Appendix A — Selected Regulation S-X and Regulation S-K Rules
Regulation S-X, Rules 3-10, 3-16,
13-01, and 13-02, as amended by the SEC’s March 2020 final rule, and Regulation S-K,
Item 601(b)(22), are reproduced below.
SEC Regulation S-X, Rule 3-10
§ 210.3-10 Financial
statements of guarantors and issuers of guaranteed
securities registered or being registered.
(a) If an issuer or guarantor of a
guaranteed security that is registered or being registered
is required to file financial statements required by
Regulation S-X with respect to the guarantee or guaranteed
security, such financial statements may be omitted if the
issuer or guarantor is a consolidated subsidiary of the
parent company, the parent company’s consolidated financial
statements have been filed, and the conditions in paragraphs
(a)(1) and (2) of this section have been met:
(1) The guaranteed
security is debt or debt-like; and
(i) The parent company issues the security or
co-issues the security, jointly and severally, with
one or more of its consolidated subsidiaries; or
(ii) A consolidated subsidiary issues the security
or co-issues the security with one or more other
consolidated subsidiaries of the parent company, and
the security is guaranteed fully and unconditionally
by the parent company; and
(2) The parent company
provides the disclosures specified in § 210.13-01.
(b) For the purposes of this section and §
210.13-01:
(1) The “parent
company” is the entity that:
(i) Is an issuer or guarantor of the guaranteed
security;
(ii) Is, or as a result of the subject Securities
Act registration statement will be, an Exchange Act
reporting company; and
(iii) Consolidates each subsidiary issuer and/or
subsidiary guarantor of the guaranteed security in
its consolidated financial statements.
(2) A security is “debt
or debt-like” if it has the following characteristics:
(i) The issuer has a contractual obligation to pay
a fixed sum at a fixed time; and
(ii) Where the obligation to make such payments is
cumulative, a set amount of interest must be
paid.
Note 1 to paragraph
(b)(2). Neither the form of the security nor its
title will determine whether a security is debt or
debt-like. Instead, the substance of the obligation created
by the security will be determinative.
Note 2 to paragraph
(b)(2). The phrase “set amount of interest” is not
intended to mean “fixed amount of interest.” Floating and
adjustable rate securities, as well as indexed securities,
may meet the criteria specified in paragraph (b)(2)(ii) of
this section as long as the payment obligation is set in the
debt instrument and can be determined from objective indices
or other factors that are outside the discretion of the
obligor.
(3) A guarantee is
“full and unconditional,” if, when an issuer of a guaranteed
security has failed to make a scheduled payment, the
guarantor is obligated to make the scheduled payment
immediately and, if it does not, any holder of the
guaranteed security may immediately bring suit directly
against the guarantor for payment of all amounts due and
payable.
SEC Regulation S-X, Rule 3-16
§ 210.3-16 Financial
statements of affiliates whose securities collateralize
an issue registered or being registered.
The requirements of this section shall apply
to each registered security issued and outstanding before
January 4, 2021, unless the requirements of § 210.13-02
apply.
(a) For each of the registrant’s affiliates
whose securities constitute a substantial portion of the
collateral for any class of securities registered or being
registered, there shall be filed the financial statements
that would be required if the affiliate were a registrant
and required to file financial statements. However,
financial statements need not be filed pursuant to this
section for any person whose statements are otherwise
separately included in the filing on an individual basis or
on a basis consolidated with its subsidiaries.
(b) For the purposes of this section,
securities of a person shall be deemed to constitute a
substantial portion of collateral if the aggregate principal
amount, par value, or book value of the securities as
carried by the registrant, or the market value of such
securities, whichever is the greatest, equals 20 percent or
more of the principal amount of the secured class of
securities.
SEC Regulation S-X, Rule 13-01
§ 210.13-01 Guarantors
and issuers of guaranteed securities registered or being
registered.
