Проектное финансирование – один из важнейших способов инвестирования. В условиях экономического кризиса в Украине и неэффективности банковской системы, обычно кредитные договоры заключаются с иностранными кредиторами в соответствии с английским правом и другими иностранными правовыми системами. Иностранное право широко используется как для кредитных договоров проектного финансирования, так и для заключения договоров, обеспечивающих выполнение долговых обязательств украинским должником. Однако при заключении кредитных и гарантийных договоров с иностранными кредиторами украинские заемщики должны соблюдать также нормы украинского права. При этом в украинском законодательстве не отображены основные концепции, свойственные развитым правовым системам, и авторы уделяют особое внимание отдельным положениям национального права Украины, наиболее важным для украинских должников. В заключение авторы приходят к выводу о том, что имплементация в украинское право принципов, принятых в международной практике проектного финансирования, будет способствовать сближению украинской практики с лучшими мировыми стандартами.
Today modernization and development of infrastructure and production facilities are widely regarded as the fundamental pre-conditions for boosting the growth of various sectors of the Ukrainian economy. Thus, modernization of the transport network, power supply objects, construction and development of sea ports and agricultural infrastructure etc. are often seen as essential for expanding the export capacity and production efficiency of Ukrainian producers, attracting new customers, as well as for giving an overall positive impulse to further development of the economy.
Given the current poor and undeveloped state of infrastructure and production facilities, substantial financial injections are needed for the implementation of various projects in Ukraine. The majority of such financing takes the form of investments per se (joint ventures, portfolio investments) or loans. Utilization of share capital might be the obvious choice for those project companies which shareholders are ready to invest substantial amounts of their own funds into project development. However, considering the large amounts of funds usually required for infrastructure projects and other development projects and the long period for their implementation, enlisting external financing at a certain stage of the project is almost inevitable.
Due to the deep crisis currently dominating the Ukrainian banking system, most domestic banking institutions seem to be unable to be actively involved in the financing of high-budget long-term projects. Hence, nowadays foreign loans granted by international financial organizations focusing on financing infrastructure and other projects in different countries (e.g. European Bank for Reconstruction and Development, European Investment Bank) remain the most real source of project financing. Moreover, in some particular cases major foreign companies provide financing for development of certain infrastructure and other projects in Ukraine for the purposes of utilizing the completed facilities within the course of their business activity in Ukraine or participating in the completed project in future.
The typical structure of project financing implemented in Ukraine is usually based on general principles common to international practice. Still, some specifics determined by strict currency control and tax regulation, poor reflection of some legal concepts inherent in traditional project finance schemes and lower credit rate of Ukrainian borrowers make project financing kind of special. Furthermore, in addition to “classic” lending mechanisms (both bilateral and syndicated) the specific structures aimed at addressing the future participation of the lender in the completed project or its future utilization by the lender might be used.
Huge transactions aimed at project financing in Ukraine normally involve a whole range of contractual instruments typical for this type of deal. A cross-border structure (assuming participation of foreign lenders and guarantors) allows applying a foreign law (usually — English law) for particular finance documents which makes the lenders feel more comfortable.
A facility agreement is supposed to be a main finance document describing the structure and commercial terms of the deal. A number of standard terms and conditions included in the facility agreements would be subject to Ukrainian law implications and so need to be carefully developed. Otherwise, the parties may jeopardize the registration of the facility agreement with the NBU and validity of these provisions1. In particular, these provisions are:
— Tax gross-up. Ukrainian law prohibits the contractual provisions providing for one party’s undertaking to pay the taxes for another party. Furthermore, the tax authorities interpret this rule to the extent that payments top up of income anticipated under the contracts are also prohibited. Regardless of the restriction, the creditors pursue the inclusion of gross-up provision as their income (interest payable by a borrower) is often subject to a withholding taxation. To stick to a commercial agreement but stay in line with the law the parties often agree on additional amounts incorporated into a principle interest rate (based on a so-called “correction rate” corresponding to an applicable withholding tax rate). This model is not perfect as the borrower may hardly be forced to renegotiate the correction rate in case of change of the withholding tax rate, but this risk is normally covered by offshore guarantees granted either by sponsors or a shell company.
— Changes to the financial terms and parties. A loan agreement may envisage some mechanics allowing lenders to change financing terms or transfer commitments whether or not they have a borrower’s approval. Although the facility agreement may suggest otherwise, according to Ukrainian law any amendments regarding parties, amount of loan, interest rate and other payments are subject to registration with the NBU, which is not possible without the borrower’s cooperation.
— Floating interest rate. According to Ukrainian law where the facility agreement provides for a floating interest rate, the parties shall determine the maximum fluctuation of this rate. The NBU treats this rule as an imperative one and applicable to all the loans with Ukrainian borrowers, irrespective of the law applicable to the agreement. Although this approach is not undisputable, the parties should regard it since the cross-border loan agreement is subject to registration with the NBU which may simply reject a non-compliant application. There are few practical ways to avoid the implications of the said rule but they are always subject to the NBU’s position, which may change from time to time, as a matter of practice.
