New Legislation on Pledges in Russia.

April 2014 New Legislation on Pledges in Russia. On 21 December 2013 a set of amendments to the Civil Code (the Amendments ) 1 was adopted which brought long-awaited improvements to the legislation on pledges in Russia. The Amendments (with certain exemptions) will come into force in July 2014. However, market participants need to bear them in mind before then when negotiating documentation for secured financings which are repayable after this date, particularly when certain security needs to be created or amended after the Amendments come into force. The Amendments are aimed in particular at offering more protection to lenders by, first, incorporating certain foreign law concepts which have been widely used in Russian and international lending markets and, second, by filling certain obvious gaps which prevented the creation of reliable and user friendly security packages by Russian borrowers. Not only will the Amendments be beneficial for general corporate lending, they will also substantially improve the legal basis for Russian project financing. Contents Registration of pledges... 1 Pledge Manager... 2 Multiple pledgees... 2 Ranking of pledges... 3 Pledge of bank accounts... 3 Floating charge... 4 Enforcement procedures... 4 Pledge of shareholders /participants rights in Russian companies... 5 However, the Amendments require adoption of certain regulations and they raise a number of questions, especially in relation to the most innovative concepts. These questions can only be answered once relevant court practice has developed. It should also be noted that the Amendments can be applied to mortgages, but only where mortgage legislation does not contain different rules. As a result, it is unclear whether certain novel changes (like the pledge manager concept) could be applied to mortgages. We are of the view that this is unlikely and anticipate that relevant changes to the legislation on mortgages would need to follow. Registration of pledges The Amendments provide that a pledge of participatory shares in Russian limited liability companies should be registered into the register of legal entities, and that non-documentary securities (including shares) should be 1 Federal Law dated 21 December 2013 No 367-FZ On amendments to the first part of the Civil Code of the Russian Federation and declaring certain legislative acts (provisions of legislative acts) of the Russian Federation no longer in force. 1

registered into the relevant system where the rights of the holders of such securities are recorded. The pledges will only come into force from the moment of this registration. In addition, there will be a new notary registry in which pledges (except for a pledge of a bank account) may be recorded. Although this is not mandatory, and although the pledge would still be in force in the absence of such a record, this new registry is important as it will determine the priority of the relevant pledge. This new notary registry will be public and, therefore, information contained in it will be available to third parties. As a result, it will be easier for potential lenders to view information about security granted by the borrower, allowing potential lenders to be more certain about the priority of their own security. Pledge Manager Given that previously Russian law did not recognise a concept of security agent, the creation of a structure whereby several lenders can be pledgees but can also transfer rights under the relevant loan without the need to reexecute security documents created a number of challenges. In syndicated loans, the lenders used a parallel debt or a joint and several creditor structure whereby one lender would formally hold all Russian security (although contractually it was obliged to share any proceeds with other lenders). The Amendments do not contain anything which makes such structures invalid. They do, however, introduce the concept of a pledge manager. This role will be very similar to the security agent concept commonly used in English law structures, and is intended to be more attractive to lenders. A pledge management agreement can now be entered into between lenders appointing either one of them or a third party as the pledge manager. The pledge manager acting on behalf, and in the interests, of all the lenders will sign a pledge agreement with the pledgor and will perform all rights and fulfil all the obligations of the pledgee. It is intended that the lenders will compensate the pledge manager for all expenses and pay a remuneration. The Amendments do not give many details as to how exactly the pledge management agreement will operate. This raises a number of questions. In particular, it is not clear whether the pledge manager will be entered into the registers as the pledgeholder (see above on registration of pledges) or whether it will be necessary to disclose all the lenders in the register (if the latter, the pledge manager structure becomes useless in syndicated loans). Further, it is also not clear how the pledge management agreement will work in bankruptcy, given that no relevant amendments have been introduced to the bankruptcy legislation yet. Multiple pledgees The Amendments explicitly allow a situation where one pledge can secure the different obligations of a borrower owed to different lenders. The pledgees in this situation will be ranked equally unless they agree otherwise. This finally New Legislation on Pledges in Russia. 2

