Intercompany loan agreements

It’s probably unfair to say that it’s a hallmark of a well-run company that it has established processes for documenting all of the processes which are key to its business. That would be easy to assert, but very hard to do. But if that principle did apply, then it would also apply to the creation and documentation of intra-group loan relationships. This includes cash-pooling arrangements, which typically amount to loans made by the various participating companies to the cash pool leader.

From a legal perspective, this is not rocket science. The key terms will include:

drawdown and utilisation of advances conditions precedent to drawdown term (repayment date) and the borrower’s ability to repay early (prepayment) interest rates, interest periods and compounding security and subordination events of default triggering early repayment, and default interest

As with any intra-group arrangements, a critical litmus test is whether directors can properly approve the terms of the loan relationship as being in the interests of each individual company of which they are a director.

From a lender’s perspective, this ‘corporate benefit’ issue is particularly relevant for loans by a subsidiary to a parent company or a sister company. It may less of an issue in the case of a loan by parent to its subsidiary, since the parent has a clear financial interest in the success of its investment. However, for upwards or sideways loans within a group structure, factors such as the borrower’s ability to repay the loan will obviously be important. It should go without saying that it’s not enough for the making of the loan to make sense from a group-wide perspective. The loan must also be justifiable from the perspective of each legal entity participating in the arrangements.

In one extreme but typical example, a group finance company made a loan of over a billion dollars to a special purpose vehicle (SPV) which used the loan proceeds to acquire listed securities in the market. The SPV was a sister company of the finance company – in other words, they were both subsidiaries of the same holding company. The loan was expressed to be repayable on demand. As was expected, the value of the securities fell almost immediately, leaving the SPV with negative net assets. It would be hard to justify those arrangements as being for the corporate benefit of the lender, in the absence of additional arrangement such as a parent company guarantee to support the borrower’s obligations.

From the borrower’s perspective, a parent company guarantee in favour of the lender doesn’t help. If the guarantee were to be called on – and the parent procured repayment of the loan amount to the lender – the balance sheet position of the borrower would not be improved. It would simply owe the same amount to the parent rather than the original lender. From the borrower’s perspective, it would therefore need some additional comfort, such as a subordination agreement with the parent or some other commitment of financial support.

Please see the following link for examples of short-form intercompany loan agreements.