A mandatory or voluntary offer cannot be conditional on funding. The bidder must have financing agreements guaranteeing payment provided that all shares are competitive.47 The bidder must indicate in the offer how its financing is insured. Financing terms must provide the bidder with certain means that are clearly available at the close of the offer48 For cash payment reasons, an independent investment service provider (a “confirmation of financing”) must confirm in writing that the bidder has taken all necessary steps to ensure that the resources necessary to fully execute the offer are available by the expiry date of the offer. As a general rule, a breach of the capital maintenance rules would not invalidate the guarantee or guarantee, but the shareholder would have to compensate the company for any overwork and the management of the company, which grants unlimited guarantees or guarantees, would be personally liable. To avoid these consequences, it is common market practice to include the language of restriction in the security and guarantees of German limited liability companies, which limit enforcement to the level permitted by law, which is subject to certain exceptions.21 Details of a prescription language are generally discussed in detail and detailed. In addition, German limited companies are subject to a strict ban on financial assistance. This is not only direct support for the financing of the acquisition of own shares, but also, indirectly, by upstream guarantees for acquisition debt.22 While Germany imposes withholding tax on certain investments, interest interest on loan contracts is generally not subject to tax at source. Some exceptions apply, for example, to certain hybrid loans (i.e. loans with an interest rate related to the borrower`s earnings or liquidity). In addition, in the case of non-German lenders, the German tax authorities could impose a withholding tax on the borrower if the interest is subject to German tax (. B for example, a non-German lender, if the loan is secured by German real estate). Particular attention should therefore be paid to the formulation of tax and compensation clauses.
Letters of commitment for financing acquisitions generally include signed debt securities. This is particularly the case for auction procedures in which bids are generally supported by fully underwritten debts. For refinancing or high-yield bond issuance operations (usually combined with a signed bridge loan), commitments are more common in efforts. Lenders generally focus on payment mechanics (for example. B agreements on deferred purchase prices or deposits, if any), the purchase price formula (for example. B blocked accounts or final accounts), closing conditions and procedures, long reference date, termination rights, guarantees and guarantees, and all supplier rights that survive the conclusion (including seller financing). Lenders generally require control of the buyer`s ability to modify or waive the corresponding provisions of the sales contract. While loans are exempt from VAT by default, lenders can collect VAT on interest payments.
Since it is not possible to determine whether the borrower is entitled to a CREDIT equivalent to VAT (of which the VAT paid to the lender would constitute a determined cost position), such an option is generally excluded from gross VAT in the loan contracts.