On the Radar
SEC Reporting Considerations for Guarantees and
Collateralizations
SEC registrants may issue a variety of securities to finance their
operations. In certain cases, a registrant may offer credit enhancement arrangements
under which (1) subsidiaries of the registrant guarantee or co-issue debt or
debt-like securities or (2) the registrant pledges the securities of its affiliates
as collateral. In addition, for various reasons, a subsidiary of the registrant
(rather than the registrant) may issue debt or debt-like securities. While these
structures or credit enhancement arrangements may be beneficial from a
cost-of-capital perspective, registrants should consider the SEC reporting
implications under SEC Regulation S-X, Rules 3-10, 3-16, 13-01, and 13-02,1 and related complexities.
Guarantees of debt or debt-like
securities that are registered under the Securities Act of 1933 are considered
securities themselves under that legislation. Therefore, such guarantees, in
addition to offerings of the guaranteed debt or debt-like securities, must be
registered with the SEC unless they are exempt from registration. Once a company
registers them, an SEC reporting obligation is established for each subsidiary
issuer or guarantor under which the following (not all-inclusive) must be provided
separately:
- Annual financial statements prepared in accordance with applicable accounting standards and audited in accordance with PCAOB standards.
- An annual assessment of internal control over financial reporting.
- Quarterly reporting of condensed financial information.
- MD&A.
Given how burdensome these
requirements can be, the SEC typically permits registrants to provide alternative
nonfinancial and financial disclosures as follows in their financial statements or
MD&A as a form of relief in certain circumstances:
Nonfinancial Disclosures
- A description of the issuers and guarantors.
- The terms and conditions of the guarantees, including whether a subsidiary guarantee is not full and unconditional or joint and several.
- Factors that may affect payments to holders of the guaranteed securities,
including, but not limited to:
- The structure of and relationship between issuers, guarantors, and nonguarantors.
- Restrictions on dividends.
- Limitations on enforceability of the guarantees.
- The rights of noncontrolling interests.
Financial Disclosures
Summarized financial information of
the issuer(s) and guarantor(s) consisting of the following line items, together with
a brief description of the basis of presentation:
- Current and noncurrent assets.
- Current and noncurrent liabilities.
- Redeemable preferred stock (if applicable).
- Noncontrolling interests (if applicable).
- Net sales or gross revenues.
- Gross profit (or costs and expenses related to net sales or gross revenues).
- Income (loss) from continuing operations.
- Net income (loss).
- Net income (loss) attributable to the entity.
It is significantly less costly and
burdensome for a registrant to provide these alternative disclosures than comply
with separate SEC reporting obligations for each subsidiary issuer and guarantor.
Thus, before issuing securities, a registrant should determine whether it qualifies
for such relief on the basis of the contemplated legal structure and consult with
SEC legal counsel as appropriate. A registrant is eligible to provide alternative
disclosures if its securities are issued or fully and unconditionally guaranteed by
a parent company registrant, all issuers and guarantors are consolidated
subsidiaries of the parent company, the securities are debt or debt-like, and one of
the following issuer and guarantor structures is used:
- The parent company registrant 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. The diagram below illustrates an example of this eligible
structure.
- A consolidated subsidiary issues (or co-issues with one or
more other consolidated subsidiaries of the parent company registrant) the
securities, and the securities are fully and unconditionally guaranteed by
the registrant/parent company. The diagram below illustrates an example of
this eligible structure.
A registrant whose debt or debt-like securities meet these
requirements may provide alternative disclosures in lieu of separate financial
statements for the subsidiary issuer(s) or guarantor(s). Note that while such
alternative disclosure requirements apply only to debt or debt-like securities that
have these features and are registered under the Securities Act of 1933, investors
in private placement debt securities with similar guarantee structures may expect
companies to disclose similar information.
A registrant that issues securities that are collateralized by the
securities of an affiliate (generally, the affiliate’s equity securities) must also
provide certain financial and nonfinancial disclosures about the affiliates whose
securities collateralize the registrant’s securities. This includes summarized
financial information about such affiliates and certain other nonfinancial
disclosures.
For a comprehensive discussion of the
disclosure requirements for both guaranteed and
collateralized securities, see Deloitte’s Roadmap SEC Reporting
Considerations for Guarantees and
Collateralizations.
Contacts
|
John Wilde
Audit &
Assurance
Partner
Deloitte &
Touche LLP
+1 415 783
6613
|
For information about Deloitte’s
SEC service offerings related to guarantees and collateralizations, please
contact:
|
Matt Burley
Audit &
Assurance
Partner
Deloitte &
Touche LLP
+1 720 264
4866
|
Footnotes
1
On March 2, 2020, the SEC issued a final
rule that revised the disclosure requirements for
certain registered securities under Regulation S-X, Rules 3-10 and 3-16, and
introduced Regulation S-X, Rules 13-01 and 13-02. The requirements are based
on the premise that investors in guaranteed debt or collateralized
securities rely on the consolidated financial statements of the registrant
as their primary source of financial information.