Automatically translated version. May contain inaccuracies compared to the original.
Kolomoisky and Boholyubov: NBU must accept a payment from PrivatBank for 4,4 billion UAH
According to materials of the Kyiv Commercial Court dated 22 September, PrJSC Aerobud filed a lawsuit against the NBU and PrivatBank declaring the inaction unlawful, obliging repayment of the debt by transferring and accepting funds; the claim amount is 4,4 billion UAH.
PrJSC Aerobud also filed a suit against the NBU declaring the guarantee terminated and another suit seeking termination of mortgage agreements No.22 dated 06.03.2015 and No.23 dated 06.03.2015 (PrivatBank appears as a third party in both cases).
According to the state register, among the founders of PrJSC Aerobud are the Cypriot companies Broalia Ventures LTD, Gringot Enterprises Limited, Sisera Investments Limited, Formosa Investments Limited, Renalda Investments Limited. These same Cypriot entities (except Renalda Investments Limited) are founders of LLC Football Club Dnipro. Moreover, in the state register their ultimate beneficiaries are listed as Ihor Kolomoisky and Hennadiy Boholyubov.
As Finbalance wrote, according to the NBU, as of 01 September PrivatBank’s overdue debt to the NBU on refinancing amounted to 11,8 billion UAH. Over 8 months PrivatBank reduced its debt to the NBU by 6 billion UAH — to 12 billion UAH.
Also, as Finbalance wrote, on 14 September the Kyiv Commercial Court partially satisfied the claim of LLC Arlan (ultimate beneficiaries – I. Kolomoisky and H. Boholyubov) and obliged PrivatBank to repay the debt to the NBU under loan agreement No.19 dated 03.03.2009 by transferring funds to the NBU account in the “full amount of the debt.” LLC Arlan pointed to the NBU’s inaction, expressed in its failure to accept from the bank repayment of debts under loan agreement No.19 dated 03.03.2009 concluded between the NBU and PrivatBank.
According to court materials, during the 2009–2016 years the NBU and PrivatBank repeatedly concluded additional agreements to the specified loan agreement. Under the wording of the agreement dated 12.06.2014, the NBU provides PrivatBank a loan in the total amount of 7,7 billion UAH for the period from 03.03.2009 to 23.12.2016.
As LLC Arlan noted during the court proceedings, despite PrivatBank’s ability to repay the debt, “the NBU allows inaction with respect to accepting from the bank the proper fulfillment of such an obligation in order to satisfy its claims at the expense of the property pledged (mortgaged), including under mortgage agreements No.36 and No.37” (quote).
The court, in turn, pointed out that according to PrivatBank’s reporting for Q2, as of 30.06.2017 the balance in its account at the NBU amounted to 7,7 billion UAH, and at the date of consideration of the claim PrivatBank had funds from which it could repay the debt to the National Bank.
As Finbalance wrote, on 13 September the Kyiv Court of Appeal refused to satisfy the NBU’s appeal against the Kyiv Commercial Court’s decision dated 30.06.2017, which had granted the claim of LLC Agroterminal Logistic against the NBU and recognized PrivatBank’s obligation to the NBU under loan agreement No.120 dated 05.12.2014 in the amount of 996,1 million UAH terminated, an obligation that had been fulfilled by Agroterminal Logistic. The collateral for that loan is the grain terminal Boryvazh (under mortgage agreement No.121 dated 08.12.2014).
The essence of this conflict is that the funds which LLC Agroterminal Logistic paid instead of PrivatBank were credited by the NBU as payment for another loan agreement (No.10 dated 20.02.2015). In this way the NBU attempted to retain the grain terminal Boryvazh as collateral. However, the court stated that this violated the rights of the property guarantor, and therefore ruled in favor of LLC Agroterminal Logistic.
In addition, on 11 September the Kyiv Commercial Court refused to satisfy the NBU’s claim against LLC Agroterminal Logistic (owner of the Boryvazh grain terminal) and PrivatBank to recognize loan agreement No. DNHSLOK271016 dated 27.10.2016, concluded by the defendants, as sham and as executed by the parties to conceal another transaction, namely a power-of-attorney agreement for payment of funds toward repayment of PrivatBank’s debt to the National Bank.
On 13 September the Kyiv Commercial Court opened proceedings in the case brought by LLC Agroterminal Logistic against the NBU seeking termination of the mentioned mortgage agreement No.121 dated 08.12.2014, and on 14 September – in the case brought by LLC Agroterminal Logistic against the NBU and PrivatBank seeking “recognition of unlawful inaction and obligation to take actions” (in the context of the aforementioned loan agreement No. 120 dated 08.12.2014).
Additionally, PJSC Marganets Mining and Processing Plant (controlled by the “Privat” group) applied to the Kyiv Commercial Court with a claim against the NBU and PrivatBank declaring the NBU’s inaction unlawful and obliging PrivatBank to transfer 2,6 billion UAH to the NBU account.
At the same time, PJSC Dniproazot, PJSC Nikopol Ferroalloy Plant, PJSC Marganets Mining and Processing Plant, PJSC Pokrovsk Mining and Processing Plant (formerly Ordzhonikidze Mining and Processing Plant) and other enterprises associated with I. Kolomoisky and H. Boholyubov have filed a number of suits against the NBU seeking termination of mortgage and pledge agreements.
