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By: Ari B. Blaut and Daniel R. Loeser, Sullivan & Cromwell LLP
The U.S. debt capital markets are an important source of capital for companies that borrow money to finance their businesses. Companies borrow money for a variety of reasons, from financing day-to-day operations and managing seasonal fluctuations in working capital, to funding acquisitions or paying dividends. Most companies obtain debt through loans from banks and other institutional lenders or by issuing debt securities in the capital markets.
THIS ARTICLE PROVIDES A HIGH-LEVEL INTRODUCTION TO debt securities commonly issued by companies in the U.S. debt capital markets and discusses the offering process and key characteristics of different types of transactions. Counsel should be aware that there are a significant number of other legal terms and issues relevant to issuers, underwriters, and investors that are outside the scope of this article. In addition, different transactions may give rise to different issues based on the facts and circumstances at hand.
A debt security is a tradable instrument evidencing the obligations of one party (the issuer) to repay money to the holders of the security. U.S. corporate debt securities are often referred to as notes or bonds. Key characteristics of debt securities include the following:
Engaging the Underwriters and Initial Purchasers
Issuers typically engage one or more banks early in the process to act as underwriters for the offering and to advise on pricing and other aspects of the offering. In an unregistered offering, the lead banks are referred to as initial purchasers in marketing documentation, rather than as underwriters. The underwriters are closely involved in most aspects of the offering, including the strategy for marketing the debt, the preparation of the disclosure documents and other marketing materials, conducting due diligence, organizing road shows, and negotiating the legal documentation. In selecting the lead bank, issuers take into account several factors including:
In cases where multiple underwriters are engaged, the underwriter with primary responsibility for the offering is often referred to as the left lead, after the customary practice in which the lead underwriter’s name is listed on the left-hand side of marketing materials for the offering.
Registered vs. Unregistered Offerings
The steps involved in conducting an offering of debt securities differ depending on whether the transaction is being done on a registered basis or on an unregistered basis in reliance on an exemption from the securities laws.
In a registered offering, as is the case for equity offerings, the issuer must draft and file a registration statement and prospectus for the offering with the SEC, which must be declared effective (or be deemed effective pursuant to SEC rules) before the offering can be consummated. The registration statement includes disclosures regarding the issuer’s business as well as a detailed description of the terms of the debt securities being offered.
In an unregistered offering, the issuer typically prepares an offering memorandum to be shared with potential investors. Although unregistered offerings are not subject to many of the specific disclosure requirements contained in the Securities Act applicable to registered deals, the anti-fraud provisions set forth in Rule 10b-5 under the Securities Exchange Act apply to all offerings of securities, whether registered or unregistered. Rule 10b-5 forbids issuers and underwriters from making any untrue statement of a material fact or omitting to state a material fact necessary in order to make statements made not misleading in light of the circumstances in which they were made in connection with the purchase or sale of any security. In light of this broad requirement and to protect against potential liability arising from potential lawsuits by noteholders, offering memoranda in unregistered offerings often look to SEC disclosure requirements for registered offerings as a guide post and include disclosures similar in scope to what would be required for a registered offering. That said, the appropriate scope of disclosure in an unregistered offering requires careful legal analysis and consideration of the circumstances of the offering, including the nature of the issuer’s business, the terms of the securities, and the number of the investors and their degree of financial sophistication.
In some unregistered offerings, investors receive registration rights with respect to the debt securities, pursuant to which the issuer agrees to register resales of the debt securities by the holders within a certain time period after issuance or if particular conditions are met or, alternatively, to exchange the initial securities with new securities issued in a registered offering with otherwise identical terms (referred to as an A/B exchange offer). Other offerings are marketed on a 144A-for-life basis and are never registered.
