INTERNATIONAL FINANCE / CAPITAL MARKETS INSTRUMENTS
EUROBONDS ISSUES IN UKRAINE EUROBONDS 2004/2005 UBS Limited and Dresdner Kleinwort Wasserstein 7.75 5 23.09.2009 150,000,000 23.09.2004 Ukreximbank - 1 Citigroup, FSCB and Dresdner Kleinwort Wasserstein 6m LIBOR + 3.375 5 05.08.2009 500,000,000 05.08.2004 Government of Ukraine - 4 Deutsche Bank AG and UBS limited 8.95 3 14.07.2008 100,000,000 29.06.2005 Ukrsibbank Citigroup and Dresdner Bank AG 7.75 7 15.04.2012 175,000,000 15.04.2005 Kyivstar GSM - 3 ING Bank (the Netherlands) 7.873 3 27.07.2008 125,000,000 27.07.2005 Stirol ABN AMRO and Moscow Narodniy Bank (UK) 9,00 3 06.06.2008 100,000,000 25.05.2005 Ukrsotsbank Citigroup and Dresdner Kleinwort Wasserstein 10.375 5 17.08.2009 265,000,000 27.07.2004 Kyivstar GSM - 2 ABN AMRO Bank N.V. 8.125 5 30.09.2009 500,000,000 23.09.2004 Naftogaz UBS Limited and Dresdner Kleinwort Wasserstein 7.75 - 23.09.2009 100,000,000 28.01.2005 Ukreximbank - 2 Lead-managers Coupon % Life, Years Maturity date Amount (USD) Settlement date “ Issuer”/Borrower
Deutsche Bank and Morgan Stanley 8.625 7 15.07.2011 200,000,000 15.07.2004 Kyiv City - 2 JP Morgan 8.00 5 02.02.2009 107,500,000 02.02.2004 Yuzhmash Dresdner Kleinwort Wasserstein 10,5 3 05.04.2007 100,000,000 23.03.2004 Ukrsibbank Dresdner Bank AG and Merrill Lynch 6.875 7 04.03.2011 600,000,000 26.02.2004 Government of Ukraine - 3 Credit Suisse First Boston 10.88 3 19.12.2006 100,000,000 09.12.2003 Privatbank Lead-managers Coupon % Life, Years Maturity date Amount (USD) Settlement date “ Issuer”/Borrower ING Barings 11.00 7 15.03.2007 1,129,329,000 15.03.2000 Government of Ukraine - 1 Dresdner Kleinwort Wasserstein 12.75 3 21.11.2005 160,000,000 21.11.2002 Kyivstar GSM - 1 Dresdner Bank AG London Branch, "J.P.Morgan Europe Limited" and UBS Limited 7.65 10 11.06.2013 1,000,000,000 11.06.2003 Government of Ukraine - 2 Dresdner Kleinwort Wasserstein, J.P. Morgan, UBS Warburg 8.75 5 08.08.2008 150,000,000 29.07.2003 Kyiv City – 1
The issuer is an immediate and final funds recipient
Possible only in sovereign Eurobond issues
Corporates may not issue bonds denominated in foreign currency resulting in impossibility of a direct corporate Eurobonds (Commercial Code, Art.165, Securities Law, Art.12)
Circulation of corporate bonds outside Ukraine is heavily and restrictively regulated by State Commission on Securities and Stock Market of Ukraine (the “SEC”) (Infamous Regulation 36 of 17.10.1977, as amended):
charter capital of at least UAH 5 mln.;
purchase price may not be less than par value or market value, as indicated at a Ukrainian stock exchange or OTC system;
listing at a foreign stock exchange or OTC system must be approved by the SEC after domestic registration of the issue;
issuer must submit to the SEC an audited placement report and copies of transaction documents, annual report and statement of interest paid to bondholders;
amount may not exceed capital fund of the issuer (Civil Code, Art. 158)
EUROBONDS STRUCTURE: DIRECT ISSUE
EUROBONDS INDIRECT ISSUE: LIMITED RECOURSE LPN STRUCTURE Lender / Issuer Proceeds of Notes Borrower Noteholders Trustee Loan repayment of principal and interest on the Notes trust repayment of principal and interest on the Loan trust pledged rights under the Loan Transfer agent P aying agent Lead Manager(s) / Underwriter(s) Law Firms / Counsel Auditors Rating Agency
• DEFINITION: Securities (i) denominated in currency other than that of “issuer”, (ii) placed publicly (through listing at a stock exchange) or privately by a syndicate of underwriters among foreign investors to whom this currency is also foreign, and (iii) establishing a debt obligation of the issuer to pay a par value amount plus interest to the bondholders
• AMOUNT : from USD 100 mln.
