This Code of Conduct and the Master Agreement are meant to better protect and promote the collective interests of holders of bonds, irrespective of whether they are traded on a regulated exchange. In the Netherlands many companies and organisations issue bonds. These bonds are issued for a wide range of purposes: strengthening working capital, mergers and acquisitions, group financing, real estate development and so on.
Sometimes bonds are issued based on a prospectus that has been approved by the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten) but more often they are issued further to an exemption from the obligation to publish a prospectus.
With the Master Agreement Trust in Debt aims to create uniformity in the terms and conditions agreed between issuers and their bondholders’ representatives. This Code of Conduct forms the basis and the Master Agreement the framework thereof. The issuer and the bondholders’ representative can to some extent deviate from this framework and make certain elections with respect to certain issues addressed in the Master Agreement. The issuer and the bondholders’ representative specify those deviations and elections in the annex to the Master Agreement. The Master Agreement forms part of the prospectus. This way, a flexible system of terms and conditions is generated.
This Code of Conduct and the Master Agreement are to a large extent based on the United States Trust Indenture Act of 1939. This act had been introduced because the Securities and Exchange Commission (the supervisory authority of the US securities markets) deemed the national public interest as well as the interest of investors in bonds and similar debt instruments are adversely affected when:
- the issuer fails to provide a trustee to protect and enforce the rights and to represent the interests of such investors;
- the trustee does not have adequate rights and powers relating to the protection and enforcement of the rights of such investors;
 See article 53 of the Exemption Regulation Wft (Vrijstellingsregeling Wft).
- the trustee does not have resources commensurate with its responsibilities or has any relationship to the issuer or any underwriter that involves a material conflict with the interests of such investors;
- the issuer is not obligated to provide the trustee with adequate current financial and other relevant information or when the communication of such information to such investors is impeded by the fact that information as to the names and addresses of such investors is not available to the trustee and to such investors;
- the agreement between the issuer and the trustee (indenture) contains provisions which are misleading or deceptive or full disclosure is not made to prospective investors of the effect of important indenture provisions; or
- the investors are unable to participate in the preparation of the indenture.
In the Netherlands there has also been legislation with respect to the rights of bondholders. In 1934 the Act containing provisions regarding the meeting of holders of bearer bonds (Wet houdende voorschriften voor de vergadering van houders van schuldbrieven aan toonder) came into force. This act was repealed in 1981.
Therefore, the Master Agreement is a contractual replication of certain statutory concepts.
Automatic rating mechanism
The Master Agreement is – to the best of knowledge of Trust in Debt – the first agreement in the world with a built-in rating mechanism. This way, the relationship between the issuer and the bondholders’ representative is automatically given a rating. The rating has as a purpose to give (potential) investors in the bonds a sense of the extent to which the bondholders’ representative can and will promote and protect their collective interests. The Master Agreement is set up in such a way that if the parties make no change then the rating will be 100. If the parties make changes that (could) negatively affect these interests then the rating will go down. If the parties make changes that (could) positively affect these interests then the rating will go up.
 Official Gazette 1934, 279.
 A couple of year ago, the Ministry of Justice and Security has worked on a draft law regarding the representation of bondholders but this work has stopped.