As Finbalance wrote, according to court materials, the Pechersky District Court of Kyiv scheduled for consideration case No.757/53518/17-ts filed by Ihor Kolomoisky against the NBU and PrivatBank seeking termination of the guarantee agreement on 05 April 2018.
At the same time, I. Kolomoisky withdrew one of the suits against the NBU and PrivatBank “seeking obligation to take actions” (case No.757/53618/17-ts), but filed a new one – “seeking recognition of actions as unlawful” (case No.757/57102/17-ts).
In addition to the suits by I. Kolomoisky against the NBU and PrivatBank, there are the following:
- case No.757/54509/17-ts: about termination of an action that violates a right; - case No.757/54512/17-ts: about termination of a legal relationship; - case No.757/32503/17-ts: about termination of a guarantee agreement. - case No.826/7432/17: about annulment of state decisions recognizing PrivatBank insolvent, about its nationalization and recapitalization at the state’s expense.
Previously the head of the analytical department of investment company Concorde Capital, Oleksandr Paraschiy, told Finbalance that so far the only leverage for the state to forcibly recover debt from PrivatBank’s corporate borrowers, whom the NBU ties to the bank’s former shareholders, is Kolomoisky’s personal guarantee on refinancing loans.
“But I think it’s all bleak there. First, it’s unknown whether that obligation is valid at all (the bank’s last annual report says nothing about it). Second, I don’t see a real mechanism for such recovery. According to resolution No.259 on refinancing, the NBU can seize refinance collateral only after seizing funds from the bank’s correspondent account, after those funds prove insufficient. Moreover, to trigger the seizure mechanism, PrivatBank would have to default on refinancing. And that’s absurd — a super-reliable bank in default. Maybe then it would need to be declared troubled,” O. Paraschiy noted.
Former chairman of Oshchadbank and current chairman of the Ukrainian Interbank Currency Exchange, Anatoliy Huley, told Finbalance he doubted I. Kolomoisky would have sued the NBU to terminate a guarantee on PrivatBank’s refinancing debts without legal arguments for doing so.
“If the guarantor who gave the guarantee wants to withdraw his signature, then most likely today that guarantee either does not operate, or is not fully functional, or raises doubts among lawyers as to the possibility/necessity of enforcement,” the financier remarked.
As LigaBusinessInform reported, lawyer Andriy Dovbenko of Ervis Law Firm said “Kolomoisky’s strategy is based on the fact that conditions have changed since the guarantee agreement was concluded.” “If it is possible to prove that he would not have assumed the guarantee had he known the bank would be nationalized, the suit could well be satisfied,” the jurist observed.
At the end of July the press service of PrivatBank told Finbalance that the refinancing loans repaid by the bank in the first half of 1 amounted to 5,1 billion UAH — loans that had been taken from the National Bank before nationalization.
“PrivatBank repaid refinancing in the first half of the year by monetizing government bonds 12.01.2017 in the amount of 1.4 billion UAH, as well as from funds raised on the market and its own funds. No seizure of collateral by the NBU was carried out.
Formally there was a reduction in I. Kolomoisky’s obligations [under the guarantee provided to the NBU for refinancing loans, ed.], but only under those agreements where the collateral for the loans was a portfolio of PrivatBank client card loans (excluding related parties and clients living in the ATO zone), i.e., the bank’s own obligations.
Kolomoisky’s guarantee at the time of nationalization and now covers 100% of PrivatBank’s obligations to the NBU,” PrivatBank stated.
PrivatBank also noted that the total amount of loans it had taken from the NBU from the beginning of 2014 to the moment of nationalization amounted to 22,3 billion UAH.
“During the nationalization period 19–22.12.2016 PrivatBank received loans from the NBU in the amount of 25 billion UAH and repaid them 28.12.2016 thanks to monetization of government bonds [which were contributed by the government to the bank’s capital, ed.].
The amount of NBU loans repaid from the beginning of 2016 to the moment of nationalization was 7,351 billion UAH, and after — 31,482 billion UAH,” PrivatBank noted.
The bank also provided data that in 2014–2016 years the volume of its interest payments on loans taken from the NBU amounted to 17,3 billion UAH, and by the end of July-2017 – 1,9 billion UAH.
“After nationalization there was no significant easing of the interest rate on NBU loans. The average rate remains at 19,8% per annum, so servicing NBU loans remains quite burdensome,” PrivatBank emphasized.
“The structure of PrivatBank’s debt to the NBU as of 01.07.2017 remains as it was formed before nationalization and amounts to 12,719 billion UAH. That is, PrivatBank did not take new loans from the NBU in 2017 (short-term liquidity support funds in December were returned by the beginning of 2017),” the bank’s press service stressed.
PrivatBank clarified that as of the end of July the NBU monetized government bonds contributed to the bank’s authorized capital in the amount of 27,2 billion UAH.
“The bank’s liquidity today allows it to meet obligations to clients and conduct active operations.
At present monetization of government bonds is not on the agenda, but the bank has the option to do so up to 15,8 billion UAH.
An adequate portfolio of government securities and income from active operations provide cash flow to cover interest payments.
Also, the bank’s policy at the moment is to work on reducing the cost of borrowed funds across all borrowing currencies,” PrivatBank noted.
Earlier, Deputy Governors of the NBU Kateryna Rozhkova and Dmytro Sologub told Finbalance that in their view, PrivatBank would not need monetization of government bonds contributed by the government to the bank’s capital before the end of the year.
finbalance.com.ua
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