(a) For each guaranteed security subject to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, and for each guaranteed security the offer and sale of
which is being registered under the Securities Act of 1933,
for which the registrant is the parent company (as that term
is defined in § 210.3-10(b)(1)) of one or more subsidiaries
that issue or guarantee the guaranteed security, provide the
following disclosures to the extent material:
(1) A description of the issuers and
guarantors of the guaranteed security;
(2) A description of the terms and
conditions of the guarantees, and how payments to holders of
the guaranteed security may be affected by the composition
of and relationships among the issuers, guarantors, and
subsidiaries of the parent company that are not issuers or
guarantors of the guaranteed security;
(3) A description of other factors that
may affect payments to holders of the guaranteed security,
such as contractual or statutory restrictions on dividends,
guarantee enforceability, or the rights of a noncontrolling
interest holder;
(4) Summarized financial information as
specified in § 210.1-02(bb)(1) of each issuer and guarantor
of the guaranteed security as follows, with an accompanying
note that briefly describes the basis of presentation:
(i) The summarized financial information of each
such issuer and guarantor consolidated in the parent
company’s consolidated financial statements may be
presented on a combined basis with the summarized
financial information of the parent company;
(ii) Intercompany balances and transactions between
issuers and guarantors whose summarized financial
information is presented on a combined basis shall
be eliminated;
(iii) The summarized financial information shall
exclude subsidiaries that are not issuers or
guarantors. An issuer’s or guarantor’s investment in
a subsidiary that is not an issuer or guarantor
shall not be presented. An issuer’s or guarantor’s
amounts due from, amounts due to, and transactions
with any of the following shall be presented in
separate line items:
(A) Subsidiaries that are not
issuers or guarantors; and
(B) Related parties;
(iv) If the information provided in response to the
requirements of this section (e.g., factors that may
affect payments to holders of the guaranteed
security) is applicable to one or more, but not all,
issuers and/or guarantors, separately disclose the
summarized financial information applicable to those
issuers and/or guarantors. In limited circumstances
(i.e., where the separate financial information
applicable to those issuers and/or guarantors can be
easily explained and understood), narrative
disclosure may be provided in lieu of the separate
summarized financial information otherwise required
by this paragraph (a)(4)(iv);
(v) Disclose this summarized financial information
as of and for the most recently ended fiscal year
and year-to-date interim period included in the
parent company’s consolidated financial statements;
and
(vi) Notwithstanding that a parent company may omit
this summarized financial information if not
material, it may also be omitted if one of the
following in paragraphs (a)(4)(vi)(A) through (D) of
this section is true and disclosed. However,
paragraph (a)(4)(vi)(A) does not apply if separate
disclosure of summarized financial information
applicable to one or more, but not all, issuers and/
or guarantors is required by paragraph (a)(4)(iv) of
this section. For the purposes of this section, a
finance subsidiary is a subsidiary that has no
assets or operations other than those related to the
issuance, administration and repayment of the
security being registered and any other securities
guaranteed by its parent company:
(A) The assets, liabilities
and results of operations of the combined issuers
and guarantors of the guaranteed security are not
materially different than corresponding amounts
presented in the consolidated financial statements
of the parent company;
(B) The combined issuers and
guarantors, excluding investments in subsidiaries
that are not issuers or guarantors, have no material
assets, liabilities or results of operations;
(C) The issuer is a finance
subsidiary of the parent company, the parent company
has fully and unconditionally guaranteed the
security, and no other subsidiary of the parent
company guarantees the security; or
(D) The issuer is a finance
subsidiary that co-issued the security, jointly and
severally, with the parent company, and no other
subsidiary of the parent company guarantees the
security;
(5) In a Securities Act registration
statement filed in connection with the offer and sale of the
guaranteed security, if the parent company acquired a
significant business after the date of the parent company’s
most recent balance sheet included in its consolidated
financial statements and the acquired business, one or more
of the acquired business’s subsidiaries, or the acquired
business and one or more of its subsidiaries are issuers or
guarantors of the guaranteed securities, disclose
pre-acquisition summarized financial information as
specified in paragraph (a)(4) of this section for each such
issuer or guarantor. The acquired business is significant if
it meets any of the conditions specified in the definition
of significant subsidiary in § 210.1-02(w), substituting 20
percent for 10 percent each place it appears therein, based
on a comparison of the most recent annual financial
statements of the acquired business and the parent company’s
most recent annual consolidated financial statements filed
at or prior to the date of acquisition. The determination of
whether a business has been acquired shall be made in
accordance with the guidance set forth in § 210.11-01(d).
Acquisitions of a group of related businesses shall be
treated as if they are a single business acquisition for
purposes of this comparison. The determination of whether a
group of businesses are related shall be made in a manner
consistent with § 210.3-05(a)(3);
(6) Any financial and narrative
information about each guarantor if the information would be
material for investors to evaluate the sufficiency of the
guarantee; and
(7) Sufficient information so as to make
the financial and non-financial information presented not
misleading.
(b) The parent company may elect to provide
the disclosures required by this section in a footnote to
its consolidated financial statements or alternatively, in
management’s discussion and analysis of financial condition
and results of operations described in § 229.303 (Item 303
of Regulation S-K) of this chapter. If not otherwise
included in the consolidated financial statements or in
management’s discussion and analysis of financial condition
and results of operations, the parent company must include
the disclosures in its prospectus immediately following
“Risk Factors,” if any, or otherwise, immediately following
pricing information described in § 229.105 (Item 105 of
Regulation S-K) of this chapter.
SEC Regulation S-X, Rule 13-02
§ 210.13-02 Affiliates
whose securities collateralize securities registered or
being registered.
The requirements of this section shall apply
to each security registered or being registered that is
issued on or after January 4, 2021, and to each registered
security issued and outstanding before January 4, 2021, for
which the registrant had prior to that date provided the
financial statements specified in § 210.3-16.
