In 2014 and 2015, a lot of external debt of major Ukrainian
borrowers is approaching its maturity. Around US$3 billion of
Ukrainian Eurobonds alone (excluding government and municipal
bonds) will need to be repaid in the course of the next year.
Taking into account the current economic situation in Ukraine
aggravated by the recent political turbulence and ongoing military
conflict inside the country, one can easily forecast that a large
portion of this debt will require restructuring.
Dealing with adverse conditions is hardly something new for
Ukrainian borrowers and foreign creditors. Since 2008,
Ukraine has seen a number of large debt restructurings (including
US$ 1.6 billion restructuring by Naftogaz and US$ 1.2
billion restructuring by Interpipe Group). Today foreign
creditors are again looking at the Ukrainian regulatory environment
more closely in order to consider their options in case of
potential restructuring.
Preparatory Stage Considerations
Absolute majority of debt restructurings in Ukraine are
out-of-court restructurings. Insolvency petitions are quite
difficult to succeed and will need a prior court judgment
confirming the existence and the amount of the creditors'
claims. Such concepts as balance-sheet test or cash-flow test
are not familiar to the Ukrainian insolvency regulations.
Furthermore, many Ukrainian companies attract financing through
their offshore holding companies or special purpose vehicles.
Taking such cases to court will be an extremely difficult and
costly exercise.
Once it becomes evident that restructuring is forthcoming,
creditors should focus on two points: information gathering and
assessing their position as against the borrower and other
creditors. In case of major Ukrainian borrowers, much
information may be received through their financial
statements. However, due to complex structures of corporate
groups and non-public nature of some Ukrainian companies, a lot of
information is often not readily available. As a result,
creditors may need to engage their financial and legal advisors
into researching various sources in order to see the whole picture
of the borrower's legal and financial condition.
Assessing the creditor's position is another important stage of
restructuring preparatory work. Where restructuring is not
expected to run smoothly due to disagreements with the borrower,
knowing creditor's strong points allows using negotiation
leverage to the full extent. Even where restructuring is
viewed as a routine exercise, the need for prior analysis of a
creditor's position should not be underestimated. Any
restructuring is a good opportunity to get concessions from the
borrower and improve creditor's position to protect itself
against any future deterioration of the situation.
From the legal standpoint, creditor's position would largely
depend on two factors: security and recourse to third parties
(i.e., guarantors). Without a doubt, having a secured claim
puts a creditor into a better position as compared to an unsecured
creditor. Still, most of the Ukrainian security is impossible
to enforce out of court without the co-operation of the security
provider. As a result, a secured creditor would usually face
the only route of going through court enforcement, which is likely
to be a time and cost consuming process. As a result, secured
creditor status may substantially improve the negotiation leverage,
but should not be overestimated. Certain security structures
may be improved to increase the chances of out-of-court
enforcement. Such improvements include using a local security
agent, introducing side arrangements in respect of certain types of
collateral (direct debit of bank accounts, direct transfer
instructions in respect of shares in joint stock companies)
enabling creditors to take possession of the collateral without the
co-operation of the security provider.
Guarantees issued by Ukrainian companies, much like security, may
not be easily enforceable due to Ukrainian currency control
restrictions. While in recent years currency control
restrictions have been relaxed to a certain extent, payment under a
guarantee issued in respect of indebtedness of an offshore holding
company will require obtaining by the Ukrainian guarantor of an
individual licence of the National Bank of Ukraine.
Transaction Considerations
Once the parties start documenting the restructuring
transaction, the environment will become more familiar to foreign
creditors. Most of the restructuring documents would be
governed by English or other foreign law and consist of the usual
arrangements: standstill, intercreditor agreement, override
agreement, etc. At the same time, creditors will also usually
face certain Ukrainian legal issues that will require some degree
of legal creativity to get around.
The major bottleneck in all cross-border restructuring is Ukrainian
currency control regulations. Generally, cross-border
payments from Ukraine are subject to obtaining an individual
approval from the National Bank of Ukraine (fee payments and
interest payments are among rare exceptions to this
requirement). Facility agreements and amendments to their
terms require registration with the National Bank of Ukraine as a
pre-condition to their effectiveness. The National Bank of
Ukraine has also established caps on payments in respect of a
facility, including interest, fees, costs and indemnities.
The level of these caps is now outdated, because they are below the
cost of funds that Ukrainian borrowers are able to obtain on
external markets (for example, the cap for a fixed rate loan with
maturity of over three years is 11% p.a.). Finally, Ukrainian
currency control regulations lack flexibility and
sophistication. As a result, many common structures used in
transactions outside of Ukraine technically do not fit within the
Ukrainian currency control regulatory framework and require legal
effort to properly implement in Ukraine.
Another set of complications in the course of documenting the
restructuring is caused by unfamiliarity of Ukrainian legal system
with certain concepts which are regularly used in other
jurisdictions. Consider contractual subordination which is a
common restructuring instrument that may be used to subordinate
shareholder or intragroup debt or grant priority to additional
financing provided in the course of restructuring.
Contractual subordination will not be effective in Ukraine, because
claims of all unsecured financial and commercial creditors have the
same statutory priority which may not be altered by an
agreement. As with many other Ukrainian law issues,
subordination effect may generally be synthesized through other
legal means and certain degree of comfort may be available through
undertakings by the subordinated creditor to pass all moneys
received to a senior creditor. Still, such type of issues may
complicate otherwise simpler structures and increase the time and
costs of the transaction.
Finally, successful restructuring does not guarantee financial
recovery of the debtor. Therefore, when implementing the
restructuring arrangement, the parties should take account of the
insolvency rules. These include, in particular, voidable
transactions provisions which have been modified by a recent
restatement of the Ukrainian insolvency law. The new law
expanded the list of voidable transactions which now include, for
example, any agreement on providing security over debtor's
property. Any such security created within a period of one
year before opening of insolvency proceedings may be invalidated by
the court upon request of an insolvency officer or a
creditor. Addressing this and other Ukrainian insolvency
related concerns usually involves both legal and structuring
solutions.
Conclusion
This brief outline of legal and practical issues indicates that restructuring of debt of Ukrainian borrowers requires a combination of legal and financial expertise, creativity and practicality. This is especially true for complex restructurings in terms of the number of parties involved and types of instruments being restructured. Hopefully, with increasing number of successful transactions Ukrainian legal environment will adapt to globally accepted standards. Meanwhile, foreign creditors and their advisers should carefully consider the Ukrainian legal pitfalls in order enable the creditor to get maximum recovery regardless of how post-restructuring situation unfolds.
Originally published in Corporate LiveWire
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.