password-protected online data system. Notwithstanding anything herein to the contrary, the Issuer will not be required deemed to have failed to comply with any of its obligations under this Section 13(r4.03 for purposes of clause (3) of under Section 6.01 hereof until 120 days after the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 date any report is due under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with this Section 3-09 of Regulation S-X to 4.03. To the extent that the Company determines in its good faith judgment that Issuer fails to furnish any such information would not be material within the time periods specified under this Section 4.03 and such information is subsequently furnished prior to the Holders or time such failure results in an Event of Default, the business, assets, operations, financial positions or prospects of the Company and Issuer will be deemed to have satisfied its Restricted Subsidiaries (and obligations with respect to thereto and any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and Default with respect thereto shall be deemed to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)have been cured.
(bc) In addition, to the extent not satisfied by the foregoing, for so For as long as any Notes are outstandingoutstanding and are not freely transferable under the Securities Act, the Company shall Issuer will furnish to the Holders and to prospective purchasers of the Notesinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Senior Notes Indenture (Surgical Care Affiliates, Inc.)
Reports and Other Information. So long as any Securities are outstanding:
(ai) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Trustee and Holders the following reports:
(1) of Securities with annual consolidated financial statements audited by an internationally recognized firm of independent public accountants within 90 120 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A fiscal year and unaudited quarterly financial statements (controls including a balance sheet, statement of operations and procedures), 10 (directors, executive officers statement of cash flows for the fiscal quarter and corporate governance) year-to-date period then ended and 11 (executive compensation) of Form 10the corresponding fiscal quarter and year-K;
(2to-date period from the prior year) within 45 60 days after of the end of each of the first three fiscal quarters of each fiscal year year. Such annual and quarterly financial statements will (beginning i) be prepared in accordance with GAAP (with the fiscal quarter ending June 30, 2018), exception of the absence of year-end adjustments and footnotes in the case of quarterly reports with respect financial statements) and (ii) be accompanied by a “management discussion and analysis” of the results of operations of the Company and its Subsidiaries on a consolidated basis for the periods presented in a level of detail comparable (in the reasonable judgment of the Company) to the most recent fiscal quarter management discussion and yearanalysis of the results of operations of the Company contained in the Offering Memorandum. Unless otherwise publicly available, such financial statements and related discussion shall be made available to Holders of Securities and prospective investors in the Securities by posting on a password protected website accessible by all such persons, which shall announce when such items have been posted (it being understood that the Company may require a certification and customary non-to-date period containing substantially disclosure agreement to access such site); and
(ii) the Company shall furnish to the Trustee and Holders of Securities all the information that would have been be required to be contained in a quarterly report on Form 10-Q under filings with the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02 and 5.01 (but excluding, for the Exchange Act if the Company had been a reporting company under the Exchange Actavoidance of doubt, current reports containing substantially all the information financial statements and exhibits that would have been be required by the foregoing items pursuant to Item 9.01 of Form 8-K, other than financial statements and pro forma financial information required pursuant to clauses (a) and (b) of Item 9.01 of Form 8-K (in each case relating to transactions required to be contained in a current report on reported pursuant to Item 2.01 of Form 8-K under K) to the Exchange Act extent available (as determined by the Company in good faith, which determination shall be conclusive)) if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, that no such reports (a) shall not report will be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that furnished if the Company determines in its good faith judgment (which determination shall be conclusive) that such information would event is not be material to Holders of the Holders Securities or the business, assets, operations, financial positions position or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d)Subsidiaries, notwithstanding any lawtaken as a whole, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) if the Company determines in its good faith judgment (which determination shall be conclusive) that such information disclosure would not be otherwise cause material competitive or other material harm to the Holders or the business, assets, operations, financial positions position or prospects of the Company and its Restricted Subsidiaries (Subsidiaries, taken as a whole; provided that such non-disclosure shall be limited only to those specific provisions that would cause material competitive or other material harm and with respect to any financial statements not the occurrence of the event itself; provided, further, that no such report will be required to include a summary of the terms of any employment or compensatory arrangement, agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer, of the Company (or any of its Subsidiaries). All information to be delivered under furnished pursuant to this clause (e), notwithstanding ii) shall be furnished within the time periods specified in the SEC’s rules and regulations for non-accelerated filer reporting companies under the Exchange Act. Information to be furnished pursuant to this clause (ii) shall be made by posting on the website referred to in clause (i) above. So long as any law, rule or regulation that would require that some or all of such financial statements be auditedSecurities are outstanding, the Company may nonetheless deliver unaudited shall also issue a notification (which can be a notification through the website described above or by email to registered Holders of Securities) upon the posting of the information required by clauses (i) and (ii) above. The Company shall hold a conference call for the Holders of Securities to discuss such financial statements information described in clause (i) above no later than 10 calendar days after posting the annual financial information and the quarterly financial information described in clause (i) above. The Company will issue a notification (which can be a notification through the website described above or by email to satisfy registered Holders of Securities) of any such requirement).