A. - offering in the US to “qualified institutional buyers” in reliance on Rule 144 A under US Securities Act of 1933, and / or
- offering outside the United States in reliance on Regulation S under US Securities Act of 1933
B. - Direct issue
- Indirect Issue
Preliminary Offering Circular
Trustee Indemnification and Compensation Agreement
Agency Agreement (payment and transfer)
Agency Indemnification and Compensation Agreement
EUROBONDS LPN STRUCTURE: PRINCIPAL DOCUMENTS
LENDER/ISSUER: Borrower’s SPV or an arm’s length intermediary
SPV: Individual license of the National Bank of Ukraine (“NBU”) to conduct investment abroad (NBU Instruction № 122 dated 16.03.1999) (onerous requirement of a contract between parent and its “foreign partner” and documentary evidence of registration of SPV)
INTERMEDIARY : bank, financial institution or not (Commercial Code, Art. 388).
LOAN vs. BORROWING : a by-pass surgery
- Civil Code, Art. 1046 allows borrowing from a non-financial lender;
- Corporate Tax Law includes borrowings into “financial loans”;
- Banks and municipalities may borrow only from foreign banks and financial institutions.
REGISTRATION OF THE LOAN with the NBU (notification, if the borrower is a bank).
PRICE EVALUATION ACT is required for a payment for services in excess of EUR 50.000 to a non-resident, except for payment, inter alia, under loans registered by NBU, payments to EBRD or IBRD, or for financial services (when the borrower is properly licensed to carry out such business).
- fixed rates are capped at: 9.8% for loans of up to 1 year;
10% for loans from 1 to 3 years;
11% for loans of more than 3 years .
- floating rates are capped at 3-month USD LIBOR plus 750 bp . (floating interest
- loans of “strategic importance” to Ukrainian economy, commercial (deferred payment)
loans and loans guaranteed by the government are not subject to a cap
- interest includes the lender’s fees, default interest, and other charges under the loan
- prepayment is subject to interest cap effective on the prepayment date (uncertain
amount and interpretation)
- registration of loan amendment may be denied by the NBU, if at the time of
amendment interest rate under the loan exceeds the then effective cap
INTEREST RATES APPLICABLE UNDER DOUBLE TAX TREATIES OF UKRAINE Relief from taxation is granted to banks, insurance companies and other companies that are engaged in the active conduct of business 0 0 USA 9 Beneficial ownership requirement; application of reduced rate only to amounts that payer and beneficial owner would agree on absent special relationship between them 0 0 Spain 10 0 3 0 2 2 2 0 2 Reduced Rate (%) Beneficial ownership requirement Beneficial ownership requirement Interest payments under bank loans and commercial loans; beneficial ownership requirement Interest payments under bank loans and commercial loans; beneficial ownership requirement Interest payments under bank loans and commercial loans; beneficial ownership requirement Interest payments under bank loans and commercial loans; beneficial ownership requirement — Interest payments under bank loans and commercial loans; beneficial ownership requirement Reduced Rate Apply to 0 Great Britain 8 3 United Arab Emirates 7 10 Switzerland 6 10 Kingdom of Netherlands 5 10 France 4 5 Germany 3 0 Cyprus 2 5 Belgium 1 Full Rate (%)
EUROBONDS LPN STRUCTURE: TAX ISSUES
BENEFICIAL OWNERSHIP as a condition of a reduced interest rate
TAX RESIDENCY CERTIFICATE
NON-APPLICABILITY OF A DOUBLE-TAX TREATY in case of assignment of the loan to the Trustee
