NETHERLANDS Law and Practice Contributed by: Folko de Vries, Ilse van Gasteren, Robert Smits and Stern Flik, Clifford Chance
Revolving Facilities Revolving facilities are typically only provided by private credit providers for a certain bridge period. Delayed Draw Facilities Delayed draw facilities are common in the Neth - erlands and feature on the majority of deals. In first-out last-out (FOLO) structures, the super senior lender or super senior lenders will often be allocated part of the delayed draw facility (which then is converted into a super senior delayed draw facility) alongside their participation in the drawn term debt (which is then converted into super senior drawn term debt). 3.2 Key Documentation Key documents are a commitment letter, a term sheet and a precedent facilities agreement and, after the initial commitment phase of the trans - action, a facilities agreement and intercreditor agreement. A precedent intercreditor agree - ment is often designated in the initial commit - ment phase, but it will depend on the selection of any super senior lender how effective that des - ignation is, given that the relationship between senior lenders and super senior lenders (also in the facilities agreement) is not standard and still developing. A number of the provisions which are relevant for this relationship will typically be included in the facilities agreement and others in the intercreditor agreement FOLO FOLO transactions are quite common in the Netherlands and the relationship between senior lenders and super senior lenders is dealt with in the same manner as transactions in which there is only senior term debt and super senior revolv - ing debt. Less common in the Netherlands is to allocate senior term debt to a super senior revolving lender.
Foreign investment taking place by way of an equity investment will be subject to private placement rules as they apply in the jurisdic - tion of the equity investor. There are no foreign investment restrictions that apply directly to the equity investor. 2.4 Compliance and Reporting Requirements There are no compliance and reporting require - ments in the Netherlands for private credit pro - viders that engage in corporate lending only (ie, to parties other than consumers). Regulated credit funds are subject to the regulatory report - ing requirements as these apply to investment funds (but not subject to any standalone corpo - There are no specific concerns on club lend - ing by private credit providers, neither is this a priority of the national competition authority in the Netherlands. However, club lending is sub - ject to applicable EU and national antitrust rules and, accordingly, private credit providers should not use a club lending occasion for purposes of (tacit) collusion on other (competitively sensitive) matters. rate lending reporting requirements). 2.5 Club Lending and Antitrust 3. Structuring and Documentation 3.1 Common Structures Common Structures The most common structures (disregarding any holdco financing or equity co-investments) are either a combination of senior term debt and a super senior revolving facility or a combination of senior term debt and super senior term and revolving facilities.
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