(a) For each security subject to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, and
for each security the offer and sale of which is being
registered under the Securities Act of 1933, that is
collateralized by a security of the registrant’s affiliate
or affiliates, provide the following disclosures to the
extent material:
(1) A description of the securities
pledged as collateral and the affiliates whose securities
are pledged as collateral;
(2) A description of the terms and
conditions of the collateral arrangement, including the
events or circumstances that would require delivery of the
collateral;
(3) A description of the trading market
for the affiliate’s security pledged as collateral or a
statement that there is no market;
(4) Summarized financial information as
specified in § 210.1-02(bb)(1) of each affiliate whose
securities are pledged as collateral as follows, with an
accompanying note that briefly describes the basis of presentation:
(i) The summarized financial information of each
such affiliate consolidated in the registrant’s
financial statements may be presented on a combined
basis;
(ii) Intercompany balances and transactions between
affiliates whose summarized financial information is
presented on a combined basis shall be
eliminated;
(iii) An affiliate’s amounts due from, amounts due
to, and transactions with any of the following shall
be presented in separate line items:
(A) The registrant;
(B) Any of the registrant’s
subsidiaries not included in the summarized
financial information of the affiliate(s); and
(C) Related parties;
(iv) If the information provided in response to the
requirements of this section (e.g., the trading
market for the affiliate’s security pledged as
collateral or a statement that there is no market)
is applicable to one or more, but not all,
affiliates, separately disclose the summarized
financial information applicable to those
affiliates. In limited circumstances (i.e., where
the separate financial information applicable to
those affiliates can be easily explained and
understood), narrative disclosure may be provided in
lieu of the separate summarized financial
information otherwise required by this paragraph
(a)(4)(iv);
(v) Disclose this summarized financial information
as of and for the most recently ended fiscal year
and year-to-date interim period included in the
registrant’s consolidated financial statements;
and
(vi) Notwithstanding that a registrant may omit
this summarized financial information if not
material, it may also be omitted if one of the
following in paragraph (a)(4)(vi)(A) or (B) of this
section is true and disclosed. However, paragraph
(a)(4)(vi)(A) does not apply if separate disclosure
of summarized financial information applicable to
one or more, but not all, affiliates is required by
paragraph (a)(4)(iv) of this section:
(A) The assets, liabilities
and results of operations of the combined affiliates
whose securities are pledged as collateral are not
materially different than the corresponding amounts
presented in the consolidated financial statements
of the registrant; or
(B) The combined affiliates
whose securities are pledged as collateral have no
material assets, liabilities or results of
operations;
(5) In a Securities Act registration
statement filed in connection with the offer and sale of the
collateralized security, if the registrant acquired a
significant business after the date of the registrant’s most
recent balance sheet included in its consolidated financial
statements and the acquired business, one or more of the
acquired business’s subsidiaries, or the acquired business
and one or more of its subsidiaries are affiliates whose
securities collateralize the registrant’s collateralized
security, disclose pre-acquisition summarized financial
information as specified in paragraph (a)(4) of this section
for each such affiliate. The acquired business is
significant if it meets any of the conditions specified in
the definition of significant subsidiary in § 210.1-02(w),
substituting 20 percent for 10 percent each place it appears
therein, based on a comparison of the most recent annual
financial statements of the acquired business and the
registrant’s most recent annual consolidated financial
statements filed at or prior to the date of acquisition. The
determination of whether a business has been acquired shall
be made in accordance with the guidance set forth in §
210.11-01(d). Acquisitions of a group of related businesses
shall be treated as if they are a single business
acquisition for purposes of this comparison. The
determination of whether a group of businesses are related
shall be made in a manner consistent with §
210.3-05(a)(3);
(6) Any financial and narrative
information about each such affiliate if the information
would be material for investors to evaluate the pledge of
the affiliate’s securities as collateral; and
(7) Sufficient information so as to make
the financial and non-financial information presented not
misleading.
(b) The registrant may elect to provide the
disclosures required by this section in a footnote to its
consolidated financial statements or alternatively, in
management’s discussion and analysis of financial condition
and results of operations described in § 229.303 (Item 303
of Regulation S-K) of this chapter. If not otherwise
included in the consolidated financial statements or in
management’s discussion and analysis of financial condition
and results of operations, the registrant must include the
disclosures in its prospectus immediately following “Risk
Factors,” if any, or otherwise, immediately following
pricing information described in § 229.105 (Item 105 of
Regulation S-K) of this chapter.
SEC Regulation S-K, Item 601
§ 229.601 (Item 601) Exhibits.
(b)(22) Subsidiary guarantors and issuers of guaranteed
securities and affiliates whose securities collateralize
securities of the registrant. List each of the
entities in paragraphs (b)(22)(i) and (ii) of this section
under an appropriately captioned heading that identifies the
associated securities. An entity need not be listed more
than once so long as its role as issuer, co-issuer, or
guarantor of a guaranteed security and/or as affiliate whose
security is pledged as collateral for a registrant’s
security is clearly indicated with respect to each
applicable security:
(i) For a registrant that is the parent
company (as that term is defined in § 210.3-10(b)(1) of this
chapter) and subject to § 210.13-01 of this chapter, each of
the registrant’s subsidiaries that is a guarantor, issuer,
or co-issuer of the guaranteed security subject to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, or
the offer and sale of which is being registered under the
Securities Act of 1933; and
(ii) For a registrant that is subject to
§ 210.13-02 of this chapter, each of the registrant’s
affiliates whose security is pledged as collateral for the
registrant’s security subject to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, or the offer
and sale of which is being registered under the Securities
Act of 1933. For each affiliate, also identify the security
or securities pledged as collateral.