GROSS-UP AND TAX INDEMNITY may be challenged as providing for payment of tax on behalf of the other party (Corporate Tax Law, Art.16.14 and 18.2)
ACTS OF ACCEPTANCE OF SERVICES
TAX RULES IN THE LENDER’S JURISDICTION
SYNDICATED LOANS 2004 / 2005 Deutsche Bank, ING, Citibank, Standard Bank, Raiffeisenbank, Societe Generale, Parex Bank are among arrangers of syndications in Ukraine 18,000,000 Prominvestbank 30,000,000 Ukreximbank 20,000,000 30,000,000 (2005) FUIB 10,000,000 37,000,000 (2005) Ukrsibbank 13,000,000 45,000,000 (2005) Ukrsotsbank 14,500,000 47,000,000 (2005) Aval 75,000,000 Kyivstar GSM 85,000,000 (2005) Industrial Union of Donbas Amount (USD) Borrower
LOAN PROVIDED JOINTLY BY SEVERAL BANKS OFTEN FROM DIFFERENT JURISDICTIONS WITH THE BORROWER
IPO GDR/ADR STAGES Selection of Investmentbank (lead manager, underwriter), legal counsel, auditors Business / Corporate decision Business analysis Due diligence / restructuring Share issue registration by SCSSM Audited financials (IAS, GAAP) GMS Transaction documents; offering memorandum, listing documents, depository agreement Registration by regulators end SE Road Show Subscription for ADR / GDR, purchase of shares by Depositary
IPO Legal issues
ACQUISITION OF SHARES : brokers and investment accounts
BENEFICIARY HOLDING OF SHARES under the depository agreement vs. “true ownership” under Ukrainian corporate law
SPLIT VOTING RIGHT and other corporate rights
DISCRETIONARY PROXY PROVISION in the depository agreement (management voting rights)
ADR/GDR HOLDERS may seek protection in international dispute resolution forums
TAX ON DIVIDENDS
IPO 20 % of the issuer’s capital 5 15 USA 9 20 % of the issuer’s capital 5 10 United Kingdom 8 10 % of the issuer’s capital 5 15 United Arab Emirates 7 20 % of the issuer’s capital 5 15 Switzerland 6 5 0 % of the issuer’s capital and the investment equals to $300.000 US 0 20 % of the issuer’s capital 5 15 Kingdom of Netherlands 5 5 0 % of the issuer’s capital and the investment equals to 5 million francs . 0 10 % of the issuer’s capital 5 15 France 4 20 % of the issuer’s capital 5 10 Germany 3 — 0 0 Cyprus 2 20 % of the issuer’s capital 5 15 Belgium 1 Reduced Rate Applies if beneficial owner of dividends is a holder of at least: Reduced Rate (%) Full Rate (%) Tax on Dividends Jurisdiction
GBP 6 mln. Placement
total cost: GBP 700,000
timing: 1 year
STRUCTURED FINANCE Financing structured to free the provider of funds from concerns over credit-worthiness of the recipient of funds. The financier relies for payment on assets that are legally isolated from the funds recipient resulting in elimination of bankruptcy risk of the latter. • Securitization of assets • Project Finance
Limited recourse or Non-Recourse Financing
Target: • limit or remove liability of a “true” recipient of funds (sponsor in project finance or originator in securitization)
• reduce or eliminate risk of financier (investor or lender) related to performance or bankruptcy of the originator (sponsor)
Method: • “True Sale” of Assets (Securitization)
• Establishment of a Project SPV
STRUCTURED FINANCE Features
A. In Securitization : All asset-backed securities are credit enhanced to provide greater investor’s protection against losses (defaults by the obligors), reducing the credit risks of the underlying pool of assets and increasing securities rating. Credit enhancement may be provided by the originator or a third party in the form of a guarantee (by the originator, bank or insurance company), reserve fund or cash collateral (by the SPV), overcollaterization, a revolving facility (bank or the originator), and/or senior/subordinated structures (by the SVP).