From an issuer’s perspective, the decision whether to conduct an offering on a registered or unregistered basis depends on several factors, including:
Most notes are issued pursuant to an indenture that sets forth the key terms governing the notes, including payment terms, redemption provisions, covenants, and events of default. Individual noteholders are not parties to the indenture and can only exercise their rights with respect to the notes collectively through the trustee, a financial institution appointed to act on behalf of the noteholders. These notes themselves are generally issued in registered form (as opposed to bearer form) as global notes and are generally cleared and settled using book-entry clearing systems, most commonly the Depository Trust Company (DTC).
Investment Grade vs. High-Yield Securities
High-yield bonds are debt securities with non-investment grade ratings, that is, ratings below BBB-/Baa3. There are several important differences between high-yield and investment grade bonds arising from the lower risk of default by investment grade issuers, though the covenant package and terms vary as an issuer moves up and down the credit spectrum. These include:
Medium Term Notes
Medium term note programs (MTN programs) are a form of debt financing used by large companies with an ongoing need to raise additional capital in the debt capital markets.
To establish an MTN program, issuers file a shelf registration statement with the SEC to permit delayed and continuous registered offerings. They also enter into master legal documents governing the program, including agreements with one or more banks to act as selling agents or dealers under the program. The master documents provide for flexibility to issue a wide variety of debt securities with different terms.
Once an MTN program has been established initially, issuers can complete offerings with minimal new documentation, usually limited to a prospectus supplement indicating the issue price, interest rate, amount, maturity, and other terms specific to the offering. This significantly reduces the amount of time and expense required to launch and complete a new offering and enables issuers to react more quickly to favorable market conditions.
Most MTNs have a maturity of two to five years, though there is no legal requirement that the notes have medium terms, and it is not uncommon for issuers to issue short or long-term notes under MTN programs. MTNs usually carry an investment grade rating.
A convertible bond is a hybrid debt security that provides the holder, and sometimes the company, with the option to convert the debt security into another security of the issuer— typically common equity shares—after a fixed date or upon certain conditions being met at a specified conversion price. Until converted, a convertible bond behaves like a typical debt security.
Convertible bonds usually include anti-dilution provisions, pursuant to which the conversion price is automatically adjusted in order to preserve the value of the conversion option in the event of new equity issuances, stock splits, mergers, or other transactions affecting the equity of the issuer.
Convertible bonds can be an attractive financing tool for emerging companies or companies with high growth potential, because they allow them to obtain debt financing at a lower interest rate than would otherwise be available (due to the imbedded value of the option) while delaying the dilutive effect on the issuer’s common equity. Technology and biotechnology companies are frequent convertible bond issuers.
However, the hybrid debt/equity nature of convertible bonds introduces additional legal, tax, and accounting complexity. In addition, many convertible bonds issued in recent years can only be called by the issuer if certain market price conditions are satisfied, which can create difficulties in structuring a sale or merger involving the issuer.
Commercial paper is a short-term, unsecured debt instrument used by large highly rated investment grade issuers. Commercial paper has a maturity ranging from two days to 270 days, with most maturing between five and 45 days.
At maturity, issuers typically either pay the commercial paper from cash on hand or roll the paper by issuing new commercial paper and using the proceeds to repay the paper that has come due. Due to its short maturity, commercial paper is only a viable financing tool for highly creditworthy companies that are confident of being able to sell commercial paper at attractive rates on a continuous basis. These qualities make commercial paper an attractive and relatively low-risk investment for certain institutional investors, such as money market mutual funds, and as a result commercial paper tends to be less expensive than other forms of debt financing, such as a bank credit facility. These investors typically hold commercial paper for its entire term.
Commercial paper is almost always issued on an unregistered basis pursuant to an exemption from registration. The most commonly relied upon exemptions are Sections 3(a)(3) and 4(a)(2) of the Securities Act. Section 3(a)(3) of the Securities Act provides an exemption from registration for debt securities with a maturity of nine months or less, the proceeds of which are used to finance current transactions. Issuers must take steps to ensure that the proceeds from commercial paper sold under this exemption are only used to finance working capital and other current transactions, such as paying operating expenses. SEC guidance has established other requirements for commercial paper issued pursuant to this exemption, including that the paper must be of prime quality and may not be of type ordinarily purchased by the public. In addition, the commercial paper must be eligible for discounting by the Federal Reserve Banks.
