Many privately or family owned entities may believe access to U.S. capital markets is foreclosed due to burdensome and cost prohibitive regulatory requirements. With interest rates at historical lows and a robust supply of dollars available to borrow, many privately owned entities are selling so called high yield notes in Rule 144A for life offerings. These notes are sold in underwritten private offerings only to qualified institutional buyers (“QIBs”) with no covenant made by the issuer to exchange them in a future exchange offer for notes registered under the Securities Act of 1933, as amended (the “1933 Act”). Rule 144A for life offerings allow private entities to enjoy many of the benefits that accrue to publicly listed entities by borrowing funds through U.S. capital market offerings without subjecting the private entity to making periodic filings with the U.S. Securities and Exchange Commission (“SEC”) or having its top executive officers attest quarterly to the adequacy of disclosure controls or financial statement internal controls.

The table below sets forth a summary of the substantive differences between indebtedness incurred in a Rule 144A for life offering and in a traditional bank term loan.

Originally Published in Law360 on April 4, 2013.