B. In Project Finance : Sponsor’s or third party’s security in the form of pledge, mortgage, guarantee, including performance guarantee, letter of credit, and/or a contingent equity commitment.
STRUCTURED FINANCE Features
• Financing (loan) to an SPV created (sponsored) by one or several business enterprises for the purpose of building and operating a large-scale, long-term, revenue-generating infrastructure project;
• Loan is repaid from receivables generated by the project under off-take contracts with customers (clients) rather than from assets of sponsors;
• Typical examples include power plants, oil and gas systems, ports, and telecommunications networks. Examples of Ukrainian project finance include:
- EBRD’s Euro 75 mln. financing of reconstruction of highway Chop-Striy (2000) and anticipated Euro 100 mln. financing of reconstruction of MO 6 highway Kyiv-Chop;
- EBRD’s USD 10 mln. financing of Energy Alliance (sponsored by Western N IS Enterprise Fund) to develop independent energy generating facilities;
- USD 171.75 mln. loan from the Government of Japan to the Government of Ukraine to reconstruct Boryspil airport;
- Deutsche Bank’s USD 700 mln. and USD 480 mln. loans to the Ukrainian Railroad Agency and the State Road Service of Ukraine under the guarantee of Ukrainian Government for construction of the bridge and highway Kyiv- Odessa.
STRUCTURED FINANCE PROJECT FINANCE
PROJECT FINANCE repayment loan Insurance company Project SPV Lender Sponsor(s) Clients / customers Suppliers / contractors guarantee mortgage and pledge of project assets payments services receivables sales / lease Financial consultant Law Firms equity
• Developed embrionically in the 1970s it now represents one of the dominant means of capital formation in the United States and increasingly throughout the world.
• Conversion of assets, such as bank loans and credit receivables, into marketable securities for sale to investors by means of sale of such assets by a bank (originator) to an SPV (issuer) on a non-recourse basis
• Assets transfers where the buyer has recourse against the selling institution are financing, e.g., borrowing secured by assets
• A bank appealing instrument: securitized assets may include residential mortgages, auto loans, leases, credit card receivables
STRUCTURED FINANCE SECURITIZATION OF ASSETS
SECURITIZATION OF ASSETS SPV assets-backed securities (bonds) Originator / Servicer Investors sale of asset purchase price (securities) purchase price (assets) Listing Agent Trustee Law Firms Lead Manager Obligors assets (receivables) credit Credit agency Credit enhancer(s) credit rating enhancement Administrator Paying Agent agency to service receivable accounts pledge of receivable account Enhancement (overcollaterization, guarantee, loan)
SECURITIZATION OF ASSETS PARTICIPANTS
• Originator: sells and securitize a portfolio of assets removing them from its balance sheet through a “true sale” operation, such as factoring. Originators are likely to be banks, leasing companies and operators.
• Assets are mortgage receivables, trade receivables, commercial loans, credit card revolving loans, automobile loans, consumer loans, leases (including automobile leases), should be for at least USD 100 mln.
• Obligors (e.g., individual consumers and highly rated corporations) make payments on the securitized assets.
• SPV is a company or trust set up in a tax friendly jurisdiction to be bankruptcy remote. It buys securitisized assets and funds its payment of the purchase price with the capital provided by investors for securities issued by the SVP. The SVP is often managed by the administrator or a corporate service provider.
• Servicer (often originator) is a designated agent of the SPV to administer the portfolio of securitized assets, including collection of receivables.
• Investors are typically large institutional investors. The size and complexity of issues and tickets make asset-backed securities unsuitable for retail investors.
