On 9 June 2011, the Cabinet of Ministers of Ukraine (the “CMU”) adopted Resolution No. 611 ‘On the Approval of the Procedure and Terms for Granting State Guarantees in 2011 for Securing the Debt Obligations of Businesses under Borrowings Attracted for the Implementation of Investment, Innovation, Infrastructure and Other Development Projects, which are of a Strategic Importance and the Implementation of which Will Strengthen the Development of the National Economy’ (the “Resolution”). The Resolution came into force on 24 June 2011.
According to the Resolution, state guarantees can be provided by the CMU to secure the borrowings, attracted by:
- state entities that belong to the state sector of the economy to implement the investment, innovation and infrastructure, as well as other strategic and important projects for the Ukrainian economy (the “Projects”); and
- the State Finance and Credit Organisation as well as the State Investment Company, to finance resident business entities (regardless of their form of incorporation or ownership) that implement the Projects.
However, the Resolution is not applicable to the following borrowings/obligations:
- debt obligations under the loans secured by state guarantees attracted for the implementation of projects of economic and social development of Ukraine which are supported by international financial organisations;
- obligations of the State Road Service of Ukraine to pay for the objects commissioned by investors or obligations under the concession agreements; and
- obligations of business entities that manage state property objects falling under the competence of Ukreuroinfraproekt (The National Agency for Preparations and Holding the Finals of the EURO 2012 and the Implementation of Infrastructure Projects).
In order to obtain a state guarantee, the state entity that belongs to the state sector of economy or the resident business entity which is going to implement the Project, (the “Applicant”), must prepare the relevant proposal, obtain a number of approvals from different Ukrainian authorities and meet certain other formal requirements established by Ukrainian law. The procedure for granting state guarantees can be summarised as follows:
- Announcement: The Ministry of Economic Development and Trade of Ukraine (the “Ministry”) announces the tender procedure for selection of the Projects via the official newspaper “Uryadovyi Kuryer” (the Government Courier) as well as its official website, not later than 10 days before the tender procedure is due to be held;
- Application: The Applicant prepares a proposal on the implementation of the Project (the “Proposal”) and submits it to the respective competent authorities for approval;
- Approvals: The following competent authorities review the Proposal (as well as other supporting documentation submitted by the Applicant) and approve it: (i) the relevant central state executive body, (ii) the State Agency for Investments and Management of National Projects of Ukraine, the State Finance and Credit Organisation or the State Investment Company (as the case may be), (iii) the Ministry, and (iv) the Commission for Coordination of Measures for the Implementation of Investment Projects;
- Governmental act: After the Proposal is approved by the respective competent authority, the Ministry (i) prepares a draft act of the CMU on granting of the state guarantee (the “Act”), (ii) endorses such draft Act with the Ministry of Finance of Ukraine, and (iii) submits the draft Act to the CMU for consideration, which in its turn adopts the Act;
- Agreement on the compensation of expenses: Within 10 days of the adoption of the Act by the CMU, the Applicant and the Ministry of Finance of Ukraine enter into the agreement concerning the compensation of any expenses that may have to be paid out of the State Budget due to execution of the state guarantee; and
- Signing: The Minister of Finance signs the document granting the state guarantee.
Law: Resolution of the Cabinet of Ministers of Ukraine ‘On the Approval of the Procedure and Terms for Granting State Guarantees in 2011 for Securing the Debt Obligations of Businesses under Borrowings Attracted for the Implementation of Investment, Innovation, Infrastructure and Other Development Projects, which are of a Strategic Importance and the Implementation of which Will Strengthen the Development of the National Economy’ No. 611, dated 9 June 2011.