NBU extends the term of foreign lender loans prepayment prohibition (extended)

Asters, Kyiv, Ukraine, 
Mon, Sep 7, 2015

By its Resolution No. 581, effective as of 4 September 2015, the National Bank of Ukraine (the "NBU") extended the term of the prohibition of early repayment of loans provided by non-resident lenders until 4 December 2015 (inclusive).

According to Resolution No. 581, the NBU shall not register amendments to loan agreements with non-resident lenders reducing the term of fulfillment of the resident borrowers' obligations under such loan agreements or providing for early fulfillment of obligations thereunder.

The prepayment prohibition shall not apply if:

• the prepaid amounts are used to increase the capital of the bank acting as the borrower;

• the prepayment is made from the proceeds of the loan extended under the other cross-border loan agreement, provided that such a new loan agreement establishes a later maturity date (in whole or in part) compared to the previous loan agreement.

By Resolution No. 581, the NBU has introduced the prohibition of registration of:

• amendments to the cross-border loan agreements of Ukrainian borrowers (other than the banks) contemplating the substitution of the parties thereunder, being eventually a prohibition of loan assignment (the "Loan Assignment Prohibition"); and

• domestic loan agreements assigned to foreign entities. 

The Loan Assignment Prohibition does not apply to:

• the substitution of the initial borrower occuring as a result of its merger with the new borrower and/or the liquidation of the initial borrower;

• the loans provided by the international financial institutions, of which Ukraine is a member, or the international financial institutions enjoying a similar legal regime.

The NBU may, on case-by-case basis, grant the registration of amendments to the loan agreements resulting from assignment where the lender and the borrower are affiliated entities.

Furthermore, Resolution No. 581 reiterates, inter alia, the prohibition of:

• repatriation of proceeds received by foreign investors from the sale of Ukrainian issuers' securities outside the stock exchanges;

• repatriation of proceeds received by foreign investors from the sale of their corporate rights in legal entities, which are not documented as shares, or via reduction of Ukrainian entities' charter capitals or withdrawal from such entities;

• repatriation of dividends to foreign investors;

• making payments on the basis of NBU individual licenses (including investing outside of Ukraine), except for the following:

1. crediting funds to legal entities' accounts opened abroad on the basis of NBU individual licenses;
2. residents' payments under the guarantees/suretyships issued in connection with the loans provided by the international financial institutions or the financing involving foreign export credit agencies;
3. local business entities' single or periodical payments on account of admission or members' fees in the foreign currency to maintain the operation of the foreign legal entities;
4. other cases, provided that the total amount of such payments does not exceed USD 50 thousand (or the equivalent thereof) within a calendar month on the basis of a single NBU individual license.

For further information please contact Asters' partner Iryna Pokanay
and counsel Gabriel Aslanian.