(b) conference call at least three Business Days in advance. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstandinginformation referred to in the first paragraph above, the Company shall furnish to Holders of Securities, securities analysts and to prospective purchasers of investors in the NotesSecurities, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies Delivery of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation Trustee pursuant to make such delivery, but, in the case of the Trustee, such delivery shall be foregoing is for informational purposes only, and the Trustee’s receipt of such reports, information and documents thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificateupon certificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that Whether or not required by the Company may SEC, so long as any Notes are outstanding, if not be subject filed electronically with the SEC through the SEC’s Electronic Data Gathering, Analysis, and Retrieval System (or any successor system) (“E▇▇▇▇”), from and after the Issue Date, the Issuer will furnish to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to Trustee and the Holders within the following reportstime periods specified below:
(1i) within 90 120 days after the end of each fiscal year of the Issuer ending thereafter, a consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income (beginning or loss) or operations and cash flows for such fiscal year, together with related notes thereto, in comparative form the figures for the previous fiscal year ending December 31year, 2018)in reasonable detail and all prepared in accordance with GAAP in all material respects, an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion audited and analysis of financial condition and results of operations” section and accompanied by a report on the annual financial statements by the Company’s and opinion of an independent registered certified public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) firm of Form 10-Knationally or regionally recognized standing;
(2ii) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Issuer, a consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such fiscal quarter, and the related (beginning with the fiscal quarter ending June 30, 2018), quarterly reports with respect to the most recent a) consolidated statement of income for such fiscal quarter and for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended, and setting forth, commencing with such financial statements delivered for the first fiscal quarter following the first full fiscal year of the Issuer following the Issue Date, in each case of the preceding clauses (a) and (b), in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year-to-date period containing substantially all ;
(iii) concurrently with the information that would have been required to be contained delivery of the financial statements set forth in clauses (i) and (ii) above, a narrative report prepared by management of the Issuer describing the results of operations in a quarterly report on Form 10-Q under form customarily prepared by management of the Exchange Act if the Company had been a reporting company under the Exchange Act Issuer (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly narrative report shall need not be required to contain the information required by Part I, Item 4 of Form 10comply with disclosure requirements under Regulation S-Q (controls and proceduresK); and;
(3iv) within ten Business Days promptly after the occurrence of each event any of the following events, all current reports that would have been be required to be reported under Items filed with the SEC on Form 8-K if the Issuer were required to file such reports for any of the following events (provided, however, that no such current report will be required to be furnished if the Issuer determines in its good faith judgment that such event is not material to the holders of the Notes or the business, assets, operations, financial position or prospects of the Issuer and its Restricted Subsidiaries, taken as a whole; provided, further, that the foregoing shall not obligate the Issuer to make available 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, or to include a summary of the terms of any employment or compensatory arrangement, agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer of the Issuer (or any of its Subsidiaries)):
(A) Item 1.03 (Bankruptcy or Receivership);
(B) Item 2.01 (Completion of Acquisition or Disposition of Assets) (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); provided that (w) such Item 2.01 shall not trigger the provision of financial information contemplated by Item 9.01 of Form 8-K referred to in Item 2.01 of Form 8-K, 2.06 (Material Impairmentsx) such information will not be required to include as an exhibit copies of any financial statements that would be required to be filed as exhibits to a current report on Form 8-K except for historical financial statements to the extent reasonably available, (y) to the extent provided, such historical financial statements will not be required to comply with Regulation S-X and (z) nothing in this clause (B) shall require any financial information as a result of the aggregate impact of individually insignificant businesses;
(C) Item 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), ;
(D) Item 4.01 (Changes Change in Registrant’s Certifying Accountant), 4.02 ;
(E) Item 4.02(a) and (b) (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review);
(F) and Item 5.01 (Changes in Control of Registrant);
(G) in a current report on Form 8-K under Items 5.02 (b) (Departure of Directors or Certain Officers) (with respect to the Exchange Act if the Company had been a reporting company under the Exchange Actprincipal executive officer, current reports containing substantially all the president, principal financial officer, principal accounting officer and principal operating officer only) and (c) (Election of Directors; Appointment of Certain Officers) (other than with respect to information that would have been required or contemplated by the foregoing items subclause (3) of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatsuch Item), for the avoidance of doubtbut excluding, in each of the reports delivered pursuant to case under this clause (1G), any information otherwise required or contemplated by Item 402 of Regulation S-K; and
(H) or Item 5.03(b) (2) aboveChanges in Fiscal Year); in each case, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar that complies in all material respects with the requirements specified in such form (except as described above or below and subject, in the case of required financial information, to that found exceptions consistent with the presentation of financial information in the Offering Memorandum, and to the extent filed within the times specified above); provided, however, that such reports required pursuant to clauses (i), (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d(iii) of the Exchange Act, such reports above (a) shall not be required to comply with Section 302 302, Section 404 or 404 Section 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 2002, as amended, or related Items 307 and 308 of Regulation S-K promulgated by the SEC K, or Item 601 10(e) of Regulation S-K (with respect to exhibitsany non-GAAP financial measures contained therein), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction Items 402, 403, 406 and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) 407 of Regulation S-K (relating to non-GAAP financial measures)K, (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by comply with Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by X, except that summary guarantor/non-guarantor information consistent with the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included disclosure in the Offering Memorandum will be required)provided, (d) shall not be required to comply with Section 3-09 of Regulation S-X include any segment or business unit level financial information except to the extent that included in the Company determines in its good faith judgment that such information would not be material to the Holders or the businessOffering Memorandum, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 include any exhibits that would have been required to be filed pursuant to Item 601 of Regulation S-X K, except for agreements evidencing material Indebtedness (excluding any schedules thereto), (f) with respect to any historical financial statements of an acquired business and related pro forma information relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K, such historical financial statements and pro forma information shall only be required to the extent and in the form available to the Issuer (as determined by the Issuer in good faith), (g) shall not be required to include any trade secrets or other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer and (h) solely if and to the extent that the applicable deadline required by the SEC for delivery of the Issuer or the applicable Parent Company’s Form 10-Q and/or 10-K (as applicable) for any period are later than the applicable deadlines for delivery set forth in clauses (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) (as in effect immediately prior such time) for such period, such deadlines set forth in clauses (i) and (ii) shall automatically be deemed to be replaced with such later deadlines as required by the Company determines in its good faith judgment that such information would not be material SEC (without any further action or consent of any party to the Holders or the business, assets, operations, financial positions or prospects this Indenture). The requirement to furnish any of the Company and its Restricted Subsidiaries reports required pursuant to clauses (and with respect to any financial statements required to be delivered under this clause (ea)(i), notwithstanding any law, rule or regulation that would require that some or all (a)(ii) and (a)(iii) of this Section may be satisfied by the posting of such financial statements be audited, reports within the Company may nonetheless deliver unaudited financial statements time periods specified above on Intralinks or any comparable password protected online data system requiring user identification and a confidentiality acknowledgement (the “Secured System”). If the Issuer uses the Secured System to satisfy such requirementrequirements, it shall make readily and promptly available any password or other login information relating to the Secured System to Holders, prospective investors (each, a “Prospective Investor”).
