Talks between Elon Musk and Twitter Inc. to reach a resolution of the US$44 billion takeover are stuck in part over Musk’s statement that his offer is now contingent on receiving US$13 billion in debt financing, according to people familiar with the matter.

The billionaire’s lawyers said in an Oct. 3 SEC letter that Musk was willing to do the US$54.20-per-share deal on its original terms “pending receipt of the proceeds of the debt financing.” The original deal didn’t contain such a contingency.

The discussions between the world’s richest man and the social media platform are aimed at resolving remaining issues before closing the deal, which he originally proposed in April and then reneged on. The two sides are expected to file a motion with the court when they have settled all their questions, which would stop the lawsuit that Twitter filed in the aftermath of Musk’s rejection. 

Musk is also seeking to reserve his rights to file a fraud suit over his claims the platform’s executives misled him and other investors about the number of spam and robot accounts among its more than 230 million users, according to one of the people, who asked not to be named discussing non-public matters.

Representatives for San Francisco-based Twitter didn’t immediately respond to requests for comment. Musk didn’t respond to an email seeking comment. 

BANK DEBT

Seven banks, led by Morgan Stanley, fully underwrote the debt portion of the financing, according to an April filing. As is usual in this type of contract, banks originally planned to sell most of that debt to institutional money managers before the Twitter deal closed, but they have always been on the hook for providing the funding if anything went wrong.

There are very few, if any, ways for banks to get out of providing such debt commitments after signing the contract. And most banks wouldn’t want to, even if it meant preventing a loss -- backing out would reflect poorly on their investment banking business and could harm their ability to win new deals with companies and private equity firms in the future.

If the two sides agreed on a resolution, a deal could close quickly, as soon as a week, a person familiar said Wednesday. The deal might close so quickly that the banks would be expected to fund their debt commitments and likely syndicate the offering with investors after the deal closes, Bloomberg reported. 

Even if the banks have time to sell the debt to money managers, credit market conditions have deteriorated since April. The Morgan Stanley-led group could struggle to find buyers for all the bonds and loans and would likely have to take losses on at least part of the financing package. But that is ultimately the banks’ problem, not Musk’s. 

Morgan Stanley didn’t respond to a request for comment about the Musk deal. 

Howard Fischer, partner at law firm Moses Singer, sees no legal basis for the banks to be able to get out of the Twitter debt commitments, he said in a phone interview. “Generally it would be hard to have deals go forward if they were contingent on bank financing and that bank financing was not rock solid,” he said.

Shares in Twitter fell 2.4 per cent to US$50.07 at 2:05 p.m. in New York. Both sides agreed Wednesday to postpone Musk’s long-awaited deposition in the lawsuit, which is aimed at forcing him to consummate the transaction.