The Code of Conduct Bondholders’ Representative – Issuer 2020 (“Code of Conduct”) and the Bondholders’ Representative – Issuer Master Agreement 2020 (“Master Agreement”) are an initiative of Trust in Debt (Stichting Obligatiehoudersbelangen). Trust in Debt has been incorporated in 2011 with the goal of acting as a trustee of bond loans, representing the bondholders by protecting their collective interests  and exercising the rights attached to these bonds. Trust in Debt represents the bondholders of multiple issuers.

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[1].

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.

Background

This Code of Conduct and the Master Agreement are to a large extent based on the United States Trust Indenture Act of 1939[2]. This act had been introduced because the Securities and Exchange Commission (the supervisory authority of the US securities markets)[3] 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;

[1] See article 53 of the Exemption Regulation Wft (Vrijstellingsregeling Wft).

[2] 15 U.S.C. §§ 77aaa-77bbbb; vindplaats: http://uscode.house.gov. See section 302(a) in particular.

[3] See www.sec.gov

  • 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[4]) came into force. This act was repealed in 1981[5].

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.

[4] Official Gazette 1934, 279.

[5] 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.

Final remarks

The financial scandals and crises that occurred in the 1930’s led to the introduction of legislation regarding issuers and their trustees. However, financial scandals and crises are recurring phenomena. The Master Agreement forms the contemporary contractual equivalent of the Trust Indenture Act. Trust in Debt expects that this Code of Conduct and the Master Agreement, like the Trust Indenture Act, will stand the test of time.

If you want to use the Code of Conduct and the Master Agreement to document the agreement between an issuer and Trust in Debt or another bondholders’ representative then please send an email to info@obligatiehoudersbelangen.org

 

The copyright with respect to the “Code of Conduct  Bondholders’ Representative –  Issuer 2020”, the “Bondholders’ Representative – Issuer Master Agreement 2020” (including the automatic rating mechanism) and the “Collateral Annex to the Bondholders’ Representative – Issuer Master Agreement 2020” belongs to Trust in Debt (Stichting Obligatiehoudersbelangen). Except for the exemptions pursuant to the Copyright Act 1912 (Auteurswet 1912), the abovementioned documents or any part thereof may not be reproduced, published and/or saved on any medium or in any database without the prior written consent of Trust in Debt.

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Contact

Trust in Debt (Stichting Obligatiehoudersbelangen)

Burgemeester Haspelslaan 172

1181 NE Amstelveen

The Netherlands

E info@obligatiehoudersbelangen.org
P +31 636 004 130
Chamber of Commerce registration number: 53177770

© 2020 Stichting Obligatiehoudersbelangen. All rights reserved | Gemaakt door Reinier Mathijsen