, security analysts who have certified to the Issuer that they are reputable security analysts employed by a reputable financial institution who regularly cover or intend to cover the Issuer and the Notes (beach, a “Security Analyst”) In additionand market makers who have certified to the Issuer that they are reputable market makers who regularly make or intend to make a market in the Notes (each, a “Market Maker”), and shall make readily and promptly available on an “Investor Relations” page on its external website contact information for being provided access to the Secured System to any Holders, Prospective Investors, Security Analysts or Market Makers and promptly comply with any such requests for access to the Secured System to the extent not satisfied by the foregoing, provided for so long as any Notes are outstanding, the Company herein. The Issuer shall furnish to Holders and to prospective purchasers of the NotesProspective Investors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Issuer will be deemed to have satisfied the requirements of this covenant if any Parent Company is subject files with the SEC the reports, documents and information pursuant to the reporting requirements of Section 13 13(a) or 15(d) of the Exchange Act, the Company shall file with the SEC in each case within the applicable time periods specified in by the SEC’s applicable rules and regulations of the SEC (including any applicable grace periods); provided, that are then applicable if and so long as such Parent Company has Independent Assets or Operations, the same is accompanied by consolidated information (which need not be audited or reviewed) that explains in reasonable detail the differences between the information relating to such Parent Company, on the one hand, and the information relating to the Company all Issuer and its Subsidiaries on a stand-alone basis, on the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SECother hand.
(db) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior Notwithstanding anything herein to the date such conference call is contrary, failure by the Issuer to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated comply with any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information 4.03 for purposes of Section 6.01(c) hereof will not constitute an Event of Default thereunder until 120 days after the receipt of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Companywritten notice delivered thereunder.
(gc) To the extent any information is not provided within the time periods specified in this Section 4.06 4.03 and such information is subsequently provided, the Company Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(hd) Delivery With respect to all of the foregoing, the Trustee shall have no duty or obligation to determine whether such information, documents or reports have been so posted on any website or online data system or filed with the SEC via the E▇▇▇▇ filing system (or any successor system). The posting or delivery of such reports, information and documents in accordance with this Section 4.06 shall satisfy to the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be Trustee is for informational purposes only, only and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the CompanyIssuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s CertificateCertificates). The Trustee shall have no liability duty to review or responsibility for analyze any information, documents or reports delivered to it. Additionally, the filingTrustee shall not be obligated to monitor or confirm, timeliness on a continuing basis or content of otherwise, the Issuer’s compliance with the covenants under the Indenture or whether any such reportinformation, reports or other documents are filed with the SEC or posted on any website, datasite or Secured System under the Indenture, or to participate in any conference calls.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall provide to the Holders the following reports:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending December 31, 20182023), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (beginning with the fiscal quarter ending June 30, 2018in which the Issue Date occurs), quarterly reports with respect to the most recent fiscal quarter and year-to-date period containing substantially all the information that would have been required to be contained in a quarterly report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision)prepared in accordance with GAAP; provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided that, for the avoidance of doubt, in each of the reports delivered pursuant to clause (1) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended on the date of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain the disclosure contemplated by Rule 13-01 or Rule 13-02 of Regulation S-X promulgated by the SEC or a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required)SEC, (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any First Lien Notes are outstanding, the Company shall furnish to Holders and to prospective purchasers of the First Lien Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the First Lien Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding The Company will be permitted to satisfy its obligations under this covenant with respect to financial information relating to the foregoingCompany (including, at all times for the avoidance of doubt, the obligation to provide a calculation of Adjusted EBITDA) by furnishing financial information relating to any Parent Entity; provided that the Company same is subject accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the reporting requirements Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of Section 13 doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(d) Notwithstanding anything to the contrary set forth above, if the Company or 15(d) any Parent Entity has furnished the Holders of First Lien Notes or filed with the Exchange ActSEC the reports described in the preceding paragraphs with respect to the Company or any Parent Entity, the Company shall file be deemed to be in compliance with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any provisions of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SECthis covenant.
