U.S. loan contracts generally allow the borrower to purchase loans from all lenders in the form of a reverse “Dutch auction” or similar procedure. Participating lenders are reimbursed at the price indicated in the offer and the repurchase is recorded in the form of an advance or transfer. Many loan contracts also allow for credit buybacks through non-proportional purchases in the open market. These purchases are negotiated directly with individual lenders and executed by some form of disposal. Unlike loans purchased by the borrower (which must be cancelled), loans acquired by sponsors or other related companies that are not subsidiaries of the borrower may be pending. Loan contracts often limit the amount that sponsors and related companies may hold, and also limit the rights of these sponsors or associated companies (which are not good faith debt funds) when voting on repurchased loans. Much has been done about the influence of US conditions on European transactions and, in particular, on the constant migration of American concepts to English legal constructions, resulting from the imbalance between supply and demand in the debt credit market and the knowledge of market conditions by sponsors (and their advisers). Concepts such as covenant-lite and covenant-loose are now regular features of foreign financing in Europe, where four maintenance pacts were once considered the norm.
The application and importance of inter-secretary agreements are also another differentiator between the two regimes. In the United States, inter-creditor agreements are not used in all agreements. Instead, they are most often used in first/second link agreements and split collateral agreements to create contractual subordination in terms of security (but no payment, although it is possible to accept payment settlement) and, unlike European transactions, do not include other groups of secured creditors (such as speculative counterparties and cash management providers) as parties. U.S. borrowers are generally required to overpay for long-term loans under their loan contracts, with the net proceeds from certain asset sales, debts that cannot be incurred under the current loan agreement and, in some cases, increasingly, shares of shares to third parties. If the agreement is for term loans B, as noted above, there will be a cash flow surplus, and the percentage of excess cash flow that must be used for the down payment of these long-term loans will decrease with decreasing borrowing capital. Asset advance provisions often include types or sizes of prescriptions, generous reinvestment fees and/or a threshold in which the borrower is not required to use the product for the down payment.