Companies typically issue commercial paper through one or more banks referred to as dealers. Similar to the role of an underwriter in a registered securities transaction, dealers purchase the commercial paper from issuers and immediately resell it to investors. The issuer also typically appoints a third-party financial institution, usually a trust company or bank, to act as issuing and paying agent, which performs functions similar to those of a trustee under a bond indenture, including processing payments and coordinating clearing and settlement with DTC.
Like MTNs, commercial paper is typically issued on an ongoing basis pursuant to a pre-established program. The documentation for a commercial paper program is typically negotiated by the issuer and the lead dealer and include an offering circular, one or more dealer agreements, and an issuing and paying agent agreement. Given the high credit quality and short maturity of commercial paper, terms are relatively standardized compared to other corporate debt securities and are not heavily negotiated.
Ari B. Blaut is a partner in Sullivan & Cromwell’s Corporate and Finance Group. Ari maintains a broad corporate practice advising clients on a wide range of financing transactions, including bank financings, high yield bond issuances, “PIPE” transactions, debt restructurings, liability management, creditor representations, and joint ventures. Ari has particular expertise in leveraged finance, acquisition finance, and strategic credit transactions. Ari regularly acts for clients in connection with arranging committed debt financing. Daniel R. Loeser is an associate in the firm’s leveraged finance and restructuring group. Daniel has broad experience advising both borrowers and lenders in a wide range of financing transactions, including acquisition financings and other strategic credit situations.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Capital Markets & Corporate Governance > Debt Securities Offerings > Rule 144A/ Regulation S Debt Offerings > Practice Notes
For additional information on various types of debt transactions, see
> MARKET TRENDS 2017/18: INVESTMENT GRADE DEBT OFFERINGS
> MARKET TRENDS 2017/18: HIGH YIELD DEBT OFFERINGS
> MARKET TRENDS 2017/18: CONVERTIBLE BOND OFFERINGS
> MARKET TRENDS 2017/18: MEDIUM-TERM NOTE PROGRAMS
> MARKET TRENDS 2017/18: SOVEREIGN BONDS
RESEARCH PATH: Capital Markets & Corporate Governance > Trends and Insights > Practice Notes
For further information on debt securities, see
> DEBT FINANCE: SYNDICATED LOANS, DEBT SECURITIES, AND MEZZANINE LOANS
For an overview of international debt transactions, see
> DEBT CAPITAL MARKETS IN INTERNATIONAL JURISDICTIONS
For a discussion of medium term notes, see
> MEDIUM-TERM NOTE (MTN) PROGRAMS
RESEARCH PATH: Capital Markets & Corporate Governance > Debt Securities Offerings > MediumTerm Note Programs > Practice Notes
For an explanation of the role of underwriters in and the regulations impacting registered securities offerings, see
> UNDERWRITING REGISTERED SECURITIES OFFERINGS AND REGISTERED OFFERINGS: APPLICABLE LAWS, RULES, AND REGULATIONS
RESEARCH PATH: Capital Markets & Corporate Governance > IPOs > Conducting an IPO > Practice Notes
For guidance on managing a private or unregistered offering of securities, see
> PRIVATE OFFERING MANAGEMENT
RESEARCH PATH: Capital Markets & Corporate Governance > Private Offerings > Private Placements > Practice Notes
For an exploration on the special considerations that are applicable to offerings involving convertible bonds, see
> CONVERTIBLE DEBT SECURITIES
For more information on the different types of commercial paper programs, see
> COMMERCIAL PAPER PROGRAMS
RESEARCH PATH: Capital Markets & Corporate Governance > Debt Securities Offerings > Exempt Securities > Practice Notes