(de) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company or any Parent Entity shall also hold live quarterly conference calls with the opportunity to ask questions of the Company or such Parent Entity, as applicable (it being understood that such quarterly conference call may be the same conference call as that held for Company’s or, as applicable, any Parent Entity’s equity investors, debt investors or analysts). No fewer than five Business Days prior Prior to the date such conference call is to be held, the Company Company, or, as applicable, the applicable Parent Entity shall issue a press release to the appropriate U.S. wire services announcing or otherwise announce such quarterly conference call for the benefit of the Holders, beneficial owners of the First Lien Notes, bona fide prospective purchasers of the First Lien Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain include information on how to access such quarterly conference call.
(ef) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information required by Section 4.06(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on of selected financial metrics (which metrics will be selected by the face Company in its sole discretion) of the financial statements or in the footnotes to the financial statements and such Unrestricted Subsidiaries as a group in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the Trustee’s receipt of such reports, information and documents shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is under no duty to examine such reports, information or documents to ensure compliance with the provisions of this First Lien Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report, and the Trustee shall have no duty to participate in or monitor any conference calls.
Appears in 1 contract
Sources: First Lien Senior Secured Pik Notes Indenture (WeWork Inc.)
Reports and Other Information. (a) Notwithstanding that For so long as any Notes are outstanding, unless the Company may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActAct or otherwise complies with such reporting requirements, the Company shall provide will furnish without cost to each Holder of Notes and file with the Holders the following reportsTrustee:
(1) within 90 days after the end of each fiscal year of the Company:
(beginning with A) audited year-end consolidated financial statements of the fiscal year ending December 31Company and its Subsidiaries (including balance sheets, 2018), statements of operations and statements of cash flows which would be required from an annual report containing substantially all the information that would have been required to be contained SEC registrant in an annual report Annual Report on Form 10-K prepared in accordance with GAAP;
(B) the information described in Item 101 (“Description of Business”), Item 102 (“Description of Property”), Item 103 (“Legal Proceedings”), Item 303 (“Management’s Discussion and Analysis of Financial Condition and Results of Operations”) and Item 404 (“Transactions with related persons, promoters and certain persons”), in each case, of Regulation S-K under the Exchange Securities Act if the Company had been a reporting company under the Exchange Act (but only with respect to such period, to the extent similar such information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not would otherwise be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of be filed in an Annual Report on Form 10-K;
(C) a presentation of EBITDA of the Company consistent with the presentation of Adjusted EBITDA in the Offering Circular and derived from such financial statements; and
(D) all pro forma and historical information in respect of any significant transaction (as determined in accordance with Rule 3-05 of Regulation S-X under the Securities Act) consummated more than 75 days prior to the date such information is furnished for the time periods for which such financial information would be required (if the Company were subject to the filing requirements of the Exchange Act) in a filing on Form 8-K with the SEC at such time;
(2) within (x) 75 days after the end of the fiscal quarter ended September 30, 2007, (y) 60 days after the end of the fiscal quarter ended March 31, 2008 and (z) 45 days after the end of the fiscal quarters ended June 30, 2008 and September 30, 2008 and each of the first three fiscal quarters of each fiscal year of the Company thereafter:
(beginning with A) unaudited quarterly consolidated financial statements of the fiscal quarter ending June 30Company and its Subsidiaries (including balance sheets, 2018), quarterly reports with respect to the most recent fiscal quarter statements of operations and year-to-date period containing substantially all the information that statements of cash flows which would have been be required to be contained from a SEC registrant in a quarterly report Quarterly Report on Form 10-Q and a SAS 100 review by the Company’s independent accountants) prepared in accordance with GAAP, subject to normal year-end adjustments;
(B) the information described in Item 103 (“Legal Proceedings”) and Item 303 (“Management’s Discussion and Analysis of Financial Condition and Results of Operations”), in each case, of Regulation S-K under the Exchange Securities Act with respect to such period to the extent such information would otherwise be required to be filed in a Quarterly Report on Form 10-Q;
(C) a presentation of EBITDA of the Company consistent with the presentation of Adjusted EBITDA in the Offering Circular and derived from such financial statements; and
(D) all pro forma and historical financial information in respect of any significant transaction (as determined in accordance with Rule 3-05 of Regulation S-X under the Securities Act) consummated more than 75 days prior to the date such information is furnished to the extent not previously provided and for the time periods such financial information would be required (if the Company had been a reporting company under were subject to the filing requirements of the Exchange Act (but only to Act) in a filing on Form 8-K with the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision); provided that SEC at such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures)time; and
(3) within ten five Business Days after following the occurrence of any of the following events, a description in reasonable detail of such event: (A) any change in the executive officers or directors of the Company, (B) any incurrence of any material on-balance sheet or material off-balance sheet long-term debt obligation or capital lease obligation (each event that would have been required to be reported under Items 2.01 (Completion as defined in Item 303 of Acquisition or Disposition of Assets), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and 5.01 (Changes in Control of Registrant) in a current report on Form 8Regulation S-K under the Exchange Act if Securities Act) of or relating to the Company had been a reporting company under or any of its Restricted Subsidiaries, (C) the Exchange Actacceleration of any Indebtedness of the Company or any of its Restricted Subsidiaries, current reports containing substantially all the information that would have been required (D) any issuance or sale by the foregoing items Company of Equity Interests of the Company (excluding any issuance or sale pursuant to any stock option plan in the ordinary course of business), (E) the entry into of any agreement by the Company or any of its Subsidiaries relating to a transaction that has resulted or may result in a Change of Control, (F) any resignation or termination of the independent accountants of the Company or any engagement of any new independent accountants of the Company, (G) any determination by the Company or the receipt of advice or notice by the Company from its independent accountants, in either case, relating to non-reliance on previously issued financial statements, a related audit opinion or a completed interim review, (H) the completion by the Company or any of its Restricted Subsidiaries of the acquisition or disposition of a significant amount of assets, otherwise than in the ordinary course of business, in each case to the extent such information would be required from an SEC registrant in a Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatK, for the avoidance of doubt, in each (I) bankruptcy of the reports delivered pursuant Company, (J) amendments to clause (1) the Certificate of Incorporation or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA bylaws of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive (K) change in fiscal quarters ended on the date year of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateCompany; provided, further, however, that, so long as the Company is not subject to the reporting requirements of Section 13 or 15(dthat (w) of the Exchange Act, such reports shall not be required to contain separate financial statements for Guarantors or Subsidiaries the shares of which are pledged to secure the notes or any Guarantee that would be required under Section 3-10 or Section 3-16 of Regulation S-X, respectively, promulgated by the SEC other than condensed consolidating footnote disclosure containing information with respect to Guarantors and non-Guarantor Subsidiaries, in each case on an aggregate basis, (ax) such reports shall not be required to comply with Section 302 Regulation G under the Exchange Act or 404 Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained therein, (y) such reports shall not be required to contain any assessment by management of the Company’s disclosure controls and procedures or internal control over financial reporting or any audit or review of, or attestation relating to, such assessment and (z) such reports shall not be required to contain any certification required by any such form or the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement)2002.