• Lead manager is usually an investment bank advising the Originator on the transaction structuring, managing the issue of securities and liasing with other parties, such as rating agencies, lawyers, and credit enhancers. The lead manager is responsible for advising on the pricing, the underwriting and the placement of securities and is responsible for compliance of the issue with applicable securities law and regulation.
• Auditor issues a de-consolidation opinion regarding Originator’s sale of assets under relevant GAAP (IAS).
• Credit Enhancer may be the SPV, the Originator and/or third party providing a guarantee, reserve fund or cash collateral, overcollaterization, and/or senior/subordinated structures to reduce the credit risk of the securitized assets and increase credit rating of the SPV’s securities. A third-party guarantee may be a letter of credit from a bank or a policy from an insurance company.
SECURITIZATION OF ASSETS PARTICIPANTS (continued)
• Trustee (usually a specialist trust corporation or part of a bank) appointed to act on behalf of investors, including controlling cash flows and holding security over securitized assets.
• Law firms . There are usually two sets of law firms, one acting for the lead manager/trustee and the other – for the Organizator. Law firms draft and review the transaction documentation covering all structuring and funding aspects of a transaction, draft offering circular, and issue legal opinions addressing such issues as “true sale” of assets, enforceability, perfection of ownership rights in future receivables, and regulatory issues.
• Rating Agencies . There are three main rating agencies operating in Europe: Fitch Rating Ltd., Moody’s Investors Service Limited, and Standard & Poor’s Rating Group. They (i) provide investors with an independent opinion on the creditworthiness of a debt instrument through a standard matrix of rating levels identified by way of symbols and (ii) periodically survey closed transactions during their lifetime.
• Paying agent is an internationally reputable Bank (often a Trustee’s or Administrator’s affiliate) responsible for making payments on the securities to the investors (usually through a clearing system, such as Clearstream and Euroclear)
SECURITIZATION OF ASSETS A. Benefits for Originators • Attractive financing alternative at reduced cost of funds as a result of segregation of the assets from the credit risk and higher credit rating of the securities issues by the SPV • Effective Management tool based on non-recourse financing • Ideal way to tap the capital markets on an anymous basis for unrated companies facing difficulty in issuing debt in their own name • As an off-balance sheet funding technique , it reduces debt to equity ratio by selling assets and using the proceeds to repay more expensive long-term debt (e.g., releasing credit lines for future business) If Originator is a bank: • Greater liquidity • Diversification of finance sources and risks • Improvement of capital indicators (reserve fund, debt ratios) B. Benefits for Investors • Diversification of investments within an investment portfolio • Spreading risk between different sectors of economy by reference to assets generated in such sectors • Comfort from the highest level of structural and legal review • Transparency of the securitization risks • Supply of highly rated instruments
SECURITIZATION OF ASSETS LEGAL ISSUES The concept of factoring under Ukrainian law and general theory of obligations (contacts) appear to accommodate securitization structure. А . Origination of Assets • Asset is not void or unenforceable, but there are remedies against the Originator in the event of the Originator’s breach under an asset underlying contract • Originator’s liability is not transferred to the SPV (financier) • Standard asset documentation permit securitization without obligors’ consent • Assets include present and future receivables (Civil Code, Art. 1078) - right of future claim is assigned when it arises
SECURITIZATION OF ASSETS LEGAL ISSUES (CONTINUED)
B. Currency Control
• Receivables under contracts with non-residents obligors (export factoring) are subject to currency control limitations, e.g., requirement of a 90-day payment by the Obligor to the Originator’s bank account, and therefore may not be eligible for securitization.
• Receivables payable by Obligors in local currency must be converted to foreign currency by the Servicer for the subsequent transfer to the SPV. However, Ukrainian law currently does not allow such conversion. The solution may be in amending applicable regulation or modification of the transactional structure, e.g. by combining an LPN structure with assignment of assets by the Originator to the borrower (SPV):