2.2 Eligibility Conditions for Providing Alternative Disclosures
Rule 3-10 allows registrants to provide alternative disclosures, as
outlined in Rule 13-01, in lieu of separate financial statements of subsidiary
issuers and guarantors if the following eligibility conditions are met:
- The security must be issued or guaranteed by a parent company.
- All issuers and guarantors must be consolidated subsidiaries of the parent company.
- The security must be “debt or debt-like.“
- The security must have one of two eligible structures.
The eligibility conditions are discussed in greater detail below; the content of the
alternative disclosures is discussed in Section
2.3.
2.2.1 Parent Company Financial Statements Condition
As a starting point for eligibility, the parent company must (1) be an issuer or
guarantor of the debt security, (2) be an Exchange Act reporting company or be
in the process of filing a registration statement under the Securities Act, and
(3) have filed consolidated financial statements. The alternative disclosures
outlined in Rule 13-01 are predicated on the understanding that investors in
guaranteed debt securities rely primarily on the consolidated financial
statements of the parent company in making investment decisions; therefore,
these conditions ensure that the parent company will be providing consolidated
financial statements in accordance with the Exchange Act as part of the parent’s
own ongoing reporting requirements.
Example 2-1
Registrant A is an Exchange Act reporting company that
files consolidated financial statements on Forms 10-K
and 10-Q. Issuer B, a subsidiary of A, issues debt
securities that are guaranteed by A. Registrant A
qualifies for the parent company condition because it
(1) is a guarantor of the securities, (2) is an Exchange
Act reporting company, and (3) files consolidated
financial statements.
Example 2-2
Assume the same facts as in the example
above, except that Registrant A does not guarantee the
debt securities of Issuer B. In this case, the parent
company condition is not met and B may not rely on the
alternative disclosures outlined in Rule 13-01.
2.2.2 Consolidated Subsidiary Condition
Another condition under Rule 3-10 is that the subsidiary
issuer(s) or guarantor(s) must be a consolidated subsidiary of the parent
company under the relevant accounting standards. In making this assessment,
domestic registrants should consider ASC 810. If ASC 810 requires the parent
company to consolidate the issuer or guarantor, the consolidated subsidiary
condition is met. Whether a guarantor or issuer is consolidated depends solely
on the requirements of ASC 810 and not the legal form or ownership interest. For
example, issuers and guarantors need not be 100 percent owned by the parent and
may have noncontrolling interests. Alternatively, there may be circumstances in
which a company that is 100 percent owned is not consolidated (e.g., the
subsidiary is in bankruptcy or subject to foreign exchange restrictions). The
consolidated subsidiary condition is important because the alternative
disclosures outlined in Rule 13-01 are predicated on the understanding that
investors in guaranteed debt securities rely primarily on the consolidated
financial statements of the parent company in making investment decisions. If a
subsidiary guarantor or subsidiary issuer is not consolidated into the parent
company’s financial statements, such financial statements may be less relevant
to the evaluation of the guarantee.
The SEC has granted a limited grandfather exception to the
consolidated subsidiary condition for trust preferred securities issued and
outstanding before March 2, 2020. These instruments were often issued by
special-purpose entities sponsored and guaranteed by a bank holding company.
While such entities are 100 percent owned by bank holding companies, they may
not be consolidated in accordance with ASC 810. On November 10, 2020, the SEC
staff released a no-action letter stating that issuers of
certain trust-preferred securities may continue to omit their separate financial
statements despite failing to meet the consolidated subsidiary condition as long
as certain specific criteria are met. See paragraph 2520.4 of the SEC Financial
Reporting Manual (FRM) for more information.
2.2.3 Debt or Debt-Like Condition
Under Rule 3-10, the guaranteed security must also be debt or
debt-like. The substance, rather than the form, of a security’s obligation
determines whether it is debt or debt-like. This condition is met if the
guaranteed security 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.