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the The Company shall furnish to Holders and to prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4either (1) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on maintain a website (which may be nonpublic and may be maintained by the Company or a third partynon-public) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “investors that certify that they are qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such makers are given access and to the reasonable satisfaction of the Company and who agree to treat which such information as confidential.
is posted; (c2) Notwithstanding the foregoing, at all times that the Company is subject distribute via electronic mail such information to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “investors that certify that they are qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain makers who request to receive such distributions or (3) file such information with the time and the date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference callSEC.
(ec) If the Company has designated At any time that any of its the Company’s Subsidiaries as Unrestricted Subsidiaries and such are Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the quarterly and annual and quarterly financial information required by Section 4.06(a) shall the preceding paragraph will include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or in the footnotes to the financial statements thereto, and in the “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations” or other comparable section, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(gd) To The Company shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the extent time, to participate in quarterly conference calls to discuss operating results and related matters. The Company shall issue a press release which will provide the date and time of any information is not provided within such call and will direct Holders, prospective investors and securities analysts to contact the time periods specified in this Section 4.06 and such information is subsequently providedinvestor relations office of the Company to obtain access to the conference call.
(e) In addition, the Company will furnish to the Holders and prospective investors upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(f) Notwithstanding anything herein to the contrary, the Company will not be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed failed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance comply with any of its covenants obligations under this Section 4.03 for purposes of clause (as to which 3) under Section 6.01 hereof until 90 days after the Trustee date any report is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such reportdue under this Section 4.03.
Appears in 1 contract
Sources: Senior Subordinated Notes Indenture (ASC Acquisition LLC)
Reports and Other Information. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange ActSo long as any Notes are outstanding, the Company Issuer shall provide to the Holders the following reportsfurnish:
(i) beginning with the fiscal quarter in which the Release Date occurs, (1) within 90 120 days after of the end of each fiscal year (beginning with the year, annual audited financial statements for such fiscal year ending December 31, 2018), an annual report containing substantially all the information that would have been required to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum), including a “Management’s discussion and analysis of financial condition and results of operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm; provided that such annual report shall not be required to contain information required by Items 9A (controls and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-K;
(2) within 45 60 days after (or 75 days with respect to the quarter in which the Release Date occurs) of the end of each of the first three fiscal quarters of every fiscal year, unaudited financial statements for the interim period as of, and for the period ending on, the end of such fiscal quarter, in each fiscal year (beginning with the fiscal quarter ending June 30case, 2018), quarterly reports including “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosures with respect to the most recent periods presented and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants (all of the foregoing financial information to be prepared (i) on a basis substantially consistent with and subject to exceptions substantially consistent with, the corresponding financial information included in the Offering Memorandum or (ii) on a basis substantially consistent with the then applicable SEC requirements); provided that the Issuer shall be required to deliver (A) the unaudited financial statements for Patheon Inc.’s fiscal quarter ended January 31, 2013, including “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosures with respect to such fiscal quarter, it being understood that such financial statements will not be required to give effect to the Transactions, within 60 days of the end of such fiscal quarter and year-to-date period (B) certain unaudited financial information for the DPP Business’ fiscal quarter ended December 31, 2013, consisting of revenue, cost of sales, operating expenses, earnings before interest and taxes and earnings before interest, taxes, depreciation and amortization, within 120 days of the end of such fiscal quarter; and
(ii) promptly from time to time after the occurrence of an event required to be therein reported, such other reports (in each case, without exhibits) containing substantially all the same information that would have been required to be contained in a quarterly report Current Report on Form 108-Q K under the Exchange Act if the Company had been under Item 1.01 (Entry into a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering MemorandumMaterial Definitive Agreement), including 1.02 (Termination of a “Management’s discussion and analysis of financial condition and results of operations” section and unaudited quarterly financial statements reviewed pursuant to Statement on Auditing Standards No. 100 Material Definitive Agreement), 1.03 (Bankruptcy or any successor provisionReceivership); provided that such quarterly report shall not be required to contain the information required by Part I, Item 4 of Form 10-Q (controls and procedures); and