— Waivers. According to Ukrainian law certain civil rights and powers (e.g., the right to sue, launch the bankruptcy proceedings, distribute the dividends) may not be contractually limited as they are inherent in the legal capacity of a legal entity registered in Ukraine. This, however, should not preclude lenders from retaining these provisions — though the Ukrainian obligors may not be forced to comply with such undertakings in Ukraine, they may still be liable for a breach under the law applicable to a loan agreement. The lender’s remedies could be a declaration in event of default, reimbursement of losses, etc.
— Effectiveness. According to NBU regulations the cross-border loan agreement shall provide that it comes into force no sooner than the date of its registration with the NBU. Obviously, this requirement creates some confusion in practice (e.g., in terms of representations and warranties a borrower gives as of the date of signing an agreement), but there is no apparent practical solutions but to deal with the said rule. However, the above requirements do not apply to loans obtained by Ukrainian borrowers from international financial institutions.
The security is always structured considering various risks associated with the project and Ukrainian legal and political systems. From the legal perspective it should be noted that particular security instruments widespread in international practice are not recognized by Ukrainian law; other ones do not have a clear and effective enforcement procedure. Some instruments would be ultimately governed by Ukrainian law for exclusive jurisdiction reasons (mortgage of immovable property located in Ukraine) or the potential unavoidable effects of Ukrainian law on the enforcement procedure under such instruments (pledge of movable assets located in Ukraine, including shares, receivables, etc.). Hence, project finance transactions normally suppose for both Ukrainian and foreign law security instruments to be involved. Obviously, the framework may vary depending on the type of project, its stage, credit rating of the company, etc.
When it comes to “Ukrainian” security documents within syndicated transactions, the question of the scope of parties on the lenders’ side would arise. To make the syndicate flexible, finance documents normally incorporate “parallel debt” or “security trustee” clauses, so each single lender, instead of entry into each security document, authorizes a security agent to do so on its behalf. These concepts, which are known to other jurisdictions, are not expressly recognized by Ukrainian law, which states that security must be granted to a creditor of an underlying obligation. There is no standard practical solution of this issue — one claims these concepts should work in Ukraine, the other suggests to replace them with a similar concept known to Ukrainian law — “joint and several creditors” — implementing respective wording both to a facility agreement and Ukrainian security documents. In any case, neither approach was tested in Ukrainian courts, so the specific choice remains subject to the views of legal counsels advising on the deal.
Security documents governed by Ukrainian law may include mortgage over immovable project assets, pledge of equipment, receivables or the project company’s shares. Along with Ukrainian security documents, a typical project finance structure also involves certain agreements and deeds governed by foreign law (usually — English law or the law of a security provider’s jurisdiction). Such involvement is determined by various reasons — basically, intention to have recourse to parent companies, as well as to avoid the negative impact of Ukrainian currency control restrictions and lack of enforcement procedure. The standard scope of non-Ukrainian documentation consists of various types of sponsor guarantees, pledge of shares in an off-shore shell company, pledge of an offshore project account, etc.
Apart from securing the project company’s obligations offshore guarantees may be also designed to structure the cash flows within the financing transaction. Ukrainian currency control restrictions may not allow a Ukrainian borrower to pay to a foreign lender interest or fees at a commercially agreed level should they be in excess of the NBU cap. Here comes a sponsor’s guarantee (traditionally governed by English law) that may incorporate a sponsor’s obligation to pay that excess.
Finally, the standard set of finance documents often includes subordination and intercreditor arrangements. These are not fully enforceable in Ukraine — notably, because Ukrainian law does not recognize arrangements attempting to alter the priority of claims within an insolvency procedure. Moreover, an obligation to refrain from application of the amounts received in discharge of the outstanding obligations and, instead, transfer of such amounts to another party, may not be recognized by Ukrainian law. Although the respective agreement may be governed by a foreign law, Ukrainian law implications would be unavoidable here. However, a Ukrainian party breaching such arrangement may be still pursued for violation and be liable under the law governing the arrangement in question (assuming that this law upholds the legal concepts in question).
In case the parties to the finance transaction agree to ensure the future participation of the lender in the completed project specific legal structures might be used by them. Such structures usually include provision of financing under transaction documents which, alongside the conditions of the loan as such, indicate the instruments allowing the lender’s participation in the project (e.g. loan conversion into equity), as well as the terms and conditions for future functioning of the project company as a joint venture (which might include the pre-agreed forms of the shareholders’ agreement, put/call option agreements, etc.). Taking into account the fact that corporate legislation in Ukraine is undeveloped, the above structures are usually implemented using holding companies in offshore jurisdictions that have a favorable and flexible corporate legislative framework.
Despite the successful financing of certain projects in the past, the Ukrainian legal framework in this area is still undeveloped and does not reflect the major concepts widely used in international practice. Further implementation of various projects in Ukraine (including those relating to construction of infrastructure objects), which is highly anticipated by the Ukrainian market but depends on the overall improvement of economic and investment climate in Ukraine, will most likely bring a new impulse to development of the Ukrainian legislative base and its harmonization with best world practice.
1.The NBU is currently working on cancellation/ simplification of the procedure for registration facility agreements involving nonresident lenders; however, at the present time the respective requirements are still in place and should be observed by the parties
Авторы: Maryna A. Fedorenko, Denys V. Kulgavyi
Источник: http://www.ujbl.info/article.php?id=605