resolves the uncertainty surrounding the possibility of securing, for example, several loan agreements with different groups of lenders who are together covered by one common terms agreement (previously there was an argument that each group of lenders should enter into separate pledge agreements, each with a different ranking which could then be made to rank equally via an intercreditor agreement). Ranking of pledges The pledgees can now enter into an agreement to change the priority of their pledges. This would allow, for example, a new lender to join the existing financing by providing a new facility to a borrower on a pari passu basis without the need to re-execute existing security documents. Although to secure this new facility the lender will initially have to take a subsequent pledge over already pledged assets of the borrower, it can contract to equalise the subsequent pledge with the initial pledge granted to the original lenders. Note that it is not absolutely clear how such agreements would work in bankruptcy given that no relevant changes have been made to the bankruptcy legislation yet. It should also be noted that according to the Amendments, it will not be possible to prohibit the creation of a subsequent pledge (this does not, however, prejudice any negative pledge covenants agreed in an English law governed facility agreement). The pledge agreement can only provide for the terms of the subsequent pledge, but even if such terms are breached, the pledgee can only claim damages from the pledgor (unless the subsequent pledgee knew about these terms). This of course will strengthen the position of lower ranking pledgees, but weaken the defensive side of Russian security. Pledge of bank accounts Historically, the pledge of bank accounts was not allowed. Instead, lenders were granted direct debit rights in relation to Russian accounts. This was quite a weak instrument. From July 2014, the pledge of bank accounts is allowed. In order to grant such pledge, the borrower must open a special pledge account with a bank. This bank may also be the pledgee. If the pledgee is a third party, they can enter into an agreement with the pledgor and a relevant account bank and provide for special terms of operation of such pledge account. The pledge agreement can provide for a minimum amount which must be maintained by the pledgor on the pledge account. The bank cannot perform the instructions of the pledgor if, as a result, the account balance would fall below this level. Further, after notification from the pledgee of the occurrence of an the event of default, the bank should not perform any instructions of the pledgee if, as a result, the account balance would fall below the amount of secured obligations. The Central Bank is to issue rules on the opening and operation of pledge accounts. It remains to be seen how this radical change will be implemented in practice, especially in relation to pledge accounts denominated in a foreign New Legislation on Pledges in Russia. 3

currency, and in the context of debit rights provided to third parties (such as tax and customs authorities) by other laws. Improvements of the pledge of contract rights The Amendments have substantially eased the rules on the pledge of contract rights. It is now possible to pledge any types of rights, whether actual or arising in future. Pledged rights can now be described very broadly the only requirement is that such description should allow the identification of pledged rights and all relevant obligors (including future obligors). After an event of default, the pledgee can request that the obligor under the relevant pledged right performs its obligations to him rather than the pledgor. Before an event of default, the pledge agreement can provide for direct performance. Floating charge Although the Amendments do not explicitly refer to a floating charge, it is obvious that such inspiration has been derived from this English law concept. Starting from 1 January 2015 it will be possible for pledgors who perform business activities to pledge all their property without the need to identify each particular type of asset (the assets will be identified at the moment of enforcement of the pledge). We believe that this will be particularly helpful in project financing as it will allow the security to catch all the property of the project company. Note that this type of pledge does not eliminate the need to register specific pledges (such as mortgages and pledges of participatory shares or shares in Russian companies). Enforcement procedures The Amendments preserved the possibility of out-of-court enforcement of pledges. They also kept the requirement for notarisation of the pledges if the pledgee wants to have the right to enforce them through a notary (on the basis of a notary endorsement) even in the absence of cooperation of a pledgor. The wording of the Amendments suggests that it should also be possible to enforce a pledge without a court or a notary, however, this is not absolutely clear and it remains to be seen how court practice will develop in this respect. The Amendments retain the possibility for the parties to agree on the procedure for the court enforcement of the pledge. In particular, they can provide, in addition to the standard enforcement through public sale, for the right of the pledgee to take possession of the pledged property or sell it to a third party at market price. The Amendments also provide for special rules for the enforcement of the pledge of bank accounts (enforcement will be made through the pledgee instructing the bank to transfer the relevant amount to him) and for the enforcement of the pledge of contractual rights (the parties can agree on enforcement through transfer of rights to the pledgee). New Legislation on Pledges in Russia. 4

Pledge of shareholders /participants rights in Russian companies The Amendments provide for the possibility that a pledgee may exercise the rights of a shareholder/participant. It should be noted that for limited liability companies, this will be the default situation unless the pledge agreement provides otherwise. In the case of a pledge of shares, the pledgor may be required to exercise his shareholder rights only with the consent of the pledgee. Contacts For further information please contact: Matthew Keats Partner +7 495 7979459 matthew.keats@ Michael Bott Partner +7 495 7979733 michael.bott@ Julia Voskoboinikova Counsel +7 495 7979793 julia.voskoboinikova@ Marina Ushakova Managing Associate +7 495 7979725 Author: Matthew Keats, Michael Bott, Julia Voskoboinikova, Marina Ushakova, Nikolai Kurmashev This publication is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts, or contact the editors. Linklaters LLP. All Rights reserved 2014 Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ or on www. and such persons are either solicitors, registered foreign lawyers or European lawyers. Please refer to www./regulati on for important information on our regulatory position. We currently hold your contact details, which we use to send you newsletters such as this and for other marketing and business communications. We use your contact details for our own internal purposes only. This information is available to our offices worldwide and to those of our associated firms. If any of your details are incorrect or have recently changed, or if you no longer wish to receive this newsletter or other marketing communications, please let us know by emailing us at marketing.database@linkl aters.com. marina.ushakova@ Nikolai Kurmashev Managing Associate +7 495 7979758 nikolai.kurmashev@ New Legislation on Pledges in Russia. 5