(3) within ten Business Days after the occurrence of each event that would have been required to be reported under Items 2.01 (Completion of Acquisition or Disposition of Assets), 2.02 (Results of Operations and Financial Condition), 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant), 2.04 (Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.05 (Costs Associated with Exit or Disposal Activities), 2.06 (Material Impairments), 4.01 (Changes in Registrant’s Certifying Accountant), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) and ), 5.01 (Changes in Control of Registrant), 5.02(a)(1)(i)-(ii), (b) in a current report on Form 8-K under and (c)(1) (Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers) and Item 9.01 (Financial Statements and Exhibits), but limited only to the Exchange Act if the Company had been a reporting company under the Exchange Act, current reports containing substantially all the financial statements of business acquisitions and pro forma financial information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under reported pursuant to Item 2.01 and excluding any such information relating to the Exchange Act if the Company had been a reporting company under the Exchange ActTransactions; provided that, for the avoidance that any historical information of doubt, in each of the reports delivered an acquired business provided pursuant to this clause (1b) or (2) above, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company and its consolidated Restricted Subsidiaries for the period of four consecutive fiscal quarters ended need not be audited if such audits are not reasonably available on the closing date of the last balance sheet set forth related transaction; provided further, however, that no report in this clause (b) shall be required to be furnished if the Issuer determines in its good faith judgment that such reportevent is not material to the Holders or the business, presented in a manner similar to that found in assets, operations, financial position or prospects of the Offering Memorandum, Issuer and (ii) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet dateRestricted Subsidiaries; provided, further, however, that, so long as the Company is not subject to the reporting requirements in each case of Section 13 or 15(dclauses (i) of the Exchange Actand (ii) above, (x) in no event shall such reports (a) shall not be required to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits), (b) shall not be required to comply with Section 13(r) of the Exchange Act (relating to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote statements for Guarantors and Non-Guarantor or Subsidiaries contemplated by Rule 3-10 the shares of which are pledged to secure the Notes or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included in the Offering Memorandum will be required), (d) shall not any Guarantee that would be required to comply with under (a) Section 3-09 of Regulation S-X (or any similar IFRS provision) to the extent that the Company Issuer determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company Issuer and its Restricted Subsidiaries Subsidiaries, (and with respect to b) Section 3-10 of Regulation S-X (or any financial statements required to be delivered under this clause similar IFRS provision) or (d), notwithstanding c) Section 3-16 of Regulation S-X (or any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirementsimilar IFRS provision) and (ey) in no event shall not such reports be required to comply with Section 3-05 of Regulation S-X to G under the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(wExchange Act or Item 10(e) of Regulation S-X K (or any similar IFRS provision) promulgated by the SEC with respect to any non-GAAP (or any non-IFRS) financial measures contained therein. Delivery of such reports and other information to the Trustee shall be for informational purposes only and receipt thereof shall not constitute constructive notice of any kind. The availability of the foregoing materials on either the SEC’s ▇▇▇▇▇ database service or on the Issuer’s website shall be deemed to satisfy the Issuer’s delivery obligation to deliver such reports, it being understood that the Trustee shall have no obligation whatsoever to determine if such materials have been posted. The Issuer shall (1) distribute such reports and information electronically to the Trustee and (2) make available such reports and information to any Holder, any bona fide prospective purchaser of the Notes (a “Prospective Purchaser”), any bona fide security analyst or any bona fide market maker by posting such reports and information on Intralinks or any comparable password protected online data system or on a public website; provided that the Issuer shall only be required to make readily available any password or other login information to any such Holder, Prospective Purchaser, security analyst or market maker; provided further that such Holders, Prospective Purchasers, security analysts and market makers shall agree to (i) treat all such reports (and the information 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) and information.
(b) So long as any Notes are outstanding, the Issuer shall also:
(i) as promptly as reasonably practicable after furnishing to the Trustee the annual and quarterly reports required by clauses (i) and (ii) of Section 4.03(a), hold a conference call to discuss such reports and the Company determines in its good faith judgment that such information would not be material results of operations for the relevant reporting period; and
(ii) issue a press release to the Holders or appropriate nationally recognized wire services prior to the business, assets, operations, financial positions or prospects date of the Company and its Restricted Subsidiaries (and with respect to any financial statements conference call required to be delivered under this held in accordance with clause (ei) of this Section 4.03(b), notwithstanding any law, rule or regulation that would require that some or all announcing the time and date of such financial statements be auditedconference call and either including all information necessary to access the call or informing Holders, the Company may nonetheless deliver unaudited financial statements to satisfy Prospective Purchasers, securities analysts and market makers how they can obtain such requirement)information.
(bc) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company Issuer shall furnish to Holders and to prospective purchasers of the NotesProspective Purchasers, upon their request, the request any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(cd) Notwithstanding the foregoing, at all times the financial statements, information and other documents required to be provided as described above, may be those of (i) the Issuer or (ii) any Parent Entity that is or becomes a Guarantor rather than those of the Issuer; provided that the Company same is subject accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time Issuer and the date of such conference call and direct Restricted Subsidiaries on a standalone basis, on the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference callother hand.
