신디케이티드 대출에 관한 법적 검토 = Review of Legal Aspects of a Syndicated Loan

다국어 초록 (Multilingual Abstract)

A syndicated loan is a transaction whereby loans are provided to a borrower by multiple syndicated lenders pursuant to the same terms and conditions under a single loan agreement. Syndicated loans are used mainly by a corporation which desires borrowing a sizeable amount of money. Although the syndicated loan is provided pursuant to a single loan agreement, an individual loan agreement is formed severally and respectively between each individual lender and the borrower. Therefore, basically it may be regarded that the syndicated loan agreement is combination of multiple individual loan agreements. On the other hand, the syndicated loan has characteristics as joint lending to some extent. In the case of a syndication loan, (i) new rights and duties are created surrounding the roles of an arranger and an agent which do not exist in a bilateral loan, (ii) with respect to certain important matters, the rights of syndicated lenders are exercised jointly through the agent pursuant to a resolution of the lenders made in accordance with the loan agreement, (iii) by virtue of a so-called pro rata sharing clause, the amount of a loan claim, which has been recovered by an individual lender other than through distribution made by the agent under the syndicated loan agreement, shall be redistributed among the lenders in proportion to their participation in the loans, and (iv) the administration and enforcement of security are made jointly using a security agent or a security trustee. As seen above, the characteristics peculiar to a syndicated loan are mainly centered on the relationship among the lenders. Syndicated loans have been used actively in international financial markets as one of the effective methods of raising funds. In the case of Eurodollars markets, syndicated loan agreements are usually governed by English law. In Korea, syndicated loans have also been actively used for ordinary corporate financing of a large amount, project financing, asset financing for the purchase of aircrafts, vessels, real estates, etc., and acquisition financing for M&A transactions. Owing to the globalization of finance, syndicated loan agreements used in domestic markets have accommodated many of the provisions of syndicated loan agreements widely used in international markets. In this article, following the review of court precedents and/or academic views in U.K, the United States, Japan and Korea as well as the examples of certain important contractual provisions, the author attempts to provide his academic views on the interpretation of the relationships among the parties which are peculiar to syndicated loans under Korean law. First, this article overviews the legal nature and transaction structure of a syndicated loan, including a loan participation. Then, this article discusses what duties and liabilities are assumed by an arranger vis-a-vis the borrower and the lenders, respectively. This article also discusses the duties and liabilities of an agent whose role commences upon execution of a loan agreement. In this connection, this article analyzes the recent Supreme Court judgment (dated February 23, 2012 case no. 2010da83700) which deals with the duties of an agent in an syndicated loan that was provided as part of a real estate project financing transaction. This article then discusses legal issues surrounding the joint exercise of syndicated lenders` rights, including management and enforcement of security interest, after reviewing the recent controversial U.S. court decisions on such issues. With respect to the pro rata sharing clause which may be regarded the essence of the relationship among the syndicated lenders, this article identifies and discusses the legal implications of the pro rata sharing clause, and in particular, reviews the issue involving the avoidance of a double-dipping set-off in relation to the insolvency proceedings of a borrower, along with the analysis of a lower court judgment on such issue. Identifying legal issues arising from peculiar nature of a syndicated loan and preparing contractual provisions that adequately reflect the parties` understanding would be helpful in avoiding the disputes which may arise from insufficient or unclear contractual provisions. For that purpose, it would be worthwhile preparing a standard form of syndicated loan agreements which may be referred to by domestic financial institutions and corporations, taking into account the efforts made by LSTA (The Loan Syndication and Trading Association), LMA (Loan Market Association), APLMA(Asia Pacific Loan Market Association) and JSLA (Japanese Syndication and Loan-Trading Association) to harmonize the terms and conditions of syndicated loan agreements in the relevant foreign markets.

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