The term “set amount of interest” is not intended to imply that
the obligation must be fixed. Floating, adjustable, or indexed securities will
meet that condition as long as the amount of interest can be calculated on the
basis of objective measures (e.g., the secured overnight financing rate) or
other factors that are not determined by the issuer. In addition to fixed and
variable-rate debt, other securities similar to debt may also qualify as being
debt or debt-like (e.g., preferred securities that have payments terms
substantially the same as debt). The determination of whether a security is debt
or debt-like under Rule 3-10 may differ from the determination of whether the
security should be classified as debt or equity in accordance with U.S. GAAP.
Since this is a legal determination, a company should consider consulting with
SEC legal counsel to determine whether securities are debt or debt-like.
2.2.4 Eligible Issuer and Guarantor Structures Condition
Finally, Rule 3-10 requires the guarantor structure to meet one
of the following eligibility requirements:
- The parent company issues or co-issues (on a joint and several basis with one or more of its consolidated subsidiaries) securities, and any guarantees are provided by one or more consolidated subsidiaries.
- A consolidated subsidiary issues or co-issues (with one or more other consolidated subsidiaries of the parent company) the securities, and the securities are fully and unconditionally guaranteed by the parent company.
The first eligible structure is one in which the parent company
issues or co-issues a debt security with one or more consolidated subsidiaries.
Any co-issuance must be on a joint and several basis (as described further
below). Often, one or more consolidated subsidiaries may guarantee the debt
security.
Example 2-3
Registrant A, an Exchange Act reporting
company, issues debt securities guaranteed by three of
its consolidated subsidiaries. This structure qualifies
for alternative disclosure under Rule 3-10 because the
parent company is issuing debt securities guaranteed by
consolidated subsidiaries.
Example 2-4
Registrant A, an Exchange Act reporting company,
co-issues debt securities with consolidated Subsidiary B
on a joint and several basis. Subsequently, B files for
bankruptcy and A determines that it should no longer
consolidate B. Upon bankruptcy, this structure no longer
qualifies for alternative disclosure under Rule 3-10
because the parent company no longer consolidates the
co-issuer of the debt.
Example 2-5
Registrant A, an Exchange Act reporting
company, co-issues debt securities with consolidated
Subsidiary B on a joint and several basis, and such
securities are guaranteed by consolidated Subsidiary C.
This structure qualifies for alternative disclosure
under Rule 3-10 because the parent company is co-issuing
debt securities with a consolidated subsidiary and the
debt securities are guaranteed by a consolidated
subsidiary.
The second eligible structure is one in which a consolidated
subsidiary of the parent company issues a debt security guaranteed by the parent
company on a full and unconditional basis. The debt security may also be
guaranteed by other consolidated subsidiaries of the parent company; the
guarantees by such subsidiaries may be, but are not required to be, full and
unconditional. Note that a guarantee is full and unconditional if (1) the
guarantor has an immediate obligation to make a scheduled payment that the
issuer of the guaranteed security fails to make and (2) investors in the
guaranteed debt security could bring legal action against the guarantor for
payment of all amounts due.
Example 2-6
Issuer B, an equity method investee of Registrant A, an
Exchange Act reporting company, issues debt securities
that are fully and unconditionally guaranteed by A. This
structure does not qualify for alternative disclosure
under Rule 3-10 because the issuer is not a consolidated
subsidiary of the parent company.
Example 2-7
Issuer B, which is a consolidated subsidiary of
Registrant A, an Exchange Act reporting company, issues
debt securities that are fully and unconditionally
guaranteed by A and also guaranteed by three other
consolidated subsidiaries of A. This structure qualifies
for alternative disclosure under Rule 3-10 because
(1) the issuer is a consolidated subsidiary of the
parent company, (2) the parent company has fully and
unconditionally guaranteed the securities, and (3) the
other remaining guarantors are consolidated subsidiaries
of A.
Example 2-8
Issuer B and Issuer C, which are both consolidated
subsidiaries of Registrant A, an Exchange Act reporting
company, co-issue debt securities that are fully and
unconditionally guaranteed by A. This structure
qualifies for alternative disclosure under Rule 3-10
because the issuers are consolidated subsidiaries of the
parent company and the parent company has fully and
unconditionally guaranteed the securities.