(e) If the Company Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held Subsidiaries hold in the aggregate more than 10.02.50% of Consolidated the Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet dateIssuer, then the annual and quarterly financial information required by clause (i) of Section 4.06(a4.03(a) shall include a reasonably detailed presentation, as determined in good faith by the Company, either on the face of the financial statements or statements, in the footnotes to the financial statements and thereto or in the an “Management’s discussion Discussion and analysis Analysis of financial condition Financial Condition and results Results of operationsOperations,” section, of the financial condition and results of operations of the Company Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(f) In the event that any direct or indirect parent company Subsidiaries of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the CompanyIssuer.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Company may not be subject Issuer and Wind shall provide the Trustee (who, at the expense of the Issuer, will furnish by mail to the reporting requirements of Section 13 or 15(dHolders, Common Depositary, Euroclear, Clearstream and DTC) for the benefit of the Exchange Act, the Company shall provide to the Holders the following reportsof Notes and potential purchasers of Notes:
(1i) within 90 120 days after the end of each the Issuer’s and Wind’s fiscal year (beginning year, annual reports containing the following information with the fiscal year ending December 31, 2018), an annual report containing a level of detail that is substantially all the information that would have been required comparable and similar in scope to be contained in an annual report on Form 10-K under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum): (1) audited consolidated balance sheet of the Issuer and Wind, respectively, as of the end of the two most recent fiscal years and audited consolidated income statements and statements of cash flow of the Issuer and Wind, respectively, for the three most recent fiscal years, including complete footnotes to such financial statements and the report of the independent auditors on the financial statements; (2) pro forma income statement and balance sheet information, together with explanatory footnotes, for any material acquisitions or dispositions (including, without limitation, any acquisitions or disposition that, individually or in the aggregate when considered with all other acquisitions or dispositions that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates, represent greater than 20% of the consolidated revenues, EBITDA, or assets of the Issuer and Wind, respectively, on a pro forma basis) or recapitalizations that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates; (3) an operating and financial review of the audited financial statements, including a “Management’s discussion of the results of operations including a discussion of subscribers, churn, ARPU and analysis traffic and a breakout of revenue and EBITDA between the mobile and fixed-line business, financial condition and results of operations” section liquidity and capital resources, and a report on discussion of material commitments and contingencies and critical accounting policies; (4) a description of the annual financial statements by industry, business, management and shareholders of the Company’s independent registered public accounting firmIssuer and Wind, all material affiliate transactions, Indebtedness and material financing arrangements and a description of all material contractual arrangements, including material debt instruments; provided that such annual report shall not be required to contain information required by Items 9A and (controls 5) risk factors and procedures), 10 (directors, executive officers and corporate governance) and 11 (executive compensation) of Form 10-Kmaterial recent developments;
(2ii) within 45 60 days after following the end of each of the first three fiscal quarters of in each fiscal year (beginning with of the fiscal quarter ending June 30Issuer and Wind, 2018)respectively, quarterly reports containing the following information: (1) an unaudited condensed consolidated balance sheet as of the end of such quarter and unaudited condensed statements of income and cash flow for the quarterly and year to date periods ending on the unaudited condensed balance sheet date, and the comparable prior year periods for the Issuer and Wind, respectively, together with respect to condensed footnote disclosure; (2) pro forma income statement and balance sheet information, together with explanatory footnotes, for any material acquisitions or dispositions (including, without limitation, any acquisition or disposition that, individually or in the aggregate when considered with all other acquisitions or dispositions that have occurred since the beginning of the most recent recently completed fiscal quarter and year-to-date period containing substantially all the information that would have been required as to be contained in a which such quarterly report relates, represents greater than 20% of the consolidated revenues, EBITDA or assets of the Issuer and Wind, respectively, on Form 10a pro forma basis) or recapitalizations that have occurred since the beginning of the most recently completed fiscal quarter as to which such quarterly report relates; (3) an operating and financial review of the unaudited financial statements (including a discussion of subscribers, churn, ARPU and traffic and a breakout of revenue and EBITDA between the mobile and fixed-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandumline businesses), including a “Management’s discussion and analysis of the consolidated financial condition and results of operations” section operations of Wind and unaudited any material change between the current quarterly period and the corresponding period of the prior year; (4) material developments in the business of Wind and its Subsidiaries; (5) financial statements reviewed pursuant developments and trends in the business in which Wind and its Subsidiaries are engaged; and (6) material recent developments and any material changes to Statement on Auditing Standards No. 100 (or any successor provision); provided that such quarterly the risk factors disclosed in the most recent annual report shall not be required with respect to contain the information required by Part IIssuer and Wind, Item 4 of Form 10-Q (controls and procedures)respectively; and
(3iii) within ten Business Days promptly after the occurrence of each event (1) a material acquisition, disposition or restructuring (including any acquisition or disposition that would have been required require the delivery of pro forma financial information pursuant to be reported under Items 2.01 clauses (Completion of Acquisition i) or Disposition of Assets(ii) above), 2.06 (Material Impairments)2) any senior management change at the Issuer and Wind, 4.01 respectively, (Changes 3) any change in Registrant’s Certifying Accountant)the auditors of the Issuer and Wind, 4.02 respectively, (Non-Reliance on Previously Issued Financial Statements 4) any resignation of a member of the Board of Directors of the Issuer and Wind, respectively, as a result of a disagreement with the Issuer or a Related Audit Report or Completed Interim ReviewWind, respectively, (5) and 5.01 (Changes in Control of Registrant) the entering into an agreement that will result in a current report on Form 8-K under Change of Control or (6) any material events that the Exchange Act if the Company had been a reporting company under the Exchange ActIssuer or Wind, current reports containing substantially all the information that would have been required by the foregoing items of Form 8-K to be contained in a current report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act; provided thatrespectively, for the avoidance of doubtannounces publicly, in each case, a report containing a description of such events.
(b) If Wind has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Subsidiaries are Significant Subsidiaries, then the quarterly and annual financial information required by Section 4.03(a) will include a reasonably detailed presentation, either on the face of the reports delivered pursuant to clause (1) financial statements or (2) abovein the footnotes thereto, the Company shall set forth (i) a calculation of Adjusted EBITDA, Adjusted EBITDA Before Growth Investments and Community Adjusted EBITDA of the Company financial condition and results of operations of Wind and its consolidated Restricted Subsidiaries for separate from the period financial condition and results of four consecutive fiscal quarters ended on the date operations of the last balance sheet set forth in such report, presented in a manner similar to that found in the Offering Memorandum, and Unrestricted Subsidiaries of Wind.
(iic) the amount of Unrestricted Cash and Total Indebtedness of ChinaCo as of such balance sheet date; provided, further, however, that, For so long as any Notes remain outstanding and during any period during which Wind and the Company is Issuer are not subject to the reporting requirements of Section 13 or 15(d) of the U.S. Exchange Act, such reports (a) shall not be required Act nor exempt therefrom pursuant to comply with Section 302 or 404 of the ▇▇▇▇▇▇▇▇Rule 12g3-▇▇▇▇▇ Act of 2002 or related Items 307 and 308 of Regulation S-K promulgated by the SEC or Item 601 of Regulation S-K (with respect to exhibits2(b), (b) shall not be required to comply with Section 13(r) of Wind and the Exchange Act (relating Issuer will furnish to the Iran Threat Reduction and Syrian Human Rights Act) or Rule 13p-1 under the Exchange Act and Form SD (relating to conflict minerals) or Item 10(e) holders of Regulation S-K (relating to non-GAAP financial measures), (c) shall not be required to contain a separate financial footnote for Guarantors and Non-Guarantor Subsidiaries contemplated by Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC (except summary financial information with respect to Non-Guarantor Subsidiaries of the type and scope included beneficial interest in the Offering Memorandum will be required), (d) shall not be required to comply with Section 3-09 of Regulation S-X to the extent that the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (d), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement) and (e) shall not be required to comply with Section 3-05 of Regulation S-X to the extent that (i) such requirement to furnish acquired business financial statements would be triggered only because the income from continuing operations before income taxes and extraordinary items of the acquired business exceeds 20% of such pre-tax income of the Company and its consolidated Subsidiaries for the applicable period set forth in Rule 1-02(w) of Regulation S-X and (ii) the Company determines in its good faith judgment that such information would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries (and with respect to any financial statements required to be delivered under this clause (e), notwithstanding any law, rule or regulation that would require that some or all of such financial statements be audited, the Company may nonetheless deliver unaudited financial statements to satisfy such requirement).
(b) In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company shall furnish to Holders and to securities analysts and prospective purchasers of the Notesinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the U.S. Securities Act. The requirements set forth in this clause (b) and the preceding clause (a) of this Section 4.06 may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders, bona fide prospective purchasers of the Notes (which prospective purchasers will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act)), securities analysts and market making institutions that certify their status as such to the reasonable satisfaction of the Company and who agree to treat such information as confidential.
(c) Notwithstanding the foregoing, at all times that the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company all the reports and information described in Section 4.06(a), but without giving effect to any of the provisos contained therein (assuming that such provisions otherwise apply under applicable SEC rules and regulations), in each case in a manner that complies in all material respects with the requirements specified in the applicable forms promulgated by the SEC.
(d) In addition, no later than fifteen Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or 4.06(a)(2) above, the Company shall also hold live quarterly conference calls with the opportunity to ask questions of the Company. No fewer than five Business Days prior to the date such conference call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, bona fide prospective purchasers of the Notes (which prospective purchasers shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), securities analysts and market making financial institutions, which press release shall contain the time Wind and the date Issuer will also make available copies of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, held more than 10.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or accounted for more than 10.0% of consolidated total revenue of the Company and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ended on the balance sheet date, then the annual and quarterly financial information all reports required by Section 4.06(a4.03(a) shall include a reasonably detailed presentation, (i) on Wind’s website and (ii) if and so long as determined in good faith by the Company, either Notes are listed on the face Euro MTF Market and the rules and regulations of the financial statements or in Luxembourg Stock Exchange so require, at the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, specified office of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted SubsidiariesPaying Agent in Luxembourg.
(f) In the event that any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.06 to provide consolidated financial information of the Company by furnishing consolidated financial information relating to such parent; provided that (1) such financial statements are accompanied by consolidating financial information for such parent, the Company, the Guarantors and the Non-Guarantor Subsidiaries in the manner prescribed by the SEC and (2) such parent is not engaged in any business in any material respect other than such activities as are incidental to its ownership, directly or indirectly, of the Capital Stock of the Company.
(g) To the extent any information is not provided within the time periods specified in this Section 4.06 and such information is subsequently provided, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default that has not become an Event of Default with respect thereto shall be deemed to have been cured.
(h) Delivery of the reports, information and documents in accordance with this Section 4.06 shall satisfy the Company’s obligation to make such delivery, but, in the case of the Trustee, such delivery shall be for informational purposes only, and the 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report.
Appears in 1 contract
Sources: Indenture (VimpelCom Ltd.)