Lenders generally also consider the compensations granted by the seller in the acquisition agreement. If, at the end of the acquisition, it is established that the seller committed a misrepresentation or, worse, fraud or other misconduct, such compensation could impair the buyer`s ability to recover from the seller. If misrepresuring or misbehaviour results in lenders closing the borrower`s assets, lenders could inherit compensation if the borrower`s rights under the acquisition contract are part of the guarantees. Acquisition agreements generally contain anti-attribution and transfer provisions. It is important that these provisions expressly allow lenders to take a right to pawn on the sale contract with private equity buyers, “in general, in this world, you do not have a financing condition for the agreement to make the sellers comfortable,” Brant said, meaning that the conclusion of the agreement does not depend on the buyer`s ability to secure the financing. Typically, a debt financing letter expires a few days after a merger agreement expires. The provision of the executed acquisition contract is a precondition for lenders` commitment to finance the loans. As explained in more detail below, lenders sometimes accept, as a case, a near-final acquisition contract project, coupled with an agreement reached by the buyer that there will be no substantial changes without the prior approval of the lenders. The terms of the acquisition agreement are important to lenders on a number of points, beyond understanding the structure and activity of the borrower after the closing of the transaction. Lenders also regularly require the inclusion of certain provisions in acquisition contracts. According to four lawyers, the splitting of high-level jurisdictions that regulate merger agreements and obligations could pose a challenge to the merging parties and lenders who are handling ongoing cases amid the continuing disruption of the coronavirus pandemic. Acquisition contracts involve a mutual contract almost everywhere, under which, once signed, the parties will do everything in their power to complete the transaction. In the case of measures necessary to complete the financing of the acquisition by the buyer, these appropriate efforts have become very important and detailed for both buyers and sellers, especially since the end of the 2008 financial crisis.
As with all secured financing, acquisition financing lenders need proof that their rights to the borrower`s wealth are sophisticated and enforceable, preferably as a precondition for initial financing under the loan agreement. However, the guarantee of the perfection of pawn rights is often highly technical and can take time depending on the nature and situation of the borrower and the specific legal requirements for perfection. The tedious nature of forgetting collateral increases the risk (for the borrower and seller) of delaying the closure until the completion of the pawning process, and at a time of financing and security of the acquisition, a premium. Third, lenders insisted that loopholes in credit documentation be filled, allowing borrowers to transfer securities to the lenders` debtor group through highly structured transactions. In particular, this has been highlighted by fully subsidiary provisions allowing borrowers to qualify a subsidiary not to be subject to a credit contract. For credit contracts in 2019, particularly for lower-rated borrowers, these transactions have been limited by the inclusion provisions. Linda L. Curtis and Andrew Cheng are partners in the Global Finance practice group at Gibson, Dunn and Crutcher LLP, Los Angeles. Linda Curtis focuses on all aspects of corporate finance, with a focus